CONSTRUCTION LOAN AGREEMENT
THIS AGREEMENT, made and entered into November 30, 1998, by and
between FEATHERLITE, INC., formerly known as FEATHERLITE MFG., INC., whose
address, for purposes of this Agreement, is 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000 (hereinafter called "Owner"), and FIRST UNION NATIONAL BANK, whose
address, for purposes of this Agreement, is Xxxx Xxxxxx Xxx 0000, Xxxxxxx,
Xxxxxxx 00000 (hereinafter called "Lender").
W I T N E S S E T H:
Owner has applied to Lender for a loan to aid in the construction of a
sales and service facility on Owner's real property. Lender has agreed to make a
construction loan to Owner, and Owner has agreed to accept such loan on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the execution and simultaneous
delivery of the Loan Documents and of the mutual and separate agreements,
conditions, covenants, representations and warranties of the parties hereto, it
is agreed, covenanted, represented and warranted by and between the parties as
follows:
ARTICLE 1
DEFINITIONS
1.01 As used in this Construction Loan Agreement, the following terms
shall have the meanings indicated opposite each of them:
Property: See attached Exhibit "A".
Mortgage: The mortgage deed of even date herewith encumbering
the Property, given by Owner to Lender to secure the
Note.
Note: The promissory note of even date herewith in
the original principal amount of FOUR
MILLION AND NO/100 DOLLARS ($4,000,000.00)
given by the Owner to the Lender to
represent the Construction Loan.
Construction Loan: The loan contemplated by this Construction Loan Agreement.
Loan Documents: The Note, the Mortgage, the Construction Loan Agreement,
Financing Statements, and all other documents executed
by Owner in connection with the Construction Loan.
Plans: The final plans and specifications for construction
of the Improvements prepared by Owner's Architect
and heretofore approved by Lender and all amendments and
modifications thereto made with the approval of the
Lender.
Improvements: The Improvements described in the Plans and in the
Application for the Construction Loan. Without
limiting the foregoing, the term "Improvements" shall
include all landscaping, walls, drives, approaches,
sidewalks, curbs, paving, and all chattels, furniture,
furnishings, fixtures and equipment described in the
Plans or described in the application for the
Construction Loan, and all building materials,
machinery, appliances and equipment to be incorporated in
or affixed to the Improvements described in the Plans.
Owner's Contractor: Xxxxxxx General Contractor, Inc.
Owner's Architect: ________________________________________________________
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE OWNER
2.01 The Owner is indefeasibly seized of the Property in fee simple and
has full power and lawful right to convey and mortgage the same. The Property is
free and clear of all encumbrances except current taxes which are not yet due
and payable.
2.02 No materials of any kind have been placed on the Property, and no
labor has been performed thereon incident to the Improvements within the next
preceding ninety (90) days; there are no unpaid bills for labor, materials,
supplies or services furnished upon the Property; and no Notice of Commencement
or claim of lien affecting the Property or the Improvements has been filed in
the Public Records of the County in which the Property is located, and no such
Notice of Commencement or claim of lien will be so filed prior to the recording
of the Mortgage.
2.03 The Plans shall not be deemed to be complete unless they shall
include detailed provisions for convenient ways of access by either foot or
vehicle to all proposed buildings included in the Improvements and also all
necessary paving of private ways, curbs, sidewalks, gutters, landscaping,
easements and utility connections, and all equipment necessary for the operation
of the Improvements as a completed project. The master set of Plans shall be
deposited with the Lender and, when so deposited, shall govern all matters that
may arise with respect thereto. Before being so deposited, the Plans will be
subject to approval by the Lender, and, to the extent required by applicable law
or any effective restrictive covenant, by all governmental authorities and the
beneficiary of any such covenant, respectively. Owner shall secure all such
approvals.
2.04 All utilities services necessary and adequate for the construction
of the Improvements and the operation thereof for their intended purpose are
available for the use of Owner at the boundaries of the Property, including
water supply, storm and sanitary sewer facilities, electric, and telephone
facilities, and evidence thereof satisfactory to Lender shall be submitted to
Lender before closing of the Construction Loan. Applicable zoning regulations
will permit the construction and use of the Improvements for a sales and service
facility, and evidence thereof satisfactory to Lender shall be submitted to
Lender before closing of the Construction Loan.
2.05 Representations made by the Owner in financial statements
furnished to the Lender in connection with application for the Construction
Loan, and all representations made in such application, are true as of the date
hereof.
2.06 All necessary licenses and permits have been obtained to permit
the completion of the Improvements.
2.07 All labor and materials contracted for or in connection with the
construction of the Improvements shall be used and employed solely on the
Property and in said construction, and only in accordance with the Plans.
2.08 The monies disbursed under this Construction Loan Agreement shall
constitute a trust fund and shall be used solely for the payment of Owner's
costs and for no other purpose unless another use is specifically provided for
in this Construction Loan Agreement, or consented to in writing by Lender.
2.09 Each of the representations and warranties set forth in this
Article will be true on the date of each advance hereunder and the acceptance of
any advance hereunder by Owner shall be deemed to be a reaffirmation of each of
said representations and warranties.
ARTICLE 3
OWNER'S COVENANTS
The Owner covenants and agrees with Lender as follows:
3.01 The Owner will cause to be furnished to the Lender at Owner's
expense, forthwith and prior to the disbursement of any funds hereunder, a
policy of title insurance covering the Property in the aggregate sum of the
Mortgage, in a company acceptable to Lender. Said policy shall show the party
named as Owner to be vested with a valid insurable fee simple title, free and
clear of all exceptions and encumbrances whatsoever except the Mortgage, current
taxes not yet due and payable, and covenants and restrictions without right of
reverter or forfeiture of title in case of violation thereof, and which do not
prohibit or limit construction or operation of the Improvements, and shall
insure the Lender and its nominee or assigns that the Mortgage is a valid first
lien on the Property subject only to the exceptions expressly permitted in this
Agreement. Such title insurance policy shall be effective from the time of the
recording of the Mortgage.
3.02 The Owner shall, forthwith and prior to the disbursement of any
funds hereunder, furnish to Lender at Owner's expense a current print of survey
showing the Property to be free from encroachments and encumbrances, which
survey shall meet all the requirements of the title insurer to enable the title
insurer to eliminate any exception for survey matters from the title insurance
policy. At request of Lender, Owner shall furnish a supplemental survey or
surveys showing all foundations of the Improvements to be in place, properly
located on the Property and not in violation of any covenant or restriction or
zoning ordinance affecting the Property. Upon completion of the Improvements,
Owner shall furnish to Lender at least two prints of survey showing the
Improvements to be complete and properly located on the Property. Such surveys
shall be made by a civil engineer or surveyor acceptable to the Lender and shall
be paid for by Owner. All required surveys shall be certified to the Lender and
the title insurance company insuring the lien of the Mortgage.
3.03 Owner shall furnish and pay the premiums for fire and extended
coverage insurance (including Builder's Risk Insurance) and insurance against
such other hazards as may be required by Lender, in a company or companies
acceptable to the Lender, for the full insurable value of the Improvements, and
covering the same, said policies to be in amount and form acceptable to Lender.
Loss under such insurance policies shall be payable first to the Lender to the
extent of its interest or lien, and shall not be cancellable without at least
ten (10) days' written notice by insurer to Lender. Owner shall also furnish, at
Owner's expense, general comprehensive liability insurance required by Lender.
3.04 Owner shall construct the Improvements on the Property in a true,
thorough, workmanlike and substantial manner and in accordance with the Plans.
Owner shall provide, at Owner's cost, all manner of materials, labor,
scaffolding, implements and cartage of every description for the due performance
of the several works and complete construction of the Improvements. Owner shall
not make any changes in the Plans or deviate therefrom except with the written
consent of the Lender.
3.05 Owner shall take all necessary steps to assure that construction
and installation of the Improvements shall commence not later than thirty (30)
days from the date of this Construction Loan Agreement, shall proceed
continuously and diligently, and shall be completed within twelve (12) months
from the date hereof.
3.06 Owner shall furnish, before each advance herein agreed to be made
and on completion of construction, all receipted bills, certificates,
affidavits, releases of lien and other documents which may be required by the
lien laws of the State of Florida, or which may be required by the Lender or the
title insurance company providing the title insurance coverage described in
Section 3.01, as evidence of full payment for all labor and materials incident
to the construction of the Improvements for which prior advances of Construction
Loan proceeds have been requested and made, and the Owner will, at the same
time, furnish partial releases from all persons receiving payment from
Construction Loan proceeds for the amount of payments received. Prior to the
final payment of the remaining Construction Loan proceeds to or for the account
of the Owner, the Owner shall furnish satisfactory proof of payment of all
accounts and claims for labor, material and services furnished in connection
with the Improvements.
3.07 If the Owner at any time prior to the completion of the
Improvements abandons the same or ceases work thereon for a period of more than
twenty (20) days or fails to complete the Improvements substantially in
accordance with the Plans, except as to changes approved as herein provided by
the Lender or makes material changes in the Plans without first securing written
approval of the Lender or otherwise fails to comply with the terms hereof, any
such failure shall be a default hereunder, at the option of the Lender, and the
Lender may terminate this Agreement, or the Lender, at its option, at any time
thereafter may enter into possession of the premises and perform any and all
work and labor necessary to complete the Improvements substantially according to
the Plans and employ watchmen to protect the Property from injury. All sums so
expended by the Lender shall be deemed paid to Owner and secured by the
Mortgage. For this purpose, the Owner hereby constitutes and appoints the Lender
as true and lawful attorney-in-fact with full power of substitution in the
premises, to complete the Improvements in the name of the Owner, and hereby
empowers said attorney or attorneys as follows: to use any funds of the Owner,
including any balance which may be held in escrow and any funds which may remain
unadvanced under the Mortgage, for the purpose of completing the Improvements in
the manner called for by the Plans; to make such additions and changes or
corrections in the Plans as shall be necessary or desirable to complete the
Improvements in substantially the manner contemplated by the Plans; to employ
such contractors, subcontractors and agents, architects and inspectors as shall
be required for said purposes; to pay, settle or compromise all existing bills
and claims which may be liens against the Property, or as may be necessary or
desirable for the completion of the job, or for clearance of title; to execute
all applications and certificates in the name of the Owner which may be required
by any of the contract documents; and to do any and every act which the Owner
might do in its own behalf. It is further understood and agreed that this power
of attorney shall be deemed to be a power coupled with an interest and cannot be
revoked. The above-mentioned attorney shall also have the power to prosecute and
defend all actions or proceedings in connection with the construction of the
Improvements on the Property and to take such action and require such
performance as said attorney deems necessary. The Owner hereby assigns and
quit-claims to the Lender all sums advanced under the Mortgage and on sums due
in escrow, conditioned upon the use of said sums in trust for the completion of
the Improvements, such assignment to become effective only in case of the
Owner's default.
3.08 Owner will not convey or encumber the Property in any way without
the consent of the Lender (except for the Mortgage and all advances made and to
be made hereunder), nor shall Owner assign any rights under this Construction
Loan Agreement or any part of any advance to be made hereunder.
3.09 Owner will permit Lender and its representatives to enter upon the
Property, inspect the Improvements and all materials to be used in the
construction thereof, and to examine all detailed plans and shop drawings which
are or may be kept at the construction site, and all books and records of Owner
relating to the Property, and will cooperate with the Lender and Lender's
representatives to enable it to perform its functions hereunder. It is expressly
agreed that any inspections made by Lender or its representatives shall be made
solely for the protection and benefit of the Lender, and the Owner shall not be
entitled to claim any loss or damage either against the Lender or its
representatives for failure to properly discharge their duties to Lender.
3.10 Owner agrees that it will correct any work performed and replace
any material that does not substantially comply with the Plans. In the event of
any dispute between Owner and Lender with respect to the interpretation and
meaning of the Plans, the same shall be determined by Lender and the decision of
Lender shall be final and conclusive on the parties.
3.11 Construction Loan interest, excluding prepaid interest, shall be
charged on the amounts disbursed from the date of disbursement and shall be
payable monthly on the 15th day of each month without demand, commencing on the
15th day of the month following the first disbursement of funds hereunder. All
such interest may be disbursed by Lender to itself from the proceeds of the
Construction Loan, or alternatively, Lender may charge any bank account of Owner
maintained by Owner with the Lender.
3.12 Owner covenants, warrants and agrees that it will provide from its
own funds without secondary financing involving any mortgage or other lien
against the Property (except the Mortgage), such amounts as may be necessary to
pay for all costs of the Improvements which are in excess of the disbursements
required to be made by Lender hereunder, and Lender shall not be required to
make any disbursement hereunder if the undisbursed proceeds of the Construction
Loan shall be less than the amount necessary to pay for the completion of the
Improvements. If, for any reason, the undisbursed Construction Loan proceeds
shall be at any time insufficient for such purpose, Owner will, within fifteen
(15) days after written request by Lender, deposit the deficiency with the
Lender, and such deposit shall be first disbursed in the manner provided in
Article 4 hereof before any further disbursements of the proceeds of the
Construction Loan shall be made. The judgment and determination of Lender as to
the amount necessary to pay for the completion of the Improvements shall be
final and conclusive.
3.13 To the end that the agreements of the Owner set forth herein and
in the Loan Documents shall be effectively and fully performed and the intent
and purpose of this Construction Loan Agreement fulfilled, Owner agrees to
execute all such other and further instruments as may reasonably be required by
Lender from time to time in order to carry out the provisions of protecting,
maintaining or enforcing Lender's security for the Construction Loan.
3.14 All right, title and interest of the Owner in any facilities or
property intended to be used in connection with the Improvements shall be
assigned by Owner to the Lender as additional collateral to secure the Note
until such time as the Note shall have been paid in full.
3.15 Owner agrees to pay all costs, including reasonable attorneys'
fees, incurred by the Lender in connection with preparation of the Loan
Documents and in the enforcement thereof and in connection with the review of
any other documents submitted to Lender for its approval in accordance with the
provisions hereof, and the Lender is authorized to disburse such costs and
expenses from the Construction Loan proceeds.
ARTICLE 4
ADVANCES DURING CONSTRUCTION
4.01 Lender will disburse and Owner will accept the proceeds of the
Construction Loan in the following manner:
A. Initial Disbursement: Simultaneously with the execution and
delivery of this Construction Loan Agreement, the Note, Mortgage and
other Loan Documents, there shall be disbursed to or on behalf of Owner
the sum of $ 0.00 of the loan proceeds as an initial disbursement
hereunder for the purpose of paying the costs incident to the closing
of the loan transaction contemplated hereunder, and paying or
reimbursing Owner for construction and development costs related to the
Property and Improvements incurred prior to the date of such initial
disbursement.
B. Construction Disbursements: The balance of the Construction
Loan proceeds remaining to be disbursed subsequent to the initial
disbursement; i.e., $4,000,000 hereinafter called "Construction
Disbursements", shall be disbursed during the progress of the
construction of the Improvements only on the terms and conditions
hereinafter provided. The Construction Disbursements shall be made on
the basis of written requests therefor submitted by Owner to Lender in
the form and with such supporting documentation as are herein
specified, to wit:
(1) Each request for a Construction Disbursement
shall be in the form of a request from Owner for the
disbursement by Lender of a stated amount of the Construction
Loan proceeds which will be sufficient to reimburse Owner for
costs actually expended by Owner prior to the date of such
request for the Construction Disbursement and to pay for
Owner's costs which are due and payable on the date of such
request.
(2) Each request for Construction Disbursement shall
be, at the option of Lender, accompanied by receipted invoices
(or other evidence of payment satisfactory to Lender) for all
of Owner's costs which have been paid prior to the request for
disbursement, and shall be accompanied by invoices not
receipted covering Owner's costs which are then due and
payable but which have not been paid.
(3) Each request for Construction Disbursement shall
also be accompanied by a certification on the part of Owner,
Owner's Contractor and Lender's inspector, stating that all
labor and materials for which disbursement is being requested
have, in fact, been used in the construction of the
Improvements and the work for which disbursement is being
requested has, in fact, been accomplished in accordance with
the plans and in a good and workmanlike manner; that all
certifications, inspections and approvals which may be
necessary or customary at such stage of construction have been
received; and that Owner is entitled to the Construction
Disbursement requested.
(4) Each request for a Construction Disbursement
shall set forth in percentage terms that portion of the total
construction work to be completed pursuant to this
Construction Loan Agreement and in accordance with the Plans
which have in fact been completed as of the date of such
request, and such percentage of completion shall be certified
by Owner, Owner's Contractor and Lender's inspector.
(5) Each request for a Construction Disbursement
shall also include a certification by Owner that all bills for
labor, materials and services then incurred and payable in
connection with the construction of the Improvements have been
paid or will be paid from the Construction Disbursement being
requested and that all prior Construction Disbursements have
been expended by Owner only in connection with the
construction of the Improvements on the Property contemplated
herein.
(6) Each request for a Construction Disbursement
shall likewise be accompanied and supported by such other
documents, certifications or assurances as Lender may from
time to time, in its sole discretion, deem necessary. During
the course of construction, the Owner, Owner's Contractor and
the Lender's inspector, shall certify monthly that percentage
of the total work to be completed in accordance with the Plans
which has actually been completed at the time of such
certification. Provided that the Lender has received a written
request for disbursement in the form and with such supporting
documentation as required above, the Lender shall disburse to
the Owner (or in the discretion of the Lender, jointly to the
Owner and Owner's contractor) such portion of the Construction
Disbursement as is equal to that percentage of the work
completed, less ten percent (10%) of said amount and less all
amounts of Construction Disbursements previously disbursed.
It is expressly provided, however, that notwithstanding the amount of a
Construction Disbursement requested or the amount of costs paid by Owner or the
certification of the percentage of completed construction, at no time shall the
Lender be obligated to disburse funds in excess of the amounts recommended by
its inspector. The determination by the Lender of the amount of Owner's costs
and the percentage of completion which properly form the predicate for any
Construction Disbursement shall be final and conclusive.
C. Final Disbursement: Lender will disburse to the Owner all
undisbursed Construction Loan proceeds upon the following conditions:
(1) the completion of all of the Improvements contemplated by this
Agreement to the satisfaction of the Lender; (2) certification by
Owner's architect and Lender's inspector that the Improvements have
been completed in accordance with the Plans; (3) the issuance of a
permanent Certificate of Occupancy or such other permits and
certificates as shall be required for the contemplated operation of the
mortgaged premises as a sales and service facility by all governmental
authorities having jurisdiction over the Property and the Improvements;
(4) the Owner's delivery to Lender of proof satisfactory to Lender that
all bills for labor and materials for the construction of the
Improvements have been paid in full together with such properly
executed affidavits and lien waivers in connection with said
construction as the Lender or its attorneys may require; and (5) when
Lender is otherwise satisfied that Owner has fulfilled any previously
unfulfilled terms, conditions or requirements of the Loan Documents.
4.02 To the extent feasible, Owner shall request Construction Loan
advances only once each month. Each such request shall be made in writing and
submitted directly to Lender's Construction Loan Administration Department, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (0-000-000-0000). Lender shall
not be required to make any such advance until at least five (5) business days
after the receipt of request therefor. Funds shall be disbursed in accordance
with this Construction Loan Agreement directly to the Owner or, at the option of
the Lender, such funds may be disbursed by checks payable to the Owner and to
any other person, firm or corporation to whom Owner is indebted for work done on
the Property, or, at its option, Lender may make such disbursements directly to
Owner's contractors, or to any subcontractor or sub-subcontractor, laborer or
materialman who may have performed work on or furnished material to the
Property, and the execution of this Construction Loan Agreement by the Owner
shall and hereby does constitute an irrevocable direction and authorization to
so advance the funds.
4.03 Lender may, at its option, disburse funds to Owner whether under
the terms of this Construction Loan Agreement such disbursement is required or
not. Part or the whole of any advance may be disbursed before or after it
becomes due if the Lender deems it advisable to do so. All such advances shall
be deemed to have been made pursuant to this Construction Loan Agreement and not
in modification thereof.
4.04 Lender may disburse to itself any sums payable to Lender by Owner
on account of interest, costs, charges, fees, brokerage commissions or other
expenses including fees of Lender's attorneys, with like effect as if the same
had been made to Owner. Until such time as the full amount of the Construction
Loan has been disbursed, Lender is hereby authorized to disburse to itself on
the 15th day of each month the amount of the interest payable on the Note or
hereunder.
4.05 Except as is hereinabove provided, disbursements of proceeds of
the Construction Loan will be made only as justified in the sole opinion of the
Lender by the progress of construction.
ARTICLE 5
CONDITIONS TO ADVANCES
All advances or parts of advances will be made subject to the following
conditions as to each advance (each of which Owner covenants to fulfill):
5.01 That Owner has fully complied with all of the provisions of the
Loan Documents and is entitled to such advance, it being understood that the
making of any advance or part thereof when Owner is not so entitled will not
constitute waiver of such compliance.
5.02 That the terms and conditions of the Loan Documents have been
complied with and there is then no existing default thereunder.
5.03 That the Mortgage is a valid first lien for the full amount then
and theretofore advanced and a good and insurable title to the Property is
vested in the Owner free and clear of all encumbrances except as herein
otherwise provided.
5.04 That the Improvements have been constructed in strict accordance
with the Plans, and the construction thereof and materials used therein are
satisfactory to Lender.
5.05 That the Lender has been furnished with a written certificate of
the Owner as to whether or not the Owner or its agent has been served with any
written notice that a lien may be claimed for any amounts unpaid for materials
furnished or labor performed by any person, firm or corporation furnishing
materials or performing labor of any kind in the construction of any
Improvements. If such notices to the Owner have been served on the Owner, the
notices served shall be listed on the certificate and copies thereof shall be
furnished to the Lender.
5.06 That the Owner has procured (if required by Lender) verified
mechanics' lien waivers and receipted bills showing payment of all parties who
have furnished materials or performed labor of any kind entering into the
construction or installation of any of the Improvements.
5.07 That the Owner has furnished to the Lender evidence satisfactory
to the Lender that the undisbursed proceeds of the Construction Loan will be
sufficient to pay the cost of completing the Improvements as required by the
Loan Documents.
5.08 That the said Improvements are not being constructed in violation
of any covenants or restrictions or zoning ordinances affecting the Property,
and evidence thereof, including copies of all such covenants, restrictions and
zoning ordinances, satisfactory to Lender, has been furnished to Lender.
5.09 That (when required by the Lender) the Lender shall have received
an endorsement with respect to the title insurance policy theretofore delivered,
indicating that since the last preceding advance there has been no change in the
state of title to the Property and no survey exceptions not theretofore approved
by Lender, which endorsement shall have the effect of increasing the coverage of
said policy by an amount equal to the advance then being made unless the policy
by its terms provides for such additional coverage without such endorsement.
5.10 That Owner has furnished to Lender a copy of all building permits
issued and applicable to any existing or future construction on the Property.
5.11 That Owner has furnished to Lender a construction schedule
including an estimate, satisfactory to Lender, as to the date and amount of each
proposed draw of construction funds to completion of the Improvements.
5.12 That Owner has furnished to Lender, as the same are acquired, all
soil and compaction tests for the land underlying the Improvements together with
a statement from a soil engineer acceptable to Lender certifying that the land
upon which the Improvements are to be constructed will adequately support the
Improvements.
5.13 That Owner has furnished to Lender, at no cost to Lender, in
connection with each request for an advance, the certificate of Lender's
inspector that such advance, in the amount requested, is properly to be made by
Lender hereunder.
ARTICLE 6
AGREEMENTS RELATING TO CONTRACTORS
6.01 The rights of all contractors, subcontractors, sub-subcontractors
and materialmen performing any work in connection with the Improvements, or
furnishing any services, labor or materials thereto, shall be subordinate and
inferior to the Mortgage. Lender shall not be liable to any materialmen,
contractor, subcontractor or sub-subcontractor, laborer or others for goods or
services furnished or delivered by them to or upon the Property or employed in
the Improvements.
6.02 Owner hereby assigns to Lender, effective only in the event of
default by Owner under the Loan Documents, all rights of Owner under its
contract or contracts with Owner's contractor and subcontractors and under its
contract with Owner's architect and Owner's engineer, and Lender shall have the
option after default, in addition to any rights and remedies Lender may have, to
exercise its rights under this assignment. Nothing herein shall be construed to
require Lender to exercise any rights under this section.
ARTICLE 7
DEFAULTS
7.01 If the Owner fails to perform according to the terms of this
Construction Loan Agreement, or if Owner's contractor or subcontractors fail to
perform according to the terms of their contracts with Owner, or if Owner shall
cause or permit conditions to arise so that performance would be rendered unduly
difficult or hazardous for the Lender, or if the Owner shall fail, neglect or
refuse to perform any of Owner's promises or agreements hereunder or breach any
promise, covenant, warranty or agreement made in the Loan Documents, or if it
shall appear that the Improvements are being constructed in violation of any
covenants or restrictions or zoning ordinances affecting the Property, or if it
becomes apparent that the Owner and Owner's contractors will not complete the
Improvements within the time specified herein, or if the Owner shall become
insolvent, or if there is filed a voluntary or involuntary petition in
bankruptcy of the Owner, and the same is not dismissed within 45 days, or an
assignment for the benefit of creditors is made by the Owner, then and in either
such event the Owner shall be considered in default hereunder and the Lender
may, at its option, without prejudice to any other right or remedy Lender may
have as a matter of law, either:
(a) Withhold further disbursements hereunder; or
(b) At its option, declare all sums evidenced by the Note and
secured by the Mortgage, and all sums due hereunder, to be
immediately due and payable, and unless same are paid on
demand, may foreclose the Mortgage; or
(c) Enter upon and take possession of the Property and assume
full charge of the construction of the Improvements as the
agent of the Owner and Owner's contractors may complete, or
enter into a contract with another to complete, the
Improvements.
The Owner agrees to pay the Lender, on demand, all costs and expenses of
completion of the Improvements, including all sums disbursed by the Lender
incident to said completion and a reasonable charge by the Lender for its
services incident thereto and reasonable attorney's fees incurred by the Lender
incident to said default and the completion of construction, or incident to the
enforcement of any provisions hereof, and all such sums, even though they may,
when added to the monies advanced and disbursed under this Construction Loan
Agreement, exceed the amount of the Note, shall be secured by the lien of the
Mortgage as though the same were a part of the debt originally described in and
secured thereby. If said sums are not paid by the Owner immediately on demand,
the Lender may declare all such sums, and all other sums secured by the
Mortgage, immediately due and payable and may proceed to foreclose the same.
7.02 The times provided for Owner's performance of its covenants and
agreements hereunder are of the essence of this Construction Loan Agreement.
ARTICLE 8
NOTICES
8.01 For the purpose of any notice or demand here under, the address of
the Owner is as set forth on Page 1. Notice or demand shall be deemed to be
given and made when delivered to Owner, or when deposited in the United States
mail, postage prepaid, addressed to Owner at the address given on Page 1.
ARTICLE 9
MISCELLANEOUS
9.01 Nothing herein shall be construed to waive or diminish any right
or security of the Lender under the Note or Mortgage. It is the purpose and
intent hereof to provide safeguards, protections and rights for the Lender in
addition to those provided in the Note and Mortgage and to better secure the
Mortgage.
9.02 This Construction Loan Agreement shall be binding upon and inure
to the benefit of the parties hereto and their heirs, legal representatives,
successors and assigns. The Owner may be released from obligations and
agreements hereunder only by written instrument of the Lender specifically
providing for such release.
9.03 Owner agrees that during the period of the construction of the
Improvements, Lender shall have the right to erect and maintain on the Property
a sign in form, size and location, satisfactory to Lender, indicating the
financing of the construction by Lender.
9.04 Owner and Lender agree that all matters relating to this
Construction Loan Agreement and the Loan Documents shall be governed by the laws
of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this instrument in manner
and form sufficient to bind them as of the day and year first above written.
Signed, sealed and delivered in the presence of:
__________________________________ FEATHERLITE, INC., formerly known as
Name:_____________________________ FEATHERLITE MFG., INC.
__________________________________
Name:_____________________________ By:__________________________________
Name:________________________________
Title:_______________________________
OWNER
FIRST UNION NATIONAL BANK
__________________________________
Name:_____________________________
By:__________________________________
Name:________________________________
__________________________________ Title:_______________________________
Name:_____________________________
LENDER
EXHIBIT A
Xxx 0, 0, 0, 00, 00 and 15, and the East 104.41 feet of Lot 4 and the East 87.78
feet of Lot 12 of XXXX'X SUBDIVISION, according to the Plat thereof as recorded
in Plat Book 6, Page 47, of the Public Records of Seminole County, Florida (less
that part thereof in Xxxxx Xxxx 000 as described in Official Records Book 220,
Page 405, Seminole County Records)
AND
Lot 27 of FLORIDA LAND AND COLONIZATION COMPANY LIMITED X. XXXXXXXX'X MAP OF ST.
XXXXXXX according to the Plat thereof as recorded in Plat Book 1, Page 114,
Public Records of Seminole County, Florida (less that part thereof in Xxxxx Xxxx
000 as described in Official Records Book 220, Page 405, Seminole County
Records).
AND
All that part of XXXX ROAD, as shown on XXXX'X SUBDIVISION, according to the
plat thereof as recorded in Plat Book 6, Page 47, of the Public Records of
Seminole County, Florida, lying East of the Southerly extension of the West Line
of the East 87.78 feet of Lot 12, said XXXX'X SUBDIVISION, and lying West of the
West Right-of-Way Line of State Road No. 400 (Interstate Highway No. 4)
