Exhibit 10.9
CONSTRUCTION/PERMANENT LOAN AGREEMENT
THIS LOAN AGREEMENT
is made as of the __17__ day of December 1999, by and among CUL
(SINT MAARTEN) N.V., a Netherlands Antilles limited liability
company, whose mailing address is 12410 SE 32 nd Street,
Bellevue, Washington 98005 (the “Borrower”),
COST-U-LESS, INC., a Washington corporation whose mailing address
is 12410 SE 32 Street, Bellevue, Washington 98005 Street, Bellevue,
Washington 98005 (“CULUSVP”, and, together with
Cost-U-Less, the “Guarantors”), and BAN Street,
Bellevue, Washington 98005 (“CULUSVP”, and, together
with Cost-U-Less, the “Guarantors”), and BANCO POPULAR
DE PUERTO RICO, a commercial banking institution whose mailing
address is P.O. Box 8580, St. Thomas, U.S. Virgin Islands 00801
(the “Bank”).
WHEREAS, the Bank
has agreed to make, the Borrower has accepted and the Guarantors
have agreed to guarantee, a loan upon the terms and conditions
hereinafter described (the “Loan”), to be used by the
Borrower for the construction of a retail building and related
facilities (the "Project") on the real property herein described
and in accordance with plans and specifications submitted to and
approved by the Bank (the “Plans and
Specifications”);
NOW, THEREFORE, in
consideration of the premises and the mutual agreements contained
herein, the parties hereto agree as follows:
1.
REPRESENTATIONS . The Borrower and the Guarantors.
respectively, represent, covenant and warrant that:
1.1
Corporate / Company Existence and Power . The Borrower is a
limited liability company, duly organized, validly existing and in
good standing under the laws of St. Maarten, Netherlands Antilles,
and has the power to make this Agreement and to borrow hereunder.
Each of the Guarantors is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Washington and the U.S. Virgin Islands, respectively, and has the
corporate power to make this Agreement and to guarantee the
Loan.
1.2
Corporate Authority . The making and performance by the
Borrower and Guarantors of this Agreement has been duly authorized
by all necessary corporate action and will not violate any
provision of law or of their Articles of Incorporation, Bylaws or
other organizational documents or result in the breach of, or
constitute a default under, or, except as hereinafter provided,
result in the creation of any lien, charge or encumbrance upon any
property or assets of the Borrower or
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Guarantors pursuant
to any indenture or bank loan or credit agreement, or other
agreement or instrument to which any of the Borrower or Guarantors
is a party or by which any of the Borrower, Guarantors or the
property or any of them may be bound or affected.
1.3
Financial Condition . The most recent financial statements
of the Borrower and Guarantors, and other related information,
heretofore furnished to the Bank, are complete and correct and
fairly present the financial condition of the Borrower and
Guarantors and the results of operations for the period(s)
specified therein. To the best of the Borrower’s and each
Guarantor’s knowledge and belief, neither the Borrower nor
any Guarantor has contingent obligations, liabilities for taxes, or
unusual forward or long term commitments, except as herein
specifically mentioned, not disclosed by, or reserved against, in
said financial statements, and, at the present time, there are no
material unrealized or anticipated losses from any unfavorable
commitments of the Borrower or Guarantors. Said financial
statements have been prepared in accordance with generally accepted
accounting principles and practices consistently maintained by the
Borrower and Guarantors throughout the period involved. Since the
dates of such financial statements, and since the date of the other
financial information provided to the Bank, there have been no
material adverse changes in the financial condition of the
Borrowers or Guarantors from that set forth in said financial
statements or in said other financial information as of the date
thereof.
1.4
Litigation . Except as the Bank has been advised in writing,
there are no suits or proceedings pending, or, to the knowledge of
the Borrower or Guarantors, threatened, against or affecting the
Borrower or Guarantors which, if adversely determined, would have a
material adverse effect on the financial condition or business of
the Borrower or Guarantors. There are no proceedings by or before
any governmental commission, bureau or other administrative agency
pending, or to the knowledge of the Borrower or Guarantors
threatened, against any of the Borrower or Guarantors.
1.5
Titles; Liens . The Borrower and Guarantors have exclusive
good and marketable title to each of the fixed properties and
assets reflected in their financial statements free and clear of
all mortgages, liens and encumbrances, except (a) liens, if any,
for current taxes, assessments and governmental charges not
delinquent or whose validity is being contested at the time in good
faith
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and by appropriate
proceedings, and covenants, restrictions, rights, easements, liens,
encumbrances and minor irregularities in title which, in their
opinion, do not and will not interfere with the occupation, use and
enjoyment of such properties and assets in the normal course of
business as presently conducted or planned or materially impair the
value of such properties and assets for the purpose of such
business, (b) mortgages, liens and encumbrances disclosed in the
financial statements provided in Subsection 1.3 above, and
(c) mortgages, liens and encumbrances in favor of the
Bank.
1.6
Environmental Compliance . To the best of the
Borrower’s knowledge and belief the Borrower has duly
complied with, and the Property (as hereinafter defined) and
Borrower’s business operations, assets, equipment, property,
leaseholds or other facilities are in compliance with the
provisions of all Netherlands Antilles environmental, health, and
safety laws, codes and ordinances, and all rules and regulations
promulgated thereunder and the Borrower has been issued and will
maintain all required Netherlands Antilles permits, licenses,
certificates, and approvals relating to (1) air emissions, (2)
discharges to surface water or groundwater, (3) noise emissions,
(4) solid or liquid waste disposal, (5) the use, generation,
storage, transportation or disposal of toxic or hazardous
substances or wastes (intended hereby and hereafter to include any
and all such materials listed in any federal or territorial law,
code or ordinance, and all rules and regulations promulgated
thereunder, as hazardous or potentially hazardous), or (6) other
environmental, health, or safety matters, and the Borrower has
received no notice of, and neither knows of nor suspects, facts
which might constitute any violations of any Netherlands Antilles
environmental, health, or safety laws, codes or ordinances, and any
rules or regulations promulgated thereunder with respect to the
Property or Borrower’s business, operations, assets,
equipment, property, leaseholds, or other facilities and except in
accordance with a valid governmental permit, license, certificate
or approval, there has been no emission, spill, release, or
discharge into or upon (1) the air, (2) soils or any improvements
located thereon, (3) surface water or groundwater, or (4) the
sewer, septic system or waste treatment, storage or disposal system
servicing the Property, of any toxic or hazardous substances or
wastes at or from the Property; and accordingly, except for
inventory of raw materials, supplies, work in progress and
finished, that are to be used or sold in the ordinary course of
business,
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the Property is
free of all such toxic or hazardous substances or wastes and there
has been no complaint, order, directive, claim, citation, or notice
by any governmental authority or any person or entity with respect
to (1) air emissions, (2) spills, releases, or discharges to soils
or improvements located thereon, surface water, groundwater or the
sewer, septic system or waste treatment, storage or disposal
systems servicing the Property, (3) noise emissions, (4) solid or
liquid waste disposal, (5) the use, generation, storage,
transportation, or disposal of toxic or hazardous substances or
waste, or (6) other environmental, health, or safety matters
affecting the Borrower, the Property or Borrower’s business,
operations, assets, equipment, property, leaseholds, or other
facilities. The Borrower has received no notice of indebtedness,
obligation or liability, absolute or contingent, matured or not
matured, with respect to the storage, treatment, cleanup, or
disposal of any solid wastes, hazardous wastes, or other toxic or
hazardous substances (including without limitation any such
indebtedness, obligation or liability with respect to any current
regulation, law or statute regarding such storage, treatment,
cleanup, or disposal) which has not been previously disclosed to
the Bank in writing.
1.7
Contract Obligations . The Borrower is not a party to any
contractor agreement which materially and adversely affects
Borrower’s business, properties, or assets, or
Borrower’s condition, financial or otherwise, except as
hereinafter identified; and neither the execution and delivery of
this Agreement, the consummation of the transactions contemplated
herein, nor compliance with the terms, conditions and provisions of
this Agreement, the Security Instruments referred to herein and the
Note issued hereunder will conflict with or result in a breach of
the terms, conditions, or provisions of any indenture or other
agreement or instrument to which the Borrower is a party or by
which the Borrower is bound or will result in the creation or
imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Borrower,
except as permitted by the provisions hereof. To the best of
Borrower’s knowledge and belief, the Borrower has no
contingent obligations except those arising in the ordinary course
of the Borrower’s business.
1.8
The Property . The Borrower has a leasehold interest in the
Property (hereinafter defined) and there are no encumbrances,
restrictions or covenants of record which would prevent or
otherwise affect the development of the Project or which would
prevent the Bank from obtaining or
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maintaining a first
priority interest pursuant to the Assignment (as defined below),
except as has been disclosed to and approved by the Bank in
writing.
1.9
Business Licenses and Governmental Permits . The Borrower
possesses or will obtain all licenses, franchises, and permits
necessary for the conduct of Borrower’s business as now, or
proposed to be, conducted, and for the development and construction
of the Project without substantial known conflict with the rights
of others.
1.10
Use
of Loan Proceeds . The proceeds of the Loan shall be solely for
the purposes herein stated in connection with the Project in
accordance with the provisions hereof.
1.11
Enforceability . This Agreement, the Note (as defined in
Subsection 2.4 ), the Security Instruments (as defined in
Section 3 ) and other documents to be delivered and executed
simultaneously herewith (collectively, the “Loan
Documents”) are the legal, valid and binding obligations of
the Borrower and Guarantors, enforceable against the Borrower and
Guarantors in accordance with their respective terms.
2.
THE AGREEMENT TO LEND
2.1
Type . The Loan shall be in the form of a fifteen year
installment loan in the maximum principal amount of TWO MILLION AND
00/100 UNITED STATES DOLLARS (U.S. $2,000,000.00) payable in one
hundred eighty (180) consecutive monthly installments of principal
and interest after an initial period of interest only payments as
set forth below.
2.2
Principal and Interest Payments . The Borrower shall repay
the principal amount of the Loan to the Bank in one hundred eighty
(180) consecutive monthly installments of principal as follows: (a)
one hundred seventy nine (179) consecutive monthly installments
consisting of principal in the amount of ELEVEN THOUSAND ONE
HUNDRED ELEVEN, AND 00/100 DOLLARS (U.S. $11,111.00) each,
commencing on the first day of the seventh full month from the date
hereof and continuing on the first day of each consecutive month,
and (b) a one hundred eightieth (180th), final installment of
principal then outstanding, together with all accrued and unpaid
interest. Interest accrued on the principal sum from time to time
outstanding at the rate set forth in Subsection 2.3 below
shall be due and payable monthly together with each monthly payment
of principal as set forth above, provided however, that interest
accrued from the date hereof until the
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date that monthly
payments of principal commence as provided above shall be due and
payable on the first day of each month commencing on the first day
of the first month following the date hereof and continuing on the
first day of each subsequent month. The Loan may be prepaid at any
time, and from time to time, in whole or in part, without any
premium or penalty therefor. All payments and prepayments shall be
applied first to late charges (including any interest charged at
the Default Rate, as defined below), if any, second to other
accrued interest and the remainder to the outstanding principal
balance.
2.3
Interest . The Loan shall bear interest on the principal sum
advanced and outstanding at a per annum rate equal to one percent
(1%) above the prime rate as it varies (any change in interest
resulting from the change in the prime rate to be effective at the
beginning of the day on which such change in the prime rate is
announced). The term “prime rate” as used herein means
that rate of interest from time to time announced by The Chase
Manhattan Bank (“Chase”) at its principal offices in
New York, New York as its floating prime rate, which is not
necessarily the lowest rate charged by Chase or the Bank. Interest
shall be calculated daily on a three hundred sixty (360) day basis
at the rate hereinabove set forth and shall be due and payable
monthly commencing on the first day of the first full month
following the date hereof as set forth in Subsection 2.2
above.
Notwithstanding the
foregoing, at any time that an Event of Default, as defined in
Section 10 hereof, shall have occurred and be continuing,
the Loan shall bear interest at a rate per annum equal to two
percent (2.0%) above the prime rate as it varies (the
“Default Rate”) (any change in interest resulting from
the change in the prime rate to be effective at the beginning of
the day on which such change in the prime rate is announced).
Interest at the Default Rate shall be calculated daily on a three
hundred sixty (360) day basis and shall be due and payable monthly
on the first day of each month as provided in the preceding
paragraphs.
2.4
The Note . The Loan shall be evidenced by a promissory note
of the Borrower (the “Note”), in the amount of the
Loan, dated the date hereof, due and payable to the order of the
Bank as hereinabove and therein set forth.
3.
SECURITY . The Loan shall be secured by this Agreement and
the following agreements, pledges, and assignments of the Borrower
(collectively, the “Security Instruments”):
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3.1 Assignment
of Lease . An Assignment of Lease Rights (the
“Assignment”) from the Borrower to the Bank, which
shall create a first priority lien over the Borrower’s
leasehold interest in the real property described below pursuant to
a lease agreement dated February 19, 1999 and amended November
_____, 1999 (the “Lease”), between Caribe Lumber &
Trading N.V. (St.Maarten), as landlord (the
“Landlord”), and Borrower, as lessee, pursuant to which
the Borrower possesses the real property and improvements located
or to be constructed thereon as follows:
the property
located at The Bush Raod, Cul-de-Sac, St. Maarten, N.A.,
consisting of 6,295M2 of the land described in Meetbrief
#13/1966, 532M2 of the land described in Meetbrief
#67/1967, 17M2 of the road described in Meetbrief
#100/1974, and 5,956M2 of the land described in Meetbrief
#78/1967, all as shown on the drawings and descriptions
attached hereto and made a part hereof as EXHIBIT A, and consisting
in the aggregate of 12,800M2.
(collectively, the
“Property”).
3.2 Fiduciary
Transfer of Ownership and Deed of Assignment . A Fiduciary
Transfer of Ownership in favor of the Bank (the “Security
Agreement”), granting to the Bank a first priority security
interest in the following assets of the Borrower: all inventory,
whether on the Property, as stored, or in transit, accounts
receivable, machinery, apparatus, equipment, fittings, fixtures,
and all other articles of personal property used or procured for
use in connection with the construction, maintenance or operation
of the Property. The lien of said Security Agreement shall be
evidenced and perfected by the filing of the executed originals of
the Security Agreement and such other documentation as may be
required in St. Maarten, Netherlands Antilles, with such
governmental offices as shall be necessary to perfect such
lien.
3.3 Assignment
of Plans and Specifications . An Assignment of Plans and
Specifications, assigning to the Bank the Borrower’s interest
in the Plans and Specifications, together with the consent of the
Architect to such assignment.
3.4 Assignment
of Construction Contract . An Assignment of Construction
Contract assigning to the Bank the Borrower’s interest in the
contract(s) with the general contractor and/or construction manager
for the Project (collectively, the “Construction
Contract”), together with the consent of the general
contractor to such assignment.
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3.5
Unlimited
Guaranty . The unlimited and unconditional guaranty (the
“Guaranty”) of the Guarantors, jointly and severally
guaranteeing repayment of the Loan, and the Borrower’s
obligations under this Agreement and the Security Instruments
securing the Note.
4.
CONDITIONS TO CLOSING . The Bank shall close the Loan (but
shall not be obligated to make any advance for construction costs
unless and until the Borrower and Guarantors have complied with all
other provisions of this Agreement), subject to the fulfillment to
the satisfaction of the Bank of the following conditions and all
other applicable terms of this Agreement and the Loan
Documents:
4.1
Title
. The Bank shall have received such evidence as may be required by
the Bank or its counsel showing that (a) the leasehold title to the
Property is vested in the Borrower, and (b) the interest of the
Bank under the Assignment will be a first priority lien over the
Borrower’s leasehold interest in the Property with no
exceptions other than (i) liens for real estate taxes not yet due
and payable, and (ii) such other exceptions acceptable to the Bank
and its counsel.
4.2
Survey .
The Bank shall have received two (2) copies of a survey and legal
description (including a metes and bounds description) of the
Property together with such certification(s) and related documents
as may be necessary or advisable under Netherlands Antilles law or
pursuant to general real estate practices in Netherlands Antilles,
satisfactory in substance and form to the Bank and its counsel,
showing all easements, encroachments, rights-of-way, roads,
alleyways, paths, and set-backs and such other matters as revealed
by inspection and survey of the Property, and shall clearly
indicate all monuments and other controls relied upon by the
surveyor (the “Survey”).
4.3
Plans and
Specifications . The Bank shall have received the Plans and
Specifications together with any and all changes made to the date
of the advance, together with such evidence as the Bank may require
showing that such Plans and Specifications have been approved by
all governmental authorities having or claiming jurisdiction
thereover, which Plans and Specifications shall be satisfactory and
have the written approval of the Borrower and the Bank. No material
modification of said Plans and Specifications shall be effective
unless the Bank shall consent in writing thereto.
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4.4
Supervisory Inspector’s Review and Report . The
Supervisory Inspector appointed by the Bank as provided in
Section 12 hereof shall review all Plans and Specifications,
and any other relevant material related to the Project, prior to
the making of the first advance. The Bank shall have received the
written opinion of the Supervisory Inspector satisfactory to the
Bank with regard to: (i) general completeness of the Plans and
Specifications, (ii) sufficiency of the design criteria, (iii)
compliance with all applicable building and zoning laws and
regulations and other laws requiring governmental permits for the
development or construction of the Project, (iv) adequacy of the
structural, electrical and mechanical systems for the Project, (v)
adequacy of the construction schedule, the Construction Contract,
major subcontracts and any agreements with the architect(s) and
engineer(s) of record for the Project, (vi) adequacy of the final
construction hard costs budget and proposed trade payments schedule
for the Project submitted by or on behalf of the Borrower, (vii)
adequacy of the survey, plot plan, and soil report provided by or
on behalf of Borrower along with the Plans and Specifications and
(viii) the Supervisory Inspector’s satisfaction that the
projected construction costs are in line with market
conditions.
4.5
Security Instruments . The Bank shall have received the
fully executed Security Instruments described in Section 3
hereof.
4.6
Proof of Corporate and Company Action and Organization . The
Bank shall have received for the Borrower and each of the
Guarantors certified copies of all corporate and company action
taken to authorize the execution and delivery of this Agreement and
the borrowing and guaranties hereunder, current Certificates of
Good Standing, certified Articles of Organization, Articles of
Incorporation. Bylaws, and other organizational documents,
Certificates of Incumbency, Certificates of Corporate Ownership,
current business licenses and such other papers and documents as
the Bank shall reasonably request.
4.7
Subordination
of Shareholders’ Loans . All shareholders for Borrower
shall have executed and delivered to the Bank a subordination
agreement, satisfactory in form and substance to the Bank and its
counsel, subordinating its shareholder loans, if any, to the
Loan.
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4.8
Insurance . The Bank shall have received from the Borrower
the following policies of insurance procured through agencies
licensed to do business in the Netherlands Antilles, from insurance
companies which shall be financially sound, reputable and
satisfactory to the Bank:
(a)
Until
Completion of the Project (as defined in Section 7 hereof),
insurance coverage providing for payment to the Bank as
mortgagee/loss payee against the risk of fire, flood, windstorm,
earthquake with extended coverage endorsements in Builder’s
Risk Completed Value Non-reporting form (or the equivalent thereto
under Netherlands Antilles law and practice) with limits of not
less than the full insurable value of the improvements being built
on the Property.
(b)
Upon Completion of
the Project (as defined in Section 7 hereof), insurance
coverage with respect to the improvements comprising the Property
and the other assets of Borrower pledged to the Bank as security
for the Loan providing for payment to the Bank as mortgagee/loss
payee against loss or damage by fire, flood, earthquake, windstorm
and other risks now embraced by the so-called broad form extended
coverage endorsement (or the equivalent thereto under Netherlands
Antilles law and practice), in amounts not less than the full
insurable value of the improvements and such assets.
(c)
Comprehensive
General and Excess Liability Insurance coverage, including
employer’s liability “stop-gap”, personal injury,
hired and no-owned automobiles, products/completed operations,
independent contractors (if any), blanket liability broad form,
property damage and personal injury (or the equivalent thereto
under Netherlands Antilles law and practice), in form, amount and
coverage satisfactory to the Bank and its counsel.
(d)
Appropriate
workers’ compensation insurance in respect of any work on or
about the Property in accordance with Netherlands Antilles
law.
(e)
Such
other insurance with respect to the Property and the
Borrowers’ other assets pledged to the Bank as security for
the Loan in such amounts and against such insurable hazards as the
Bank from time to time may reasonably require.
(f)
The
foregoing insurance policies shall provide that they may not be
canceled, or the amount(s) of coverage provided reduced, for any
reason until not less than thirty (30) days written notice shall
have been given to the Bank of the insurance company’s
intention to cancel or
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reduce the
amount(s) of coverage provided under such policy or policies during
which time the Borrower shall replace said policy or policies with
new, substitute or successor policies to comply with the
requirements of this Subsection 4.8 .
4.9
Loan Fees . The Bank shall have received from the Borrower
the Commitment Fee in the amount of TWENTY THOUSAND UNITED STATES
DOLLARS (U.S. $20,000.00) and the Application Fee in the amount of
ONE HUNDRED FIFTY UNITED STATES DOLLARS (U.S. $150.00).
4.10
Taxes and
Permits . The Bank shall have received copies of all site
development, construction and similar permits required in
connection with the current stage of construction of the Project
together with evidence that all fees for such permits have been
paid. The Bank shall have received such written evidence as it or
its counsel may require that all applicable property taxes, due or
past due have been paid.
4.11
Cost Breakdown
— Construction Schedule . The Bank shall have received
from Borrower a projected development and construction cost
breakdown, satisfactory to the Bank in form and substance,
specifying in reasonable detail projected amounts to be payable for
each category of work to be performed and materials to be supplied
in connection with the development and construction of the Project,
along with a projected schedule for the progress of such
construction (the Construction Cost Breakdown and
Schedule").
4.12
Draw
Schedule . The Bank shall have received from Borrower a draw
schedule satisfactory to the Bank.
4.13
List of
Contractors and Materialsmen . The Bank shall have received
from Borrower a list of contractors and materialsmen intended by
the Borrower to perform work or supply materials in connection with
the development and construction of the Project, together with
conformed copies of the fully executed Construction Contract and
subcontracts for such work and materials in form and substance
satisfactory to the Bank.
4.14
Landlord’s Consent and Estoppel Certificate . The Bank
shall have received a validly executed Consent and Estoppel
Certificate from the Landlord, satisfactory in form and substance
to the Bank and its counsel, consenting to the Borrower’s
execution and the recording of the
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Assignment, stating
that the Borrower is not in default under the terms of the Lease
and establishing certain rights and obligations of the Landlord,
the Borrower and the Bank, and/or such other documents executed by
the Landlord or any other party having an interest in the Property
as may be necessary or desirable under the Lease or under
Netherlands Antilles law to create, perfect or enforce the
Bank’s lien, rights and remedies under the
Assignment.
4.15
Lease Memorandum or
Other Evidence of Leasehold Interest . If and to the extent
necessary for the creation, perfection or enforcement of the
Bank’s interest and rights under the Assignment, the Bank
shall have been provided with a lease memorandum or other evidence
of the Borrower’s leasehold interest in the Property, in such
form as may be necessary under Netherland Antilles law, describing
the provisions of the Lease.
4.16
Approval of Bank
Counsel . All legal matters incident to the transactions hereby
contemplated shall be satisfactory to counsel for the Bank,
including both U.S. Virgin Islands and St. Maarten, Netherlands
Antilles counsel.
4.17
Opinion of Counsel for
Borrower and Guarantors . The Bank shall have received from
counsel for the Borrower and Guarantors favorable opinions dated
the date hereof addressed to the Bank and satisfactory in scope,
form and substance to the Bank and its counsel, covering the
following matters:
(a)
Borrower . The Borrower is a limited liability company, duly
organized, validly existing and in good standing under the laws of
St. Maarten, Netherlands Antilles, and has the legal capacity and
authority to borrow the Loan, pledge the collateral under the
Security Instruments, lease the Property, complete the Project
thereon and to own and otherwise possess other property to the
extent required to properly and adequately conduct its business and
that no part of this transaction violates any restriction, term,
condition or provision of the Borrower’s Articles of
Incorporation, Bylaws or other organizational documents.
(b)
Cost-U-Less . Cost-U-Less is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Washington and has the legal capacity and authority required to
properly and adequately conduct its business, to provide its
Guaranty under the terms of
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this Agreement and
that no part of this transaction violates any restriction, term,
condition or provision of its Articles of Incorporation or
Bylaws.
(c)
CULUSVI . CULUSVI is a corporation duly organized, validly
existing and in good standing under the laws of the U.S. Virgin
Islands and has the legal capacity and authority required to
properly and adequately conduct its business, to provide its
Guaranty under the terms of this Agreement and that no part of this
transaction violates any restriction, term, condition or provision
of its Articles of Incorporation or Bylaws.
(d)
Loan Agreement . This Agreement has been duly executed and
delivered by the Borrower and Guarantors and constitutes a legal,
valid and binding instrument except as may be limited by
bankruptcy, insolvency, moratorium, reorganization and similar laws
generally affecting the rights of creditors.
(e)
Note . The Note has been duly executed and delivered by the
Borrower and constitutes a legal, valid and binding instrument,
enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency, moratorium, reorganization and other
laws generally affecting the rights of creditors.
(f)
Security Instruments . The Security Instruments have been
duly executed and delivered by the Borrower and Guarantors and
constitute legal, valid and binding instruments, enforceable in
accordance with their terms, except as may be limited by
bankruptcy, insolvency, morat
