EXHIBIT 10-1
LOAN AGREEMENT FOR CONSTRUCTION AND OTHER
MATTERS
THIS LOAN AGREEMENT (herein “ Agreement
”) is entered into this November 18, 2005 by and between
PINEAPPLE HOUSE OF BREVARD, INC., a Florida corporation, whose
mailing address is 1684 W. Hibiscus Blvd., Melbourne, Florida 32901
(herein referred to as “ Borrower ”), and BRANCH
BANKING AND TRUST COMPANY, whose mailing address is 255 South
Orange Avenue, Suite 112, Orlando, Florida 32801 (herein referred
to as “ Lender ”).
R E C I T A L S :
A. Borrower
has negotiated with Lender for a loan in the principal amount of
FOURTEEN MILLION AND NO/100 DOLLARS ($14,000,000.00) to be used by
Borrower for funding a portion of the monies for the construction
of improvements (the “ Improvements ”)
consisting of 33 residential condominium units and parking in an
8-story structure in Phase I and construction of 22 residential
condominium units each in Phases II and III, on a parcel of real
estate in Brevard County, Florida, described on attached Exhibit
“A” (herein referred to as
“Land” ). (The Improvements and the Land are
hereinafter collectively referred to as the “ Premises
”).
B. Borrower
and Lender wish to enter into this Agreement in order to set forth
(among other things) the terms and conditions of the disbursement
of said construction loan:
NOW,
THEREFORE , in
consideration of the premises and the sum of Ten and No/100 Dollars
($10.00) each to the other in hand paid the receipt and sufficiency
of which is hereby acknowledged, Borrower and Lender agree as
follows:
ARTICLE I
LOAN DOCUMENTS
Prior
to any disbursements, Borrower shall execute and deliver, or cause
to be executed and delivered, to Lender the following documents
(hereinafter collectively and together with this Agreement referred
to as “ Loan Documents ”), all in a form
satisfactory to Lender:
1.
Note . A promissory note of even date herewith
executed by Borrower and payable to the order of Lender in the
principal amount of $14,000,000.00.
2.
Real Estate Mortgage and Security Agreement . A
mortgage and security agreement (the “ Mortgage
”) encumbering (among other things) the Land which upon
recordation shall constitute a first lien on said property, and
which mortgage shall be in a form satisfactory to Lender and shall
be subject only to those exceptions and matters satisfactory to
Lender. The Mortgage shall contain a future advance clause
allowing Lender, but not obligating Lender, to make future
advances; provided, however, that the maximum principal amount to
be secured by the Mortgage at any time or times shall be that
amount set forth in the Mortgage.
3.
UCC 1 Financing Statements . UCC-1 Financing
Statements (state and local) covering all personal property,
fixtures, and equipment placed or to be placed on or under said
Premises, and such other documents as will insure Lender a first
perfected security interest in and to said personal property,
fixtures, and equipment, including all licenses, permits, plans and
specifications relating to the development of the Land.
4.
Assignment of Leases and Rents . A general collateral
assignment of all contracts, leases, income, rents and profits from
or concerning the Premises.
5.
Mortgagee Title Insurance Binder and Policy . A
mortgagee title insurance binder and policy in the face amount of
$14,000,000.00, insuring the Mortgage as a valid first lien on the
Land subject only to exceptions as shall be approved in writing by
Lender issued by a title insurance company satisfactory to Lender,
containing such endorsements, and in a form satisfactory to and
approved by Lender, including such reinsurance agreements, if any,
as shall be approved by Lender. All standard title exceptions
for Construction liens, survey matters, and rights of parties in
possession shall be eliminated from and not included in the
mortgagee title insurance policy.
6.
Unconditional Guaranty of Payment and Performance .
Borrower’s obligations of payment and performance under this
Agreement and under the documents evidencing, securing, or in any
way related to the loan by Lender to Borrower shall be
unconditionally jointly and severally guaranteed by THE GOLDFIELD
CORPORATION, a Delaware corporation (herein
“Goldfield” ), SOUTHEAST POWER CORPORATION, a
Florida corporation (herein “Southeast Power” ),
BAYSWATER DEVELOPMENT CORPORATION, a Florida corporation (herein
“Bayswater” ), and OAK PARK OF BREVARD, INC., a
Florida corporation (herein “Oak Park” ) (herein
collectively referred to as “ Guarantor ”) in a
form satisfactory to Lender.
7.
Survey . A survey, certified to Lender and the title
insurance company, satisfactory to Lender, of all properties
covered by the Mortgage showing public access to the Premises and
all improvements and no encroachments or easements on the property
lines. Foundation perimeters are to be added to the survey by
the surveyor as soon as they are in place for all buildings.
The survey shall be updated from time to time as required by
Lender. A final survey shall be furnished after all
improvements are completed on the Premises. The Survey shall
additionally certify to Lender whether the Land is or is not
located within an area identified pursuant to the Flood Disaster
Act of 1973 as having flood hazards.
8.
Environmental Certification and Indemnity Agreement .
An agreement by the Borrower and Guarantors in favor of Lender
whereby they jointly and severally warrant that, to the best of
their knowledge, the Premises do not and shall not contain at any
time any hazardous pollutants or toxic materials and whereby they
jointly and severally indemnify Lender against any of same and
agree to certain other terms and conditions concerning such
substances.
9.
Agreement to Comply With The Americans With Disabilities Act of
1990 and Florida Americans With Disabilities Accessibility
Implementation Act . An Agreement by the Borrower in
favor of Lender whereby Borrower agrees to comply with the
Americans With Disabilities Act of 1990 and Florida Americans With
Disabilities Accessibility Implementation Act.
10.
Agreement Regarding Closing of Loan . An Agreement between
the parties regarding the closing of the Loan.
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11.
Collateral Assignment of Contract Rights. A
collateral assignment by the Borrower in favor of the Lender of all
contract rights of the Borrower in and to any contracts or
documents concerning the improvement or use of the Land.
12.
Opinion of Counsel . An opinion of counsel licensed in
the State of Florida and satisfactory to Lender shall be furnished
to Lender prior to Closing to the effect that (a) all of the Loan
Documents are valid and enforceable and legally convey to Lender
all of the rights therein stated and purported to be conveyed; (b)
Borrower and Guarantors have the full right and legal authority to
carry out the terms of this agreement and any documentation to be
executed pursuant to this agreement; (c) the zoning of the property
permits the construction of the proposed Improvements; (d) the Loan
does not violate in any manner the usury laws of the State of
Florida and that the manner and payment of interest under the Loan
and all charges required to be paid under the Loan (including any
prepaid interest, service charges, participation payments,
additional interest, commitment fees, brokers’ fees, interest
reserve, loan management fees and all other charges contemplated
hereunder, if any) are neither illegal nor usurious in any manner
under the laws of the State of Florida; and (e) there is no
threatened or pending litigation or administrative or governmental
action of any nature which (i) would prohibit Borrower from
entering into the Loan and executing all documents required in
connection therewith, (ii) would affect the validity or
enforceability of this Agreement, the Notes or other Loan
Documents, or (iii) would adversely effect Lender’s rights or
remedies.
13.
Appraisal . A current appraisal performed by a
qualified, independent fee appraiser selected by the Lender which
shall be in accordance with the Lender’s current guidelines
(except as may be waived by the Lender in Lender’s sole
discretion. Lender may at any time while the Loan remains
outstanding, have the Project reappraised at Borrower’s
expense. Such appraisal must be acceptable in all respects to
Lender. Under no instances will the aggregate amount advanced
under the loan exceed 80% of the appraised discounted value of the
collateral.
ARTICLE II
WARRANTIES OF BORROWER
Borrower
hereby warrants to Lender as follows:
1.
Validity of Loan Documents . That the Loan Documents
are in all respects legal, valid, and binding according to their
terms and grant to Lender a direct, valid, and enforceable first
lien security interest in the Premises and the personalty located
thereon.
2.
Corporate Existence of Borrower; Compliance with Law .
That Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation. That Borrower has the corporate power to own its
properties and to carry on its business as now being conducted, and
Borrower is in compliance with all other requirements of law
applicable to it and to its business.
3.
Priority of Lien on Personalty . That no bill of sale,
security agreement, financing statement, or other title retention
agreement (except those executed in favor of Lender) has been or
will be executed with respect to any personal property, equipment,
or fixtures used in conjunction with the construction, operation,
or maintenance of the Improvements.
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4.
Conflicting Transactions of Borrower . That the
consummation of the transactions hereby contemplated and the
performance of the obligations of Borrower under and by virtue of
the Loan Documents will not result in any breach of, or constitute
a default under, any mortgage, security deed, deed of trust, lease,
bank loan or credit agreement, corporate charter or bylaws, or
other instrument to which Borrower is a party or by which it may be
bound or affected.
5.
Other Loans . That the Borrower has not procured
subordinate financing in connection with the purchase of the Land
nor has the Borrower procured a loan or loans from other sources
other than Lender for the work contemplated by this Loan Agreement
and will not procure such loans, unless approved by Lender in
writing.
6.
Pending Litigation . That there are no actions, suits,
or proceedings pending, or to the knowledge of Borrower threatened
against or affecting it or the Premises, or involving the validity
or enforceability of any of the Loan Documents or the priority of
the lien thereof, at law or in equity, or before or by any
governmental authority, except actions, suits and proceedings which
are fully covered by insurance and which, if adversely determined,
would not substantially impair the ability of Borrower to perform
each and every one of its obligations under and by virtue of the
Loan Documents; and to the Borrower’s knowledge it is not in
default with respect to any order, writ, injunction, decree, or
demand of any court or any governmental authority.
7.
Violations of Governmental Law, Ordinances or Regulations
. That Borrower has no knowledge of any violations or notices
of violations of any federal or state law or municipal ordinance or
order or requirement of the county or city in which the Premises
are located or any municipal department or other governmental
authority having jurisdiction affecting the Premises, which
violations in any way relate to or affect the Premises.
8.
Compliance with Zoning Ordinances and Similar Laws . That
the Plans and Specifications and construction pursuant thereto and
the use of the premises contemplated thereby comply and will comply
with all governmental laws and regulations, and requirements,
standards, and regulations of appropriate supervising boards of
fire underwriters and similar agencies.
9.
Compliance with Division of Florida Land Sales and
Condominiums . That all approvals and permits that are
required to date from the Division of Florida Land Sales and
Condominiums have been obtained and that copies of all condominium
documents relating to subsequent stages of the development,
approvals and permits (when received) shall be immediately
delivered to Lender.
10.
Availability of Utilities . That all utility services
necessary for the construction of the Improvements and the
operation thereof for their intended purpose are available on or at
the boundaries of the Land, including water supply, storm and
sanitary sewer facilities, electric and telephone
facilities.
11.
Building Permits . That all building permits and other
approvals of governmental authorities or quasi-governmental
authorities or agencies required for the construction of the
Improvements, have been obtained or shall be obtained prior to
institution of construction and copies of same shall be or have
been delivered to Lender. That Borrower will deliver to
Lender copies of all building permits relating to subsequent phases
of the development within five (5) days after issuance.
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12.
Condition of Premises . That the Premises are not now
damaged or injured as a result of any fire, explosion, accident,
flood, or other casualty.
13.
Brokerage Commissions . That any brokerage commissions
due in connection with the transaction contemplated hereby have
been paid in full and that any such commissions coming due in the
future will be promptly paid by Borrower. Borrower agrees to
and shall indemnify Lender from any liability, claims, or losses
arising by reason of any such brokerage commissions. This
provision shall survive the repayment of the loan made in
connection herewith and shall continue in full force and effect so
long as the possibility of such liability, claims or losses
exists.
14.
Non-Commencement of Construction . That Borrower has
not caused or permitted any labor to be furnished in connection
with construction of the Improvements or caused or permitted any
materials to be delivered to the Premises that has not been paid
for in full; and that neither the contractor nor any supplier or
subcontractor shall be permitted to deliver any materials to the
Premises or excavate for footings, or otherwise perform any work on
the Premises until the Mortgage shall be recorded and that
subsequent to the recordation of the Mortgage, Borrower shall
record and post a Notice of Commencement (but only as to that
portion of the Land upon which Improvements have been approved by
Lender to be constructed) and shall fully comply with the
requirements of Florida’s Construction Lien law.
15.
Equity . That the Use of Proceeds Schedule (herein the
“ Use of Proceeds Schedule ”) form attached
hereto as Exhibit “B” relates the understanding
of all parties as to the distribution of loan funds and that
Borrower will document in a form satisfactory to Lender all funds
shown in the “ Borrowers Equity ” column.
Although the Use of Proceeds Schedule sets forth the proposed
distribution of loan proceeds, Lender in its sole and absolute
discretion may reallocate the funds of the Loan and disburse same
other than in accordance with the Use of Proceeds Schedule as
Lender shall determine.
16.
Equity Funds : Borrower shall pay and deliver to
Lender satisfactory evidence of payment of that portion of the
total project cost shown on the Use of Proceeds as “
Borrower Equity ”, and shall deliver to Lender such
other and detailed information concerning the components of the
total project cost as may be required by Lender. Any portion
of the total project cost allocated to Borrower Equity and not paid
or otherwise accounted for to Lender’s satisfaction shall, at
Lender’s option, be deposited by Borrower with Lender,
together with any other funds required to be so deposited under
this Agreement (the “ Equity Funds ”), such
funds to be held and disbursed by Lender as provided in this
Agreement. In the event the total project cost increases,
Borrower Equity will increase accordingly and Borrower shall
deliver to Lender additional satisfactory evidence of
payment. There shall be at all times undisbursed funds
sufficient to complete the project, otherwise Lender has the option
to require expenditures of such additionally required funds by
Borrower prior to any subsequent disbursement by Lender.
17.
Presold Units . That as a condition precedent to the
loan closing, the Borrower shall provide evidence of a level of
presales that totals a gross sales amount of $11,700,000.00 for
commencement of construction of Phase I of the Project. For
purposes of this paragraph, a “pre-sale” is defined as
(1) a valid, binding contract for sale and purchase, and (2) a
minimum 10% non-refundable deposit, collaterally assigned to Lender
(subject to the provisions of Chapter 713, Florida Statutes) and
deposited with Lender . Presales for Phases II and III are
required to total fifty percent (50%) of the sellout of each phase
prior to funding and commencement of construction for each of those
phases of the project.
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18.
Leases . That all leases furnished to Lender shall be
subordinate to the lien of the Loan Documents and that the leases
as presented to Lender will include any and all amendments and
modifications thereto and that Borrower will neither seek nor
permit any further amendment or modifications of the leases, or any
of them, as approved by Lender, without the prior written consent
of Lender. At its option, Lender may execute a
non-disturbance agreement with any lessee. The parties to the
leases may be required to execute estoppel letters satisfactory to
Lender’s counsel. Lender shall have the right to
approve the credit worthiness of lessees, and rent and common area
maintenance charges to be paid by lessees.
19.
Growth Management Compliance . The Land, the
construction of the Improvements and its proposed/intended use are
in full compliance with all aspects of Florida Statutes Chapter 163
as amended (Growth Management Act) and the applicable local
comprehensive plan adopted pursuant thereto and that Borrower has
obtained all necessary approvals and permits and all applicable
capacities have been reserved so that full development of the Land
can be immediately undertaken without further requirements of
contribution by Borrower or its successors in interest.
20.
Recitals . The Recitals are true and correct and are
incorporated herein by reference verbatim.
ARTICLE III
COVENANTS OF BORROWER
Borrower
hereby covenants and agrees with Lender as follows:
1.
Other Loans . To procure no subordinate financing in
connection with the purchase of the Land nor to procure a loan or
loans from other sources other than Lender for the work
contemplated by this Loan Agreement, unless approved by Lender in
writing.
2.
Construction Contract . (i) To permit no default under
the terms of the Construction Contract or any contract relating to
the construction of the Improvements, (ii) to waive none of the
obligations of the Contractor or any subcontractor thereunder,
(iii) to do no act which would relieve the Contractor or a
subcontractor from its obligations to construct the Improvements
according to the Plans and Specifications, and (iv) to make no
amendments, other than change orders as may be permitted hereunder,
to the Construction Contract or a contract without the written
consent of Lender.
3.
Agreement of Architect/Engineer . To promptly furnish
Lender with an agreement acceptable to Lender by Borrower’s
Architect/Engineer that, in the event of default by Borrower under
the terms of any of the Loan Documents, Architect/Engineer will, at
the request of Lender (i) continue performance pursuant to its
agreement with Borrower until completion of construction of the
Improvements, provided Architect/Engineer is reimbursed in
accordance with said agreement for all such services rendered and
(ii) permit Lender to use the Plans and Specifications at no cost
to Lender.
4.
Agreement of Contractor . To promptly furnish Lender
with agreements acceptable to Lender that, in the event of default
by Borrower under the terms of the Loan Documents, the Contractor
or major subcontractors will, at the request of Lender, continue
performance pursuant to their agreement with Borrower, until
completion of construction of the Improvements, provided the
Contractor or subcontractors are reimbursed in accordance with its
agreement with Borrower.
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5.
Insurance . To obtain such insurance or evidence of
insurance as Lender may reasonably require, including but not
limited to the following:
(i)
Builder’s Risk Insurance . Builder’s risk
and such other hazard insurance as Lender may require with standard
non-contributing mortgagee clauses and standard subrogation
clauses, such insurance to be in such amounts and form and by such
companies as shall be approved by Lender, and the originals of such
policies (together with appropriate endorsements thereto, evidence
of payment of premiums thereon, and written agreement by the
insurer or insurers therein to give Lender thirty (30) days’
prior written notice of intention to cancel or amend) shall be
promptly delivered to Lender; said insurance coverage to be kept in
full force and effect at all times until the completion of
construction of said Improvements.
(ii)
Hazard Insurance . With respect to any buildings now
or hereafter constructed on the Lands, “special form”
coverage insurance, and such other hazard insurance (including but
not limited to business interruption insurance and rent loss
insurance) as Lender may require with standard non-contributing
mortgagee clauses and standard subrogation clauses, such insurance
to be in such amounts and form and by such companies as shall be
approved by Lender, and the originals of such policies (together
with appropriate endorsements thereto, evidence of payment of
premiums thereon, and written agreement by the insurer or insurers
therein to give Lender thirty (30) days’ prior written notice
of intention to cancel or amend) shall be promptly delivered to
Lender; such insurance to be obtained immediately upon completion
of construction of said Improvements and before issuance of the
Certificate of Occupancy and before any portion of the Premises is
occupied by Borrower or any tenant of Borrower with such insurance
to be kept in full force and effect at all times thereafter until
the payment in full of the loan evidenced by the Note.
(iii)
Comprehensive General Liability and Statutory Workers’
Comprehensive Insurance . A certificate from an insurance
company indicating that Borrower and Contractor are covered to the
satisfaction of Lender by comprehensive general liability insurance
coverage and statutory workers’ compensation
coverage.
(iv)
Flood Insurance . Flood insurance issued by an
acceptable company in the amount of the loan or the maximum
coverage available or appropriate evidence that such insurance is
not necessary.
6.
Collection of Insurance Proceeds . To cooperate with
Lender in obtaining for Lender the benefits of any insurance or
other proceeds lawfully or equitably payable to them in connection
with the transactions contemplated hereby and the collection of any
indebtedness or obligation of Borrower to Lender incurred hereunder
(including the payment by Borrower of the expense of an independent
appraisal on behalf of Lender in case of a fire or other casualty
affecting the Premises).
7.
Application of Loan Proceeds . To use the proceeds of
the loan being made pursuant to the Loan Documents solely for the
purpose of paying for the costs contained in the Use of Proceeds
Schedule (hereinafter defined) and in no event to use any of the
loan proceeds for personal, family or household
purposes.
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8.
Expenses . To pay, upon demand by Lender all costs of
closing the loan contemplated hereunder and all expenses of Lender
with respect thereto including but not limited to fees of
Lender’s Inspector, attorneys’ fees (including
attorneys’ fees, paralegal fees and other fees and costs
incurred by Lender subsequent to closing of the loan in connection
with the disbursement, administration, collection, restructure,
amendment, or transfer of the loan whether prior to or after
commencement of litigation, mediation, arbitration, trial, retrial,
appeal, bankruptcy or any other proceedings), advances, recording
expenses, surveys, title insurance premiums, intangible taxes,
documentary stamps, surtax and other revenue fees, escrow fees,
recording costs, architect or engineer’s costs and inspection
fees, expenses of foreclosure (including reasonable
attorneys’ fees) and similar items, and to allow all closing
papers, loan documents and other legal matters to be subject to the
approval of Lender’s attorneys. Following an event of
default, Lender shall have the right and option to deduct the
amount of any such expense from the un-disbursed loan proceeds and
such deduction shall constitute a loan disbursement under this
Agreement.
9.
Commencement and Completion of Construction .
Construction of the Improvements shall commence within 30 days of
the date hereof but in no event prior to recording a Notice of
Commencement (if the Construction of Improvements is such that
requires a Notice of Commencement to be filed under Chapter 713,
Florida Statutes, and then only as to such Improvements as are
approved by Lender for commencement of construction and that
portion of the Land upon which those Improvements are to be
constructed upon) and Borrower shall diligently pursue said
construction to completion; and shall supply such sums of money and
perform such duties as may be necessary to complete the
construction of said Improvements pursuant to the Plans and
Specifications and in full compliance with all terms and conditions
of the Loan Documents, all of which shall be accomplished on or
before October 1, 2007, and without liens, claims, or assessments
(actual or contingent) asserted against the Premises for any
material, labor, or other items furnished in connection therewith
and all in full compliance with the Florida’s Construction
Lien Law, Chapter 713, Florida Statutes, and further in compliance
with all construction, use, building, zoning, and other similar
requirements of any pertinent governmental authority and all other
restrictions, if any, affecting the Premises; evidence of
satisfactory compliance with all of which Borrower will provide to
Lender upon request therefor by Lender.
10.
Access . Except for driveways located on the Premises,
the rights of way for all roads necessary for the full utilization
of the Improvements for their intended purposes have either been
acquired by the appropriate governmental authority or have been
dedicated to public use and accepted by such governmental
authority, and all such roads shall have been completed, or all
necessary steps shall have been taken by the Borrower and such
governmental authority to assure the complete construction and
installation thereof prior to the date upon which access to the
Premises via such roads will be necessary. All curb cuts and
traffic signals shown on the plans and specifications are existing
or have been fully approved by all necessary governmental
authorities.
11.
Right of Lender to Inspect Premises . To permit Lender
and its representatives and agents to enter upon the Premises and
to inspect the Improvements and all materials to be used in the
construction thereof and to cooperate and cause Contractor to
cooperate with Lender and its representatives and agents during
such inspections (including making available to Lender working
copies of the Plans and Specifications together with all related
supplementary materials), provided, however, that this provision
shall not be deemed to impose upon Lender any obligation to
undertake such inspections.
12.
Correction of Defects . To promptly correct any
structural defect in the Improvements or any departure from the
Plans and Specifications not permitted by Paragraph 2 of this
Article III which has not been previously approved by Lender.
The advance of any loan proceeds shall not constitute a waiver of
Lender’s right to require compliance with this
covenant.
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13.
Sign Regarding Construction Financing . Lender will
erect and maintain on a site suitable to Lender on the Premises a
sign furnished by Lender indicating that construction financing is
being provided by Lender, all to the reasonable satisfaction of
Lender and Borrower shall prevent the destruction or removal of
said sign without the prior written approval of Lender.
14.
Books and Records . To keep and maintain proper and
accurate books, records and accounts reflecting all items of income
and expense of Borrower in connection with the Premises and the
construction thereon; and, upon the request of Lender, to make such
books, records, and accounts immediately available to Lender for
inspection or independent audit. Such inspection shall take
place in the Melbourne, Florida, offices of Borrower during normal
business hours.
15.
Notification of Claims by Subcontractors and Materialmen
. To advise Lender immediately, and in writing, if Borrower
receives any Notice to Owner, written or oral, from any laborer,
subcontractor, or materialmen in connection with any labor or
materials furnished in the construction of the
Improvements.
16.
Articles of Incorporation . To furnish Lender a
certificate of good standing of Borrower certified by the Secretary
of State of the state of incorporation of Borrower. Borrower
shall also furnish to Lender the Articles of Incorporation and
Bylaws of Borrower accompanied by a certificate from an appropriate
officer of Borrower that the copy is complete and that neither the
Articles of Incorporation nor Bylaws have been amended, annulled,
rescinded, or revoked since the date of the certificate of the
Secretary of State and a copy of resolutions of the Board of
Directors of Borrower authorizing the execution, delivery, and
performance of the Loan Documents and the borrowings hereunder, and
specifying the officer or officers of Borrower authorized to
execute the Loan Documents, accompanied by a certificate from an
appropriate officer that the resolutions are true and complete,
were duly adopted at a duly called meeting in which a quorum was
present and acting throughout, or were duly adopted by written
action, and have not been amended, annulled, rescinded or revoked
in any respect and remain in full force and effect on the date of
the certificate funds.
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