Amount of Advances. In no event shall any Bank be obligated to advance more than its Commitment, or, if less, its Commitment Percentage of total Project Costs actually incurred by the Borrower less Required Equity Funds. In no event shall any Advance for Direct Costs of constructing the Improvements exceed an amount equal to the sum of (a) the total value of the labor, materials, fixtures, machinery and equipment completed, approved and incorporated into the Land or the Improvements prior to the date of the Draw Request for such Advance, minus (b) retainage in an amount equal to ten percent (10%) of such total value described in (a) ("Retainage"), minus (c) the total amount of any Advances previously made by the Banks for such Direct Costs. Notwithstanding the foregoing, an Advance in excess thereof may be made hereunder for the purpose of making final payment of any balance due any subcontractor (including materialmen or suppliers within the term "subcontractor") after full and final completion of the work on the Improvements being done by such subcontractor or after full and final completion of the work on the Improvements constituting a Phase of the Project being done by such subcontractor, as certified by the Construction Inspector, and delivery to the Agent of such items as are required by Section 12.6 as the Agent may deem applicable, including without limitation, such evidence as may be reasonably required by the Agent to assure the Banks that no party claims or has a right to claim any statutory or common law lien arising out of such subcontractor's work or the supplying of labor, equipment, material, and/or services in connection therewith. Retainage shall otherwise be advanced by the Banks subject to the terms of this Agreement to the Borrower upon satisfaction of the conditions set forth in Section 12.6. With respect to any other Direct Costs and all Indirect Costs, in no event shall any Advance exceed an amount equal to the amount of such Direct Costs and Indirect Costs approved by the Agent, incurred by the Borrower prior to the date of the Draw Request for such Advance, and theretofore paid or to be paid with the proceeds of such Advance, less the total amount of any Advances previously made by the Banks for such Direct Costs and Indirect Costs.
Appears in 2 contracts
Samples: Construction Loan Agreement (Walden Residential Properties Inc), Construction Loan Agreement (Walden Residential Properties Inc)
Amount of Advances. In no event shall any Bank be obligated to advance more than its Commitment, or, if less, its Commitment Percentage of total Project Costs actually incurred by the Borrower less Required Equity Funds. In no event shall any Advance for Direct Costs of constructing the Improvements exceed an amount equal to the sum of (a) the total value of the labor, materials, fixtures, machinery and equipment completed, approved and incorporated into the Land or the Improvements prior to the date of the Draw Request for such Advance, minus (b) retainage in an amount equal to ten percent (10%) of such total value described in (a) ("Retainage"), minus (c) the total amount of any Advances previously made by the Banks for such Direct Costs. Notwithstanding the foregoing, an Advance in excess thereof may be made hereunder for the purpose of making final payment of any balance due any subcontractor (including materialmen or suppliers within the term "subcontractor") after full and final completion of the work on the Improvements being done by such subcontractor or after full and final completion of the work on the Improvements constituting a Phase of the Project being done by such subcontractor, as certified by the Construction Inspector, and delivery to the Agent of such items as are required by Section 12.6 as the Agent may deem applicable, including without limitation, such evidence as may be reasonably required by the Agent to assure the Banks that no party claims or has a right to claim any statutory or common law lien arising out of such subcontractor's work or the supplying of labor, equipment, material, and/or services in connection therewith. Retainage shall otherwise be advanced by the Banks subject to the terms of this Agreement to the Borrower upon satisfaction of the conditions set forth in Section 12.6. With respect to any other Direct Costs and all Indirect Costs, in In no event shall any Advance exceed an amount equal to the difference between the full amount of such Direct Construction Costs and Indirect Costs approved by the Agent, incurred by the Borrower prior to the date of the Draw Request for such Advance, and theretofore paid or to be paid with the proceeds of such Advance, less the total amount of Advance plus any Advances previously made Construction Costs incurred by the Banks Property Owner through the date of the Draw Request for such Direct Costs Advance minus the applicable Retainage for each contract and Indirect Costssubcontract. It is further understood that the Retainage described above is intended to provide a contingency fund protecting the Lenders against the failure of the Borrower or another Borrower Party to fulfill its obligations under the Loan Documents, and that the Agent may charge amounts against such Retainage in the event the Agent or the Lenders are required or elect to expend funds to cure any Event of Default.
(b) The portion of Retainage that relates to work or materials supplied by any contractor in connection with the Improvements will, upon request, be disbursed to the Borrower subject to satisfaction of the following conditions, whether before or after the completion of the Improvements: (i) no Event of Default has occurred and is continuing; (ii) the Construction Consultant verifies to the Agent that such contractor has completed 100% of its work for the Improvements and has supplied 100% of all materials for the Project in compliance in all material respects with such contractor’s contract and in conformity with the Plans and Specifications for the Project (except for non-material deviations therefrom that do not adversely affect the use of the Improvements for their intended purpose or their value); (iii) such contractor shall execute a Lien waiver in the form attached hereto as Exhibit G; and (iv) if required by the Agent, the disbursement of such portion of the Retainage shall be approved by any surety company that has issued a Payment and Performance Bond with respect to such contractor; provided, however, that, notwithstanding the preceding portion of this sentence, in the event that the preceding conditions set forth in clauses (i) through (iv) have been met by MDI except that, in lieu of clause (ii) the Construction Consultant verifies that Substantial Completion has occurred and in respect of clause (iii) a Lien waiver in the form of Exhibit G attached hereto has been executed by MDI, then 50% of the Retainage relating to MDI’s Construction Manager’s fee shall be disbursed to the Property Owner. Notwithstanding the foregoing, in the event that Agent transfers to the Senior Lender all Retainage held by Agent in connection with the first advance of the Senior Loan occurring after the Closing Date, in accordance with the Four-Party Agreement, all such Retainage shall thereafter be disbursed as directed by the Senior Lender pursuant to the terms and provisions of the Senior Loan Documents (and the construction escrow agreement executed in connection therewith).
Appears in 1 contract
Samples: Mezzanine Construction Loan Agreement (Prime Group Realty Trust)
Amount of Advances. In no event shall any Bank be obligated to advance more than its Commitment, or, if less, its Commitment Percentage of total Project Costs actually incurred by the Borrower less Required Equity Funds. In no event shall any Advance for Direct Costs of constructing the Improvements exceed an amount equal to the sum of (a) the total value of the labor, materials, fixtures, machinery and equipment completed, approved and incorporated into the Land or the Improvements prior to the date of the Draw Request for such Advance, minus (b) retainage in an amount equal to ten percent (10%) of such total value described in (a) ("Retainage"), minus (c) the total amount of any Advances previously made by the Banks for such Direct Costs. Notwithstanding the foregoing, an Advance in excess thereof may be made hereunder for the purpose of making final payment of any balance due any subcontractor (including materialmen or suppliers within the term "subcontractor") after full and final completion of the work on the Improvements being done by such subcontractor or after full and final completion of the work on the Improvements constituting a Phase of the Project being done by such subcontractor, as certified by the Construction Inspector, and delivery to the Agent of such items as are required by Section 12.6 as the Agent may deem applicable, including without limitation, such evidence as may be reasonably required by the Agent to assure the Banks that no party claims or has a right to claim any statutory or common law lien arising out of such subcontractor's work or the supplying of labor, equipment, material, and/or services in connection therewith. Retainage shall otherwise be advanced by the Banks subject to the terms of this Agreement to the Borrower upon satisfaction of the conditions set forth in Section 12.6. With respect to any other Direct Costs and all Indirect Costs, in In no event shall any Advance exceed an amount equal to the full amount of such Direct Construction Costs and Indirect Costs approved by the Agent, incurred by the Borrower prior to through the date of the Draw Request for such AdvanceAdvance minus (i) the applicable Retainage for each relevant contract and subcontract specified on such Draw Request and minus (ii) the full amount of Construction Costs theretofore paid. It is further understood that the Retainage described above is intended to provide a contingency fund protecting the Lenders against the failure of the Borrower or another Borrower Party to fulfill its obligations under the Loan Documents, and theretofore paid that the Agent may charge amounts against such Retainage in the event the Agent or the Lenders are required or elect to be paid expend funds to cure any Event of Default.
(b) The portion of Retainage that relates to work or materials supplied by any contractor in connection with the proceeds Improvements will upon request be disbursed to the Borrower subject to satisfaction of the following conditions, whether before or after the completion of the Improvements: (i) no Event of Default then exists; (ii) the Construction Consultant verifies to the Agent that such contractor has completed 100% of its work for the Improvements and has supplied 100% of all materials for the Project in compliance in all material respects with such contractor’s contract and in conformity with the Plans and Specifications (except for non-material deviations therefrom that do not adversely affect the use of the Improvements for their intended purpose or their value); (iii) such contractor shall execute a lien waiver in the form attached hereto as Exhibit H; and (iv) if required by the Agent, the disbursement of such Advanceportion of the Retainage shall be approved by any surety company that has issued a Payment or Performance Bond with respect to such contractor; provided, less however, that, notwithstanding the total amount preceding portion of any Advances previously made this sentence, in the event that the preceding conditions set forth in clauses (i) through (iv) have been met by MDI except that, in lieu of clause (ii) the Banks for such Direct Costs Construction Consultant verifies that Substantial Completion has occurred and Indirect Costsin respect of clause (iii) a lien waiver in the form of Exhibit I attached hereto has been executed by MDI, then 50% of the Retainage relating to MDI’s Construction Manager’s fee shall be disbursed to the Borrower.
Appears in 1 contract
Amount of Advances. In 2.8.1 With respect to each Project, in no event shall any Bank Agent and the Lenders be obligated to advance more than its Commitmentthe least of (i) the applicable Loan Amount Project Allocation for such Project, or, if less, its Commitment Percentage of total (ii) the aggregate Adjusted Project Costs actually incurred by Borrower for such Project, or (iii) the Borrower less Required Equity Funds. In Borrowing Base for such Project.
2.8.2 With respect to each Project, in no event shall any Advance for Direct Costs of constructing the Improvements of such Project exceed an amount equal to the sum of (a) the total value costs of the labor, materialsmaterials (including Stored Materials pursuant to Section 2.12.1 below), fixtures, machinery and equipment completed, approved and incorporated into the Land of such Project or the Improvements of such Project prior to the date of the Draw Request for such Advance, minus less (ba) retainage in an the amount equal to ten percent (10%) of such total value described specified in (a) the applicable Construction Contract ("Retainage"), minus (cb) the total amount of any Advances previously made by the Banks Lenders for such Direct Costs. Notwithstanding the foregoing, an Advance in excess thereof may be made hereunder for the purpose Costs of making final payment of any balance due any subcontractor (including materialmen or suppliers within the term "subcontractor") after full and final completion of the work on the Improvements being done by such subcontractor or after full and final completion of the work on the Improvements constituting a Phase of the Project being done by such subcontractor, as certified by the Construction InspectorProject, and delivery to (c) any Escrow Deposits used in the Agent construction of such items as are required by Section 12.6 as the Agent may deem applicableProject.
2.8.3 With respect to each Project, including without limitation, such evidence as may be reasonably required by the Agent to assure the Banks that no party claims or has a right to claim any statutory or common law lien arising out of such subcontractor's work or the supplying of labor, equipment, material, and/or services in connection therewith. Retainage shall otherwise be advanced by the Banks subject Agent to the terms of this Agreement to the Borrower upon satisfaction of the conditions set forth in Section 12.6. the applicable Construction Contract (as approved by Agent); provided, that if no Event of Default has occurred and is continuing, Agent shall permit disbursement of Retainage for specific subcontractors upon Agent's receipt of the following: (i) evidence of compliance with the subcontract; (ii) approval by the surety under the applicable Payment and Performance Bond, if required thereunder; (iii) Construction Inspector's approval; (iv) final lien waivers for work completed; and (v) approval from any Governmental Authority required to inspect such work.
2.8.4 With respect to any other Direct Costs of any Project and all Indirect CostsCosts of any Project, in no event shall any Advance exceed an amount equal to the amount of such Direct Costs and Indirect Costs approved by the Agent, incurred by the Borrower prior to the date of the Draw Request for such Advance, and theretofore paid or to be paid with the proceeds of such Advance, less the total amount of any Advances previously made by the Banks Lenders for such Direct Costs and Indirect Costs.
Appears in 1 contract
Samples: Revolving Credit Construction Loan Agreement (Wci Communities Inc)
Amount of Advances. In 2.8.1 With respect to each Project and subject to the limitations contained in Section 2.1 above, in no event shall any Bank Agent and the Lenders be obligated to advance more than its Commitmentthe least of (i) the applicable Loan Amount Project Allocation for such Project, or, if less, its Commitment Percentage of total (ii) the aggregate Adjusted Project Costs actually incurred by Borrower for such Project, or (iii) the Borrower less Required Equity Funds. In Borrowing Base for such Project.
2.8.2 With respect to each Project, in no event shall any Advance for Direct Costs of constructing the Improvements of such Project exceed an amount equal to the sum of (a) the total value costs of the labor, materialsmaterials (including Stored Materials pursuant to Section 2.12.1 below), fixtures, machinery and equipment completed, approved and incorporated into the Land of such Project or the Improvements of such Project prior to the date of the Draw Request for such Advance, minus less (ba) retainage in an the amount equal to ten percent (10%) of such total value described specified in (a) the applicable Construction Contract ("Retainage"), minus (cb) the total amount of any Advances previously made by the Banks Lenders for such Direct Costs. Notwithstanding the foregoing, an Advance in excess thereof may be made hereunder for the purpose Costs of making final payment of any balance due any subcontractor (including materialmen or suppliers within the term "subcontractor") after full and final completion of the work on the Improvements being done by such subcontractor or after full and final completion of the work on the Improvements constituting a Phase of the Project being done by such subcontractor, as certified by the Construction InspectorProject, and delivery to (c) any Escrow Deposits used in the Agent construction of such items as are required by Section 12.6 as the Agent may deem applicableProject.
2.8.3 With respect to each Project, including without limitation, such evidence as may be reasonably required by the Agent to assure the Banks that no party claims or has a right to claim any statutory or common law lien arising out of such subcontractor's work or the supplying of labor, equipment, material, and/or services in connection therewith. Retainage shall otherwise be advanced by the Banks subject Agent to the terms of this Agreement to the Borrower upon satisfaction of the conditions set forth in Section 12.6. the applicable Construction Contract (as approved by Agent); provided, that if no Event of Default has occurred and is continuing, Agent shall permit disbursement of Retainage for specific subcontractors upon Agent's receipt of the following: (i) evidence of compliance with the subcontract; (ii) approval by the surety under the applicable Payment and Performance Bond, if required thereunder; (iii) Construction Inspector's approval; (iv) final lien waivers for work completed; and (v) approval from any Governmental Authority required to inspect such work.
2.8.4 With respect to any other Direct Costs of any Project and all Indirect CostsCosts of any Project, in no event shall any Advance exceed an amount equal to the amount of such Direct Costs and Indirect Costs approved by the Agent, incurred by the Borrower prior to the date of the Draw Request for such Advance, and theretofore paid or to be paid with the proceeds of such Advance, less the total amount of any Advances previously made by the Banks Lenders for such Direct Costs and Indirect Costs.
Appears in 1 contract
Samples: Revolving Credit Construction Loan Agreement (Wci Communities Inc)
Amount of Advances. In 2.8.1 With respect to each Project and subject to the limitations contained in Section 2.1 above, in no event shall any Bank Agent and the Lenders be obligated to advance more than its Commitmentthe least of (i) the applicable Loan Amount Project Allocation for such Project, or, if less, its Commitment Percentage of total (ii) the aggregate Adjusted Project Costs actually incurred by Borrower for such Project, or (iii) the Borrower less Required Equity Funds. In Borrowing Base for such Project.
2.8.2 With respect to each Project, in no event shall any Advance for Direct Costs of constructing the Improvements of such Project exceed an amount equal to the sum of (a) the total value costs of the labor, materialsmaterials (including Stored Materials pursuant to Section 2.12.1 below), fixtures, machinery and equipment completed, approved and incorporated into the Land of such Project or the Improvements of such Project prior to the date of the Draw Request for such Advance, minus less (ba) retainage in an the amount equal to ten percent specified in the applicable Construction Contract (10%) of such total value described in (a) ("“Retainage"”), minus (cb) the total amount of any Advances previously made by the Banks Lenders for such Direct Costs. Notwithstanding the foregoing, an Advance in excess thereof may be made hereunder for the purpose Costs of making final payment of any balance due any subcontractor (including materialmen or suppliers within the term "subcontractor") after full and final completion of the work on the Improvements being done by such subcontractor or after full and final completion of the work on the Improvements constituting a Phase of the Project being done by such subcontractor, as certified by the Construction InspectorProject, and delivery to (c) any Escrow Deposits used in the Agent construction of such items as are required by Section 12.6 as the Agent may deem applicableProject.
2.8.3 With respect to each Project, including without limitation, such evidence as may be reasonably required by the Agent to assure the Banks that no party claims or has a right to claim any statutory or common law lien arising out of such subcontractor's work or the supplying of labor, equipment, material, and/or services in connection therewith. Retainage shall otherwise be advanced by the Banks subject Agent to the terms of this Agreement to the Borrower upon satisfaction of the conditions set forth in Section 12.6. the applicable Construction Contract (as approved by Agent); provided, that if no Event of Default has occurred and is continuing, Agent shall permit disbursement of Retainage for specific subcontractors upon Agent’s receipt of the following: (i) evidence of compliance with the subcontract; (ii) approval by the surety under the applicable Payment and Performance Bond, if required thereunder; (iii) Construction Inspector’s approval; (iv) final lien waivers for work completed; and (v) approval from any Governmental Authority required to inspect such work.
2.8.4 With respect to any other Direct Costs of any Project and all Indirect CostsCosts of any Project, in no event shall any Advance exceed an amount equal to the amount of such Direct Costs and Indirect Costs approved by the Agent, incurred by the Borrower prior to the date of the Draw Request for such Advance, and theretofore paid or to be paid with the proceeds of such Advance, less the total amount of any Advances previously made by the Banks Lenders for such Direct Costs and Indirect Costs.
Appears in 1 contract
Samples: Revolving Credit Construction Loan Agreement (Wci Communities Inc)
Amount of Advances. In no event RELEASE OF RETAINAGE. Aggregate Advances under the Loan shall any Bank be obligated to advance more than its Commitment, or, if less, its Commitment Percentage never exceed the lesser of the Loan Amount or the aggregate of the initial Advance for the Acquisition plus total Project Costs actually incurred by the Borrower, less, in all events, Borrower's Required Equity. Prior to any Advances for Project Costs Borrower shall provide evidence satisfactory to Lender that Borrower has contributed not less than $4,500,000 towards such costs as a part of Borrower's Required Equity Funds(and in addition to the portion of Borrower's Required Equity used for the Acquisition). In no event shall any Advance for Direct Costs of constructing the Improvements Renovation Project exceed an amount equal to the sum of (a) the total value (as determined by the Lender) of the labor, materials, fixtures, machinery and equipment completed, approved and incorporated into the Land or the Improvements Renovation Project prior to the date of the Draw Request for such Advance, minus less (b) retainage in an amount equal to ten percent (10%), with no further retainage upon Lender's determination that the Renovation Project is fifty percent (50%) completed, of such total value described in (a) ("Retainage")) except to the extent the purpose of the Advance is to pay Retainage under the terms hereof, minus less (c) the total amount of any Advances previously made by the Banks Lender for such Direct Costs. Notwithstanding the foregoing, an Advance in excess thereof may be made hereunder less (d) any Borrower's Required Equity designated by Lender for the purpose of making final payment of any balance due any subcontractor (including materialmen or suppliers within the term "subcontractor") after full and final completion of the work on the Improvements being done by such subcontractor or after full and final completion of the work on the Improvements constituting a Phase of the Project being done by such subcontractor, as certified by the Construction Inspector, and delivery application to the Agent of such items as are required by Section 12.6 as the Agent may deem applicable, including without limitation, such evidence as may be reasonably required by the Agent to assure the Banks that no party claims or has a right to claim any statutory or common law lien arising out of such subcontractor's work or the supplying of labor, equipment, material, and/or services in connection therewith. Retainage shall otherwise be advanced by the Banks subject to the terms of this Agreement to the Borrower upon satisfaction of the conditions set forth in Section 12.6Direct Costs. With respect to any other Direct Costs and all Indirect Costs, in no event shall any Advance exceed an amount equal to the amount of such Direct Costs and Indirect Costs approved by the AgentLender, incurred by the Borrower prior to the date of the Draw Request for such AdvanceAdvances, and theretofore paid or to be paid with the proceeds of such Advance, less the total amount of any Advances previously made by the Banks Lender for such Direct Costs and Indirect Costs and less any Borrower's Required Equity designated by Lender for application to such Costs. With respect to any particular construction subcontract, Retainage shall be available for advance only upon delivery of evidence satisfactory to Lender that all work under such subcontract has been 100% completed and approved by the Construction Inspector and, if required by Lender, the Key Tenant and with Lender having received such final lien waivers as Lender may require in connection therewith. Except as set forth in the preceding sentence, retainage on account of the Construction Contract shall not be available for advance until the final completion of the Project as approved by the Lender and, if requested by Lender, the Key Tenant, and with Lender having received such final lien waivers as Lender may require in connection therewith.
Appears in 1 contract
Samples: Acquisition and Construction Loan Agreement (Praecis Pharmaceuticals Inc)