Disbursement Requests. (a) During each month, Borrower shall, subject to the conditions set forth herein and in the Loan Documents, request disbursements of the Loan to pay the actual costs incurred in connection with the construction and development of the Project. All disbursements shall be made by Agent within ten days of receiving a draw request and all other documentation or information required hereunder, from Borrower. (b) Agent and the Lenders shall not be required to make more than one Loan disbursement in any given 30 day period. Agent may at any time take such action as it deems appropriate to verify that the conditions precedent to each disbursement have been satisfied, including, without limitation, verification of any amounts due under the Construction Contract or any Subcontract. Borrower agrees to cooperate with Agent in any such action. If in the course of any such verification, any amount shown on the contract entered into for the performance of any portion of the Work (including the Construction Contract or any Subcontract), or any application for payment, sworn statement or waiver of lien is subject to a possible discrepancy, such discrepancy shall be eliminated by Borrower to Agent's reasonable satisfaction. Each request for disbursement shall be made by a letter from an authorized agent of Borrower addressed to Agent, specifying in detail the amount and mode of each disbursement and accompanied by the following, all in form and substance satisfactory to Agent: (i) An Owner's Sworn Statement and disbursement request, including an allocation among line items in the Budget, of all hard costs of construction so requested; (ii) A Contractor's Application for Payment and Sworn Contractor's Statement, together with (A) a statement of a duly authorized agent of the Contractor that all items of construction cost have been incorporated into the Project in accordance with the Plans and Specifications, and (B) waivers of lien from each contractor, subcontractor to whom payment is to be made, with respect to previous disbursements; (iii) Evidence (including invoices and contracts) showing the propriety of each non-construction cost item for which payment is requested and such supporting data as Agent may reasonably require to enable Agent to verify the correctness thereof; (iv) Certificates of the Contractor and the Consultant stating that each of them has made diligent investigation and that based on such investigation all Work performed to the date of the request for disbursement has been completed in substantial accordance with the Plans and Specifications and certifying (A) the percentage of completion of each component of the Work, (B) that there has been no material deviation from the contract amount under the Construction Contract or any Subcontract or the projected time of completion of any component of the Work, (C) the total cost to complete the Work, (D) and that after giving effect to all amounts previously certified for payment, plus the amount then requested, the remaining uncertified and undisbursed funds will be sufficient to pay all known costs required to complete the Work in accordance with the Plans and Specifications; (v) Copies of all licenses and permits (including building permits) necessary for construction and completion of the Work with respect thereto; and (vi) Such other documents, assignments, certificates and opinions as are required by the Title Company, or as may be reasonably required by Agent. (c) Notwithstanding anything contained in this Agreement to the contrary, Agent shall not be required to make any disbursement of the Loan pursuant to this Agreement until the Title Company is prepared to issue an endorsement to the Title Policy updating the same to the date of such disbursement and increasing the amount of coverage (including mechanic's lien coverage) thereunder by the amount so disbursed, and insuring the lien of the Deed of Trust to be superior to all defects in title other than the Permitted Exceptions.
Appears in 2 contracts
Samples: Loan Agreement (Windrose Medical Properties Trust), Loan Agreement (Windrose Medical Properties Trust)
Disbursement Requests. (a) During each month, Borrower shall, subject shall request and Lender shall be required to the conditions set forth herein and in the Loan Documents, request make disbursements of the Loan not more frequently than once each calendar month (except that up to pay 3 times during the actual costs incurred in connection with the construction and development term of the ProjectLoan, Borrower may submit twice monthly disbursements of the Loan). All disbursements shall be made by Agent within ten days of receiving a draw request and all other documentation or information required hereunder, from Borrower.
(b) Agent and the Lenders shall not be required to make more than one Loan disbursement in any given 30 day period. Agent Lender may at any time take such action as it deems appropriate to verify that the conditions precedent to each disbursement have been satisfied, including, without limitation, verification of any amounts due under the Construction Contract or any Subcontract. Borrower agrees to cooperate with Agent Lender in any such action. If in the course of any such verification, any amount shown on the any contract or subcontract entered into for the performance of any portion of the Work (including the Construction Contract or any Subcontract)Work, or any application for payment, sworn statement or waiver of lien is subject to a possible discrepancy, such discrepancy shall be eliminated resolved by Borrower to Agent's reasonable Lender’s satisfaction. Each request for disbursement shall be made within ten (10) Business Days of the requested date of disbursement, by a letter from an authorized agent the chief financial officer of Borrower Borrower, addressed to AgentLender, specifying in detail the amount and mode of each disbursement and accompanied by the following, all in form and substance satisfactory to AgentLender:
(i) An Owner's ’s Sworn Statement and disbursement request, including an allocation among line items in the Budget, of all hard costs of construction so requested;
(ii) A Contractor's ’s Application for Payment and Sworn Contractor's Statement’s Statement from Contractor, together with (A) and a statement of a duly authorized agent officer of the Contractor that all items of construction cost have been incorporated into the Project in accordance with the Plans and Specifications, and (B) together with waivers of lien with respect to the current disbursement and all previous disbursements from each contractor, subcontractor the Contractor and all subcontractors and materialmen to whom payment is to be made, with respect as are required by the Title Company as a condition to previous disbursementsissuing the date-down endorsement described in subparagraph 5.3(b) below;
(iii) Evidence (including invoices and contracts) showing the propriety of each non-construction cost item for which payment is requested and such supporting data as Agent may reasonably require to enable Agent to verify the correctness thereof;
(iv) Certificates A certificate of the Contractor certifying (based on its diligent investigation of the Project and the Consultant stating Work then performed) (A) that each of them has made diligent investigation and that based on such investigation all Work performed construction to the date of the request for disbursement has been completed in substantial accordance with the Plans and Specifications and certifying Specifications; (AB) that the percentage of completion of each component of the Work, ; (BC) its approval of the request for disbursement; (D) that there has been no material deviation from the contract amount under the Construction Contract or any Subcontract or from the projected time of completion of any component of the Work, ; and (CE) that the total cost to complete remaining undisbursed funds of the Work, Loan (D) and that after giving effect to all amounts previously certified for payment, payment plus the amount then requested, the remaining uncertified and undisbursed funds will requested shall be sufficient to pay all known costs required to complete the Work construction of the Project in accordance with the Plans and Specifications;
(viv) Copies An inspection report of all licenses and permits the Consultant (including building permitsto be obtained by Lender) necessary for construction and certifying the percentages of completion of the components of the Work and setting forth the amount authorized for disbursement and such other matters as Lender may require (including compliance with respect theretothe Plans and Specifications). It is understood and agreed by Borrower that any and all inspections of the Work made by Lender, the Consultant or their respective agents, employees and/or designees shall be solely for Lender’s own information and shall not be deemed to have been made for or on account of Borrower or any other party, and Lender shall have no liability or responsibility relating in any way whatsoever to the construction of the Project, including, but not limited to, the work thereon, the material or labor supplied in connection therewith, and any errors, inconsistencies or other defects in the Plans and Specifications; and
(viv) Such other documents, assignments, certificates and opinions as are required by the Title Company, or as may be reasonably required by AgentLender.
(cb) Notwithstanding anything contained in this Agreement to the contrary, Agent Lender shall not be required to make any disbursement of the Loan pursuant to this Agreement until the Title Company is prepared to issue an endorsement to the Title Policy Policy, updating the same to the date of such disbursement and increasing the amount of coverage thereunder to the Principal Balance (including mechanic's lien coverage) thereunder by taking into account the amount so disbursedthen current disbursement), and insuring the lien of the Deed of Trust Mortgage to be superior to all defects in title other than the Permitted ExceptionsExceptions and other exceptions hereafter approved by Lender in writing.
(c) No disbursement of any amount shown in the Budget as a contingency reserve shall by made without Lender’s approval with respect to the type and amount of the requested expenditure.
Appears in 2 contracts
Samples: Construction Loan Agreement (Campus Crest Communities, Inc.), Construction Loan Agreement (Campus Crest Communities, Inc.)
Disbursement Requests. (a) During each month, Borrower shall, subject shall request and Lender shall be required to the conditions set forth herein and in the Loan Documents, request make disbursements of the Loan to pay the actual costs incurred in connection with the construction and development of the Projectnot more frequently than once each calendar month per Loan. All disbursements shall be made by Agent within ten days of receiving a draw request and all other documentation or information required hereunder, from Borrower.
(b) Agent and the Lenders Lender shall not be required to make more than five disbursements in connection with the construction of any one Loan disbursement in any given 30 day periodUnit. Agent Lender may at any time take such action as it deems appropriate to verify that the conditions precedent to each disbursement have been satisfied, including, without limitation, verification of any amounts due under the Construction Contract or any Subcontract. Borrower agrees to cooperate with Agent Lender in any such action. If in the course of any such verification, any amount shown on the any contract or subcontract entered into for the performance of any portion of the Work (including the Construction Contract or any Subcontract)Work, or any application for payment, sworn statement or waiver of lien is subject to a possible discrepancy, such discrepancy shall be eliminated by Borrower to AgentLender's reasonable satisfaction. Each request for disbursement shall be made by a letter from an authorized agent the chief financial officer of Borrower Borrower, addressed to AgentLender, specifying in detail the amount and mode of each disbursement disbursement, and accompanied by the following, all in form and substance satisfactory to AgentLender:
(i) An Owner's Sworn Statement and disbursement request, including an allocation among line items in the Budget, of all hard costs of construction so requested;
(ii) A Contractor's Application for Payment and Sworn Contractor's StatementStatement from Contractor, together with (A) and a statement of a duly authorized agent officer of the Contractor that all items of construction cost have been incorporated into the Project in accordance with the Plans and Specifications, and (B) together with waivers of lien with respect to the current disbursement and all previous disbursements from each contractor, subcontractor Contractor and all subcontractors and materialmen to whom payment is to be made, with respect as are required by the Title Company as a condition to previous disbursementsissuing the date-down endorsements described in subparagraph (b) below;
(iii) Evidence (including invoices and contracts) showing the propriety of each non-construction cost item for which payment is requested and such supporting data as Agent may reasonably require to enable Agent to verify the correctness thereof;
(iv) Certificates An inspection report of the Contractor and Consultant certifying the Consultant stating that each of them has made diligent investigation and that based on such investigation all Work performed to the date of the request for disbursement has been completed in substantial accordance with the Plans and Specifications and certifying (A) the percentage percentages of completion of each component the components of the Work, (B) that there has been no material deviation from the contract amount under the Construction Contract or any Subcontract or the projected time of completion of any component of the Work, (C) the total cost to complete the Work, (D) Work and that after giving effect to all amounts previously certified for payment, plus setting forth the amount then requested, the remaining uncertified authorized for disbursement and undisbursed funds will be sufficient to pay all known costs required to complete the Work in accordance such other matters as Lender may require (including compliance with the Plans and Specifications;
(v) Copies of ). It is understood and agreed by Borrower that any and all licenses and permits (including building permits) necessary for construction and completion inspections of the Work with respect thereto; andmade by Lender, the Consultant or their respective agents, employees and/or designees shall be solely for Lender's own information and shall not be deemed to have been made for or on account of Borrower or any other party, and that Lender shall have no liability or responsibility relating in any way whatsoever to the construction of the Project, including, but not limited to, the work thereon, the material or labor supplied in connection therewith, and any errors, inconsistencies or other defects in the Plans and Specifications.
(viiv) Such other documents, assignments, certificates and opinions as are required by the Title Company, or as may be reasonably required by AgentLender.
(cb) Notwithstanding anything contained in this Agreement to the contrary, Agent Lender shall not be required to make any disbursement of the Loan pursuant to this Agreement until the Title Company is unconditionally prepared to issue an endorsement endorsements to the Title Policy Policies, updating the same to the date of such disbursement and increasing the amount of coverage (including mechanic's mechanic lien coverage) thereunder by to the amount so disbursedaggregate outstanding principal balance of the Loan (taking into account the then current disbursement), and insuring the lien of the Deed of Trust Mortgage and the Seller Mortgage to be superior to all defects in title other than the Permitted ExceptionsExceptions and other exceptions hereafter approved by Lender in writing.
(c) No disbursement of any amount shown in a Budget as a contingency reserve shall by made without Lender's approval with respect to the type and amount of the requested expenditure, which approval shall not be unreasonably withheld.
Appears in 1 contract
Samples: Construction Loan Agreement (Heartland Partners L P)
Disbursement Requests. (a) During each month, Borrower shall, subject to the conditions set forth herein and in the Loan Documents, request disbursements of the Loan to pay the actual costs incurred in connection with the construction and development of the Project. All disbursements shall be made by Agent within ten days of receiving a draw request and all other documentation or information required hereunder, from Borrower.
(b) Agent and the Lenders shall not be required to make more than one Loan disbursement in any given 30 day period. Agent may at any time take such action as it deems appropriate to verify that the conditions precedent to each disbursement have been satisfied, including, without limitation, verification of any amounts due under the Construction Contract or any Subcontract. Borrower agrees to cooperate with Agent in any such action. If in the course of any such verification, any amount shown on the contract entered into for the performance of any portion of the Work (including the Construction Contract or any Subcontract), or any application for payment, sworn statement or waiver of lien is subject to a possible discrepancy, such discrepancy shall be eliminated by Borrower to Agent's reasonable satisfaction. Each request for disbursement shall be made by a letter from an authorized agent of Borrower addressed to Agent, specifying in detail the amount and mode of each disbursement and accompanied by the following, all in form and substance satisfactory to Agent:
(i) An Owner's Sworn Statement and disbursement request, including an allocation among line items in the Budget, of all hard costs of construction so requested;
(ii) A Contractor's Application for Payment and Sworn Contractor's Statement, together with (A) Each request by the Architect acting pursuant to the provisions ofthis Agreement for disbursement ofinsurance proceeds, any Award or other funds for application to the cost ofrepair, restoration or demolition (the "work") shall be accompanied by a statement of a duly authorized agent certificate of the Contractor that all items of construction cost have been incorporated into the Project in accordance with the Plans and Specifications, and (B) waivers of lien from each contractor, subcontractor to whom payment is to be made, with respect to previous disbursements;
(iii) Evidence (including invoices and contracts) showing the propriety of each non-construction cost item for which payment is requested and such supporting data as Agent may reasonably require to enable Agent to verify the correctness thereof;
(iv) Certificates Architect or another Person having knowledge of the Contractor facts reasonably acceptable to the Owners and the Consultant stating that each of them has made diligent investigation and that based on such investigation all Work performed their Mortgagees, dated not more than ten (10) days prior to the date of the request for disbursement any such disbursement, stating the following in its professional judgment based on periodic observations of the work:
(1) That the amount requested either (a) has been completed or will be paid by or on behalf of an Owner (in substantial accordance with which event the Plans certificate shall name such Owner) or by or on behalfof all ofthe Owners (in which event the certificate shall specify the amount paid by each respective Owner), or (b) is properly due to contractors, subcontractors, materialmen, engineers, architects or other persons{whose names and Specifications addresses shall be stated) who have rendered or furnished certain services or materials for the work; such certificate shall also give a brief description of such services and certifying (A) materials and the percentage of completion of principal subdivisions or categories thereof, the respective amounts paid or due to each component named person and shall state the progress of the Workwork up to the date of the certificate and any other information required by the Mechanics' Lien Act and any title insurer affording coverage against mechanics' liens;
(2) That the amount requested, plus all sums previously disbursed, does not exceed the cost ofthe work actually in place up to the date ofthe certificate plus the cost of materials supplied and actually stored on site;
(3) That no part of the cost of the services and materials described in the certificate has been the basis ofthe withdrawal ofany funds pursuant to any previous request or is the basis of any other pending request for funds; and
(4) Other information which may from time to time be required by the Mortgageeswhichis customarilyrequired by mortgagees ofcomparable first-class buildings, as may be agreed to by Owners.
(B) that there has been no material deviation Upon:
(i) compliance with the provisions of Section 17. I(A), and C HlDOCS2I205 11 /3123 \ 11.57/2412000 9:37 AM 46
(ii) receipt ofcontractors' and subcontractors' sworn statements required under the Mechanics' Lien Act accompanied by partial or waivers of lien, as appropriate, and any other information required by any title insurer affording coverage against mechanics' liens from the contract amount under persons named in the Construction Contract sworn statements, and
(iii) approval by the title insurer, the Owners and the Mortgagees ofthe lienwaivers and other documentation, and the willingness ofthe title insurer to issue an endorsement (satisfactory to the Owners and the Mortgagees) insuring overpossi- ble mechanics'lien claims relating to work in place and the continued priority ofthe liens in favor ofthe Mortgagees, the Depositary shall, out of the monies held by the Depositary, payor cause to be paid to the Owners, contractors, subcontractors, materialmen, engineers, architects and other persons named in the Architect's certificate and contractors' and subcontractors' sworn statements the respective amounts stated in the certificate and statements as due to such persons. Notwithstanding the foregoing, any or any Subcontract all of the Owners or the projected time Mortgagees or the Depository may require that disbursements be made through a customary form of completion of any component of the Workconstruction escrow then in use in Chicago, (C) the total cost to complete the WorkIllinois, (D) and that after giving effect to all amounts previously certified for payment, plus the amount then requested, the remaining uncertified and undisbursed funds will with such changes as may be sufficient to pay all known costs required to complete conform to the Work requirements or provisions ofthis Agreement. The Depository may rely conclusively, with respect to the information contained therein, on any certificate furnished by the Architect to the Depositary in accordance with the Plans provi- sions of this Section 17.1 and Specifications;
(v) Copies of all licenses and permits (including building permits) necessary for construction and completion of the Work with respect thereto; and
(vi) Such other documents, assignments, certificates and opinions as are required by the Title Company, or as may be reasonably required by Agent.
(c) Notwithstanding anything contained in this Agreement to the contrary, Agent shall not be required to make liable or accountable for any disbursement of the Loan pursuant to this Agreement until the Title Company is prepared to issue an endorsement to the Title Policy updating the same to the date of funds made by it in reliance upon such disbursement and increasing the amount of coverage (including mechanic's lien coverage) thereunder by the amount so disbursed, and insuring the lien of the Deed of Trust to be superior to all defects in title other than the Permitted Exceptionscertificate or authorization.
Appears in 1 contract
Samples: Easement and Operating Agreement
Disbursement Requests. The Predevelopment Portion of Agency Loan and Construction Portion of Agency Loan shall be disbursed on a line-item by line-item basis in accordance with the Project Budget and the Project Financing Disbursement Agreement. In no event shall Agency have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Project Budget, unless approved, in writing, by the Executive Director; provided, however, that upon completion and payment of all work for a particular line item, Developer may move any amounts remaining in such line to any other line item where payment for work has not been completed, and no Agency consent shall be required therefor. Disbursement shall be made only upon Developer’s written request in the form attached hereto as Attachment No. 5 (a “Disbursement Request”) showing all costs that Developer intends to fund with such disbursement, itemized in such detail as the Executive Director may reasonably require, accompanied in each case by (a) During each month, Borrower shall, subject invoices and lien releases (if such work could give rise to mechanic’s or materialmen’s liens) reasonably satisfactory to the conditions set forth herein Executive Director, including in any event conditional lien releases executed by each contractor and in the Loan Documentssubcontractor who has received any payment for work performed, request disbursements of the Loan to pay the actual costs incurred in connection with the construction and development of the Project. All disbursements shall be made by Agent within ten days of receiving a draw request and all other documentation or information required hereunder, from Borrower.
(b) Agent all other documents and information reasonably required by the Lenders shall not be Executive Director. Agency agrees to fund each Disbursement Request within twenty-one (21) days after Agency’s receipt of the Disbursement Request in completed form with all required to make more than one Loan disbursement in any given 30 day period. Agent may at any time take such action as it deems appropriate to verify supporting documentation, and determination by Agency that all of the conditions precedent to each disbursement set forth in this Section 6.2(c) have been satisfied, including, without limitation, verification of any amounts due under the Construction Contract or any Subcontract. Borrower agrees to cooperate with Agent in any such action. If in the course of any such verification, any amount shown on the contract entered into for the performance of any portion of the Work (including the Construction Contract or any Subcontract), or any application for payment, sworn statement or waiver of lien is subject to a possible discrepancy, such discrepancy shall be eliminated waived by Borrower to Agent's reasonable satisfaction. Each request for disbursement shall be made by a letter from an authorized agent of Borrower addressed to Agent, specifying in detail the amount and mode of each disbursement and accompanied by the following, all in form and substance satisfactory to Agent:
(i) An Owner's Sworn Statement and disbursement request, including an allocation among line items in the Budget, of all hard costs of construction so requested;
(ii) A Contractor's Application for Payment and Sworn Contractor's Statement, together with (A) a statement of a duly authorized agent of the Contractor that all items of construction cost have been incorporated into the Project in accordance with the Plans and Specifications, and (B) waivers of lien from each contractor, subcontractor to whom payment is to be made, with respect to previous disbursements;
(iii) Evidence (including invoices and contracts) showing the propriety of each non-construction cost item for which payment is requested and such supporting data as Agent may reasonably require to enable Agent to verify the correctness thereof;
(iv) Certificates of the Contractor and the Consultant stating that each of them has made diligent investigation and that based on such investigation all Work performed to the date of the request for disbursement has been completed in substantial accordance with the Plans and Specifications and certifying (A) the percentage of completion of each component of the Work, (B) that there has been no material deviation from the contract amount under the Construction Contract or any Subcontract or the projected time of completion of any component of the Work, (C) the total cost to complete the Work, (D) and that after giving effect to all amounts previously certified for payment, plus the amount then requested, the remaining uncertified and undisbursed funds will be sufficient to pay all known costs required to complete the Work in accordance with the Plans and Specifications;
(v) Copies of all licenses and permits (including building permits) necessary for construction and completion of the Work with respect thereto; and
(vi) Such other documents, assignments, certificates and opinions as are required by the Title Company, or as may be reasonably required by AgentAgency.
(c) Notwithstanding anything contained in this Agreement to the contrary, Agent shall not be required to make any disbursement of the Loan pursuant to this Agreement until the Title Company is prepared to issue an endorsement to the Title Policy updating the same to the date of such disbursement and increasing the amount of coverage (including mechanic's lien coverage) thereunder by the amount so disbursed, and insuring the lien of the Deed of Trust to be superior to all defects in title other than the Permitted Exceptions.
Appears in 1 contract
Disbursement Requests. (a) During each month, Borrower shall, subject to the conditions set forth herein and in the Loan Documents, request disbursements of the Loan to pay the actual costs incurred in connection with the construction and development of the Project. All disbursements shall be made by Agent Lender within ten days of receiving a draw request and all other documentation or information required hereunder, from Borrower.
(b) Agent and the Lenders Lender shall not be required to make more than one Loan disbursement in any given 30 day period. Agent Lender may at any time take such action as it deems appropriate to verify that the conditions precedent to each disbursement have been satisfied, including, without limitation, verification of any amounts due under the Construction Contract or any Subcontract. Borrower agrees to cooperate with Agent Lender in any such action. If in the course of any such verification, any amount shown on the contract entered into for the performance of any portion of the Work (including the Construction Contract or any Subcontract), or any application for payment, sworn statement or waiver of lien is subject to a possible discrepancy, such discrepancy shall be eliminated by Borrower to AgentLender's reasonable satisfaction. Each request for disbursement shall be made by a letter from an authorized agent of Borrower addressed to AgentLender, specifying in detail the amount and mode of each disbursement and accompanied by the following, all in form and substance satisfactory to AgentLender:
(i) An Owner's Sworn Statement and disbursement request, including an allocation among line items in the Budget, of all hard costs of construction so requested;
(ii) A Contractor's Application for Payment and Sworn Contractor's Statement, together with (A) a statement of a duly authorized agent of the Contractor that all items of construction cost have been incorporated into the Project in accordance with the Plans and Specifications, and (B) waivers of lien from each contractor, subcontractor to whom payment is to be made, with respect to previous disbursements;
(iii) Evidence (including invoices and contracts) showing the propriety of each non-construction cost item for which payment is requested and such supporting data as Agent Lender may reasonably require to enable Agent Lender to verify the correctness thereof;
(iv) Certificates of the Contractor and the Consultant stating that each of them has made diligent investigation and that based on such investigation all Work performed to the date of the request for disbursement has been completed in substantial accordance with the Plans and Specifications and certifying (A) the percentage of completion of each component of the Work, (B) that there has been no material deviation from the contract amount under the Construction Contract or any Subcontract or the projected time of completion of any component of the Work, (C) the total cost to complete the Work, (D) and that after giving effect to all amounts previously certified for payment, plus the amount then requested, the remaining uncertified and undisbursed funds will be sufficient to pay all known costs required to complete the Work in accordance with the Plans and Specifications;
(v) Copies of all licenses and permits (including building permits) necessary for construction and completion of the Work with respect thereto; and
(vi) Such other documents, assignments, certificates and opinions as are required by the Title Company, or as may be reasonably required by AgentLender.
(c) Notwithstanding anything contained in this Agreement to the contrary, Agent Lender shall not be required to make any disbursement of the Loan pursuant to this Agreement until the Title Company is prepared to issue an endorsement to the Title Policy updating the same to the date of such disbursement and increasing the amount of coverage (including mechanic's lien coverage) thereunder by the amount so disbursed, and insuring the lien of the Deed of Trust to be superior to all defects in title other than the Permitted Exceptions.
Appears in 1 contract
Disbursement Requests. Seller may, from time to time, deliver to Escrowee written instructions requesting a Disbursement in the form attached hereto as Exhibit A (aeach, a “Disbursement Request”). With each Disbursement Request, Seller shall submit: (i) During each monthall invoices, Borrower shallstatements and other documentation (collectively, subject the “Payment Documentation”) evidencing the amount of the Disbursement and the payment of such Disbursement amount, (ii) a written confirmation or certificate from the LEP retained with respect to the conditions set forth herein Remediation Work performed to date is properly done and compliant with the Transfer Act, as defined in the Amendment (the “Compliance Certificate”), and (iii) all applicable conditional and final lien waivers and releases (collectively, the “Lien Waivers”) executed by the LEP retained with respect to the Remediation Work performed to date in form required by applicable law. The Payment Documentation, the Compliance Certificate and the Lien Waivers submitted with each Disbursement Request shall collectively be referred to as the “Supporting Documentation”. Concurrently with delivering the Disbursement Request and the Supporting Documentation to Escrowee, Seller shall deliver a copy of the same to the Owner for review and approval. Within three (3) business days after receipt of the Disbursement Request and Supporting Documentation, the Owner shall provide the Seller and Escrowee with written notice (the “Objection Notice”) stating either that the Owner agrees with the amount of the Disbursement requested in the Disbursement Request, and in such event the Loan Documents, request disbursements amount of the Loan to pay Disbursement requested in the actual costs incurred in connection with the construction and development of the Project. All disbursements Disbursement Request shall be made by Agent within ten days of receiving a draw request and all other documentation immediately released to, or information required hereunderat the order of, from Borrower.
(b) Agent and the Lenders shall not be required to make more than one Loan disbursement in any given 30 day period. Agent may at any time take such action as it deems appropriate to verify that Seller, or, if the conditions precedent to each disbursement have been satisfied, including, without limitation, verification of any amounts due under the Construction Contract or any Subcontract. Borrower agrees to cooperate with Agent in any such action. If in the course of any such verification, any amount shown on the contract entered into for the performance of Owner disputes any portion of the Work (including Disbursement requested in the Construction Contract or any Subcontract)Disbursement Request, or any application for paymentis not otherwise satisfied with the Supporting Documentation, sworn statement or waiver the Objection Notice shall set forth the same in detail, and in such event only the non-disputed amount of lien is subject to a possible discrepancy, such discrepancy the Disbursement shall be eliminated by Borrower to Agent's reasonable satisfaction. Each request for disbursement released to, or at the order of, Seller and Escrowee shall retain the disputed amount until it has received notice of resolution of such dispute from Seller and Owner or Escrowee shall be made by a letter from entitled, at its own discretion, to deliver such amount to an authorized agent appropriate court of Borrower addressed to Agent, specifying in detail the amount and mode of each disbursement and accompanied by the following, all in form and substance satisfactory to Agent:
(i) An Owner's Sworn Statement and disbursement request, including an allocation among line items in the Budget, of all hard costs of construction so requested;
(ii) A Contractor's Application for Payment and Sworn Contractor's Statement, together with (A) a statement of a duly authorized agent law pending resolution of the Contractor that all items dispute. Absent receipt of construction cost have been incorporated into an Objection Notice from the Project in accordance with the Plans and Specifications, and Owner within three (B3) waivers of lien from each contractor, subcontractor to whom payment is to be made, with respect to previous disbursements;
(iii) Evidence (including invoices and contracts) showing the propriety of each non-construction cost item for which payment is requested and such supporting data as Agent may reasonably require to enable Agent to verify the correctness thereof;
(iv) Certificates business days after receipt of the Contractor Disbursement Request and the Consultant stating that each of them has made diligent investigation and that based on such investigation all Work performed to the date of the request for disbursement has been completed in substantial accordance with the Plans and Specifications and certifying (A) the percentage of completion of each component of the Work, (B) that there has been no material deviation from the contract amount under the Construction Contract or any Subcontract or the projected time of completion of any component of the Work, (C) the total cost to complete the Work, (D) and that after giving effect to all amounts previously certified for payment, plus the amount then requestedSupporting Documentation, the remaining uncertified and undisbursed funds will Owner shall be sufficient deemed to pay all known costs required to complete the Work in accordance have agreed with the Plans and Specifications;
(v) Copies of all licenses and permits (including building permits) necessary for construction and completion of the Work with respect thereto; and
(vi) Such other documents, assignments, certificates and opinions as are required by the Title Company, or as may be reasonably required by Agent.
(c) Notwithstanding anything contained in this Agreement to the contrary, Agent shall not be required to make any disbursement of the Loan pursuant to this Agreement until the Title Company is prepared to issue an endorsement to the Title Policy updating the same to the date of such disbursement and increasing the amount of coverage (including mechanic's lien coverage) thereunder by the Disbursement requested in the Disbursement Request, and in such event the amount so disbursed, and insuring the lien of the Deed of Trust to Disbursement requested in the Disbursement Request shall be superior to all defects in title other than immediately released to, or at the Permitted Exceptionsorder of, the Seller.
Appears in 1 contract
Disbursement Requests. (a) During each month, Borrower shall, subject to the conditions set forth herein and in the Loan Documents, request disbursements of the Loan to pay the actual costs incurred in connection with the construction and development of the Project. All disbursements shall be made by Agent within ten days of receiving a draw request and all other documentation or information required hereunder, from Borrower.
(b) Agent and the Lenders Lender shall not be required to make disbursement of the Construction Loan not more frequently than one Loan disbursement in any given 30 day periodonce each calendar month. Agent Lender may at any time take such action as it deems appropriate to verify that the conditions precedent to each disbursement have been satisfied, including, without limitation, verification of any amounts due under the Construction Contract or any Subcontract. Borrower agrees to cooperate with Agent Lender in any such action. If in the course of any such verification, any amount shown on the any contract or subcontract entered into for the performance of any portion of the Work (including the Construction Contract or any Subcontract)Work, or any application for payment, sworn statement or waiver of lien is subject to a possible discrepancy, such discrepancy shall be eliminated by Borrower to AgentLender's reasonable satisfaction. Each request for disbursement shall be made by a letter from an authorized agent the chief financial officer of Borrower the Borrower, addressed to AgentLender, specifying in detail the amount and mode of each disbursement and accompanied by the following, all in form and substance satisfactory to AgentLender:
(i) An Owner's Sworn Statement and disbursement request, including an allocation among line items in the Budget, of all hard costs of construction so requested;
(ii) A Contractor's Application for Payment and Sworn Contractor's StatementStatement from Contractor, together with (A) and a statement of a duly authorized agent officer of the Contractor that all items of construction cost have been incorporated into the Project in accordance with the Plans and Specifications, and (B) together with waivers of lien with respect to the current disbursement and all previous disbursements from each contractor, subcontractor Contractor and all subcontractors and materialmen to whom payment is to be made, with respect as are required by the Title Company as a condition to previous disbursementsissuing the date-down endorsement described in subparagraph 5.3(b) below;
(iii) Evidence (including invoices and contracts) showing the propriety of each non-construction cost item for which payment is requested and such supporting data as Agent may reasonably require to enable Agent to verify the correctness thereof;
(iv) Certificates A certificate of the Contractor Architect certifying (based on its diligent investigation of the Project and the Consultant stating Work then performed) (A) that each of them has made diligent investigation and that based on such investigation all Work performed construction to the date of the request for disbursement has been completed in substantial accordance with the Plans and Specifications and certifying Specifications; (AB) the percentage of completion of each component of the Work, ; (BC) its approval of the request for disbursement; (D) that there has been no material deviation from the contract amount under the Construction Contract or any Subcontract or from the projected time of completion of any component of the Work, ; and (CE) the total construction cost to complete the Work, (D) construction of the Project and that after giving effect to all amounts previously certified for payment, plus the amount then requested, the remaining uncertified and undisbursed funds will shall be sufficient to pay all known costs required to complete the Work construction of the Project in accordance with the Plans and Specifications;
(v) Copies of all licenses and permits (including building permits) necessary for construction and completion of the Work with respect thereto; and
(viiv) An inspection report of the Consultant certifying the percentages of completion of the components of the Work and setting forth the amount authorized for disbursement and such other matters as Lender may require (including compliance with the Plans and Specifications). (It is understood and agreed by Borrower that any and all inspections of the Work made by Lender, the Consultant or their respective agents, employees and/or designees shall be solely for Lender's own information and shall not be deemed to have been made for or on account of Borrower or any other party, and that Lender shall have no liability or responsibility relating in any way whatsoever to the construction of the Project, including, but not limited to, the work thereon, the material or labor supplied in connection therewith, and any errors, inconsistencies or other defects in the Plans and Specifications.)
(v) Such other documents, assignments, certificates and opinions as are required by the Title Company, or as may be reasonably required by AgentLender.
(cb) Notwithstanding anything contained in this Agreement to the contrary, Agent Lender shall not be required to make any disbursement of the Construction Loan pursuant to this Agreement until the Title Company is prepared to issue an endorsement to the Title Policy Policy, updating the same to the date of such disbursement and increasing the amount of coverage (including mechanic's mechanic lien coverage) thereunder by to the amount so disbursedPrincipal Balance (taking into account the then current disbursement), and insuring the lien of the Deed of Trust Mortgage to be superior to all defects in title other than the Permitted ExceptionsExceptions and other exceptions hereafter approved by Lender in writing.
(c) No disbursement of any amount shown in the Budget as a contingency reserve shall by made without Lender's approval with respect to the type and amount of the requested expenditure, which approval shall not be unreasonably withheld.
Appears in 1 contract
Samples: Construction Loan Agreement (Heartland Partners L P)
Disbursement Requests. (a) During each monthThe proceeds of the Loans shall be disbursed from time to time by Bondowner Representative to or for the account of Borrower only in accordance with, Borrower shall, subject to and upon the satisfaction of the conditions set forth precedent contained herein and in the Loan DocumentsDisbursement Agreement, request disbursements including, with respect to each Disbursement, the delivery of a Requisition (as defined below) signed by Borrower and approved in writing by Bondowner Representative; provided that, prior to each Disbursement, Bondowner Representative agrees to provide two (2) days’ advance notice to Trustee of the Loan to pay the actual costs incurred in connection with the construction and development aggregate principal amount of the ProjectLoans then proposed to be disbursed. All disbursements The requisite approval of any Requisition for a Disbursement shall only be given in accordance with this Agreement and shall be made by Agent within ten days subject to the prior satisfaction of receiving a draw request and all other documentation or information required hereunder, from Borrower.
(b) Agent and the Lenders shall not be required to make more than one Loan disbursement in any given 30 day period. Agent may at any time take such action as it deems appropriate to verify that of the conditions precedent to each disbursement have been satisfiedsuch Disbursement contained in this Agreement and the Disbursement Agreement, including, without limitationbut not limited to, verification Sections 4.1, 4.2, and 4.3 hereof, as the case may be. The proceeds of the Loans (and all funds now or hereafter on deposit in the Disbursement Agreement) shall be disbursed on a line-item by line-item basis in accordance with the Approved Budget and subject to Section 3.11 hereof. In no event shall Bondowner Representative have any obligation to consent to any disbursement on account of any amounts due under item if the Construction Contract or any Subcontract. Borrower agrees amount to cooperate with Agent in any such action. If be disbursed on account of that item, when taken in the course aggregate with all amounts previously disbursed on account of any that item, exceeds the amount allocated to such verificationitem in the Approved Budget (as may be reallocated from time to time in accordance with Section 3.3 below and subject to Section 6.4 hereof). Disbursements shall be made only upon Borrower’s written request in the form attached hereto as Exhibit ”E” (a “Requisition”) showing all costs which Borrower intends to fund with such Disbursement, any amount shown on the contract entered into itemized in such detail as Bondowner Representative may reasonably require, accompanied in each case by (a) an Application and Certificate for the performance of any portion of the Work Payment (including the Construction Contract or any SubcontractAIA Documents G702 and G703), or other document acceptable to Bondowner Representative containing certifications by Contractor and Architect that construction to the date of the Disbursement Request is in accordance with the Plans and all recommendations contained in any application approved soils report, (b) invoices and lien releases satisfactory to Bondowner Representative including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for paymentwork performed, sworn statement or waiver of lien is subject (c) CLTA 122 endorsements to a possible discrepancy, such discrepancy shall be eliminated by Borrower to Agent's reasonable satisfaction. Each request for disbursement shall be made by a letter from an authorized agent of Borrower addressed to Agent, specifying in detail the amount and mode of each disbursement and accompanied by the following, all Title Policy in form and substance satisfactory to Agent:
(i) An Owner's Sworn Statement Bondowner Representative and disbursement request, including an allocation among line items in the Budget, of all hard costs of construction so requested;
(ii) A Contractor's Application for Payment and Sworn Contractor's Statement, together with (A) a statement of a duly authorized agent of the Contractor that all items of construction cost have been incorporated into the Project in accordance with the Plans and SpecificationsLender, and (Bd) waivers of lien from each contractor, subcontractor to whom payment is to all other documents and information reasonably required by the Lender and Bondowner Representative. Disbursement requests shall be made, with respect to previous disbursements;
submitted in duplicate no less than five (iii5) Evidence (including invoices and contracts) showing the propriety of each non-construction cost item for which payment is requested and such supporting data as Agent may reasonably require to enable Agent to verify the correctness thereof;
(iv) Certificates of the Contractor and the Consultant stating that each of them has made diligent investigation and that based on such investigation all Work performed Banking Days prior to the date of the request for disbursement has been completed in substantial accordance with requested Disbursement, and shall not be submitted more often than once monthly. Borrower agrees to deliver or cause to be delivered to the Plans Issuer and Specifications and certifying (A) the percentage of completion Trustee a copy of each component Requisition, including all attachments describing the Project Costs to be paid from the then requested Disbursement. Bondowner Representative shall make available to the Issuer and the Trustee, upon reasonable written request and at the cost and expense of the WorkBorrower, (B) that there has been no material deviation from the contract amount under the Construction Contract or any Subcontract or the projected time of completion of any component copies of the Work, (C) attachments accompanying each Disbursement request in its possession and agrees to maintain copies of such items so long as it remains the total cost to complete holder of the Work, (D) and that after giving effect to all amounts previously certified for payment, plus Bonds. Upon any transfer of the amount then requested, the remaining uncertified and undisbursed funds will be sufficient to pay all known costs required to complete the Work Bonds in accordance with the Plans and Specifications;
(v) Copies of all licenses and permits (including building permits) necessary for construction and completion terms of the Work Bond Documents and the Loan Documents, Bondowner Representative shall transfer all of its records relating to Disbursement requests, including all related attachments, provided that Bondowner Representative shall be permitted to retain copies thereof for its permanent records. Notwithstanding the foregoing, Bondowner Representative may, in its reasonable discretion, make Disbursements (with prior notice to Trustee as aforesaid accompanied by a list of the Disbursements to be made) from time to time, in the absence of a Disbursement request, to pay Issuer, Lender and/or Bondowner Representative fees and interest on the Loans [or fees and settlement payments in respect thereto; and
(vi) Such other documentsof the Swap Agreement] from funds allocated for that purpose in the Approved Budget, assignments, certificates and opinions as are required by the Title Company, or as may be reasonably required by Agent.
(c) Notwithstanding anything contained in this Agreement to the contrary, Agent shall not be required to make payments reasonably deemed advisable by Bondowner Representative to protect the Property or Lender’s and/or Bondowner Representative’s interests under any disbursement of the Loan pursuant to this Agreement until the Title Company is prepared to issue an endorsement to the Title Policy updating the same to the date of such disbursement and increasing the amount of coverage (including mechanic's lien coverage) thereunder by the amount so disbursedDocument, and insuring the lien to fulfill any reimbursement obligation of the Deed of Trust to be superior to all defects in title other than the Permitted Exceptions.Borrower under
Appears in 1 contract
Samples: Loan Agreement
Disbursement Requests. (a) During each month, Borrower shall, subject shall request and Lender shall be required to the conditions set forth herein and in the Loan Documents, request make disbursements of the Loan not more frequently than once each calendar month (except that up to pay 3 times during the actual costs incurred in connection with the construction and development term of the ProjectLoan, Borrower may submit twice monthly disbursements of the Loan). All disbursements shall be made by Agent within ten days of receiving a draw request and all other documentation or information required hereunder, from Borrower.
(b) Agent and the Lenders shall not be required to make more than one Loan disbursement in any given 30 day period. Agent Lender may at any time take such action as it deems appropriate to verify that the conditions precedent to each disbursement have been satisfied, including, without limitation, verification of any amounts due under the Construction Contract or any Subcontract. Borrower agrees to cooperate with Agent Lender in any such action. If in the course of any such verification, any amount shown on the any contract or subcontract entered into for the performance of any portion of the Work (including the Construction Contract or any Subcontract)Work, or any application for payment, sworn statement or waiver of lien is subject to a possible discrepancy, such discrepancy shall be eliminated resolved by Borrower to Agent's reasonable Lender’s satisfaction. Each request for disbursement shall be made within ten (10) Business Days of the requested date of disbursement, by a letter from an authorized agent the chief financial officer of Borrower Borrower, addressed to AgentLender, specifying in detail the amount and mode of each disbursement and accompanied by the following, all in form and substance satisfactory to AgentLender:
(i) An Owner's ’s Sworn Statement and disbursement request, including an allocation among line items in the Budget, of all hard costs of construction so requested;
(ii) A Contractor's ’s Application for Payment and Sworn Contractor's Statement’s Statement from Contractor, together with (A) and a statement of a duly authorized agent officer of the Contractor that all items of construction cost have been incorporated into the Project in accordance with the Plans and Specifications, and (B) together with waivers of lien with respect to the current disbursement and all previous disbursements from each contractor, subcontractor the Contractor and all subcontractors and materialmen to whom payment is to be made, with respect as are required by the Title Company as a condition to previous disbursementsissuing the date-down endorsement described in subparagraph 5.3(b) below;
(iii) Evidence (including invoices and contracts) showing the propriety of each non-construction cost item for which payment is requested and such supporting data as Agent may reasonably require to enable Agent to verify the correctness thereof;
(iv) Certificates A certificate of the Contractor certifying (based on its diligent investigation of the Project and the Consultant stating Work then performed) (A) that each of them has made diligent investigation and that based on such investigation all Work performed construction to the date of the request for disbursement has been completed in substantial accordance with the Plans and Specifications and certifying Specifications; (AB) that the percentage of completion of each component of the Work, ; (BC) its approval of the request for disbursement; (D) that there has been no material deviation from the contract amount under the Construction Contract or any Subcontract or from the projected time of completion of any component of the Work, ; and (CE) that the total cost to complete remaining undisbursed funds of the Work, Loan (D) and that after giving effect to all amounts previously certified for payment, payment plus the amount then requested, the remaining uncertified and undisbursed funds will requested shall be sufficient to pay all known costs required to complete the Work construction of the Project in accordance with the Plans and Specifications;
(viv) Copies An inspection report of all licenses and permits the Consultant (including building permitsto be obtained by Lender) necessary for construction and certifying the percentages of completion of the components of the Work and setting forth the amount authorized for disbursement and such other matters as Lender may require (including compliance with respect theretothe Plans and Specifications). It is understood and agreed by Borrower that any and all inspections of the Work made by Lender, the Consultant or their respective agents, employees and/or designees shall be solely for Lender’s own information and shall not be deemed to have been made for or on account of Borrower or any other party, and Lender shall have no liability or responsibility relating in any way whatsoever to the construction of the Project, including, but not limited to, the work thereon, the material or labor supplied in connection therewith, and any errors, inconsistencies or other defects in the Plans and Specifications; and
(viv) Such other documents, assignments, certificates and opinions as are required by the Title Company, or as may be reasonably required by AgentLender.
(cb) Notwithstanding anything contained in this Agreement to the contrary, Agent Lender shall not be required to make any disbursement of the Loan pursuant to this Agreement until the Title Company is prepared to issue an endorsement to the Title Policy Policy, updating the same to the date of such disbursement and increasing the amount of coverage thereunder to the Principal Balance (including mechanic's lien coverage) thereunder by taking into account the amount so disbursedthen current disbursement), and insuring the lien of the Deed of Trust Mortgage to be superior to all defects in title other than the Permitted ExceptionsExceptions and other exceptions hereafter approved by Lender in writing.
(c) No disbursement of any amount shown in the Budget as a contingency reserve shall by made without Lender’s approval with respect to the type and amount of the requested expenditure. 5.4
Appears in 1 contract
Samples: Construction Loan Agreement
