Common use of Draw Requests Clause in Contracts

Draw Requests. In connection with a request for each Additional Advance, Borrower shall submit to Lender and Construction Consultant a draw request (each, a “Draw Request”) substantially in the form required pursuant to Section 2.1.5(b) not less than ten (10) Business Days (but not more than sixty (60) days) prior to the applicable Advance Date; provided that there shall be no more than one Draw Request for Approved Project Expenditures and no more than one Draw Request for Interest and Carry Cost in each calendar month. Each Draw Request for Approved Project Expenditures shall specify the Hard Costs (which shall not exceed the value of work in place and Stored Materials as supported by invoices and other supporting documentation, as reasonably approved by Construction Consultant, less any Retainage), including deposits paid to any Contractor or Trade Contractor, and Soft Costs (including deposits required to be paid pursuant to any agreement covering Soft Costs)) and Interest and Carry Costs to be paid from the proceeds of the requested Additional Advance. No Additional Advance with respect to the payment of any Advance Item constituting Approved Project Expenditure shall be requested or advanced (x) for an amount that, together with the amount of Additional Advance with respect to the payment of all other Advance Items constituting Approved Project Expenditure then being requested hereunder and under the Mortgage Loan Agreement, is less than $150,000 (other than the last requested Additional Advance with respect to such Advance Item if less) or (y) more frequently than once in any calendar month. Each Draw Request in connection with an Additional Advance for the payment of Hard Costs shall specify the amount of any Retainage previously withheld and which has then become payable by Borrower, with supporting documentation describing in reasonable detail the basis for any such disbursements. All Draw Requests shall be approved by Lender, not to be unreasonably withheld, and, with respect to Hard Costs, reasonably approved for payment by Construction Consultant. (b)

Draw Requests. In connection with a request for each Additional Advance, Borrower shall submit to Lender Agent and the Construction Consultant a draw request Draw Request (each, a “Draw Request”) substantially in the form required pursuant to Section 2.1.5(bforms attached hereto as SCHEDULES II through IX) ("BORROWER'S REQUISITION") not less than ten eight (10) 8) Business Days (but not more than sixty (60) days) prior to the applicable Advance Date; provided that there shall be no more than one Draw Request for Approved Project Expenditures date upon which a disbursement of the Loan is requested (the "BORROWING DATE") and no more than one Draw Request for Interest and Carry Cost in each calendar month. Each Draw Request for Approved Project Expenditures shall specify the Hard Costs (which shall not exceed the value of work in place and Stored Materials as supported by invoices and other supporting documentation, as reasonably approved by Construction Consultant, less any Retainage), including deposits paid to any Contractor or Trade Contractor, and Soft Costs (including deposits required to be paid pursuant to any agreement covering Soft Costs)) and Interest and Carry Costs to be paid from the proceeds of the requested Additional Advance. No Additional Advance with respect to the payment of any Advance Item constituting Approved Project Expenditure shall be requested or advanced (x) for an amount that, together with the amount of Additional Advance with respect to the payment of all other Advance Items constituting Approved Project Expenditure then being requested hereunder and under the Mortgage Loan Agreement, is less than $150,000 (other than the last requested Additional Advance with respect to such Advance Item if less) or (y) more frequently than once in any each calendar monthmonth (except as otherwise expressly provided in Section 2.10.2). As part of each Draw Request, Borrower shall submit, as notice of its intention to borrow funds, a Borrower's Requisition Letter in the form set forth in SCHEDULE II, which shall be executed by one of the Authorized Representatives. Each Draw Request Borrower's Requisition Letter shall be accompanied by: (i) a Borrower's Requisition Spreadsheet in connection the form set forth in SCHEDULE IV (it being understood, however, that once the guaranteed maximum price shall have been approved by Lender as herein provided, Borrower shall be required to show on such Spreadsheet only a single Budget Line for Hard Costs); (ii) a completed Application and Certificate for Payment (AIA Document G702) attached hereto as SCHEDULE VI that is executed by the Construction Manager and Architect; (iii) a Borrowing Certificate in the form set forth in SCHEDULE VIII; (iv) Payment Receipts in the form set forth in SCHEDULE IX from the Construction Manager and Trade Contractors, evidencing that they have been paid in full for all work performed and/or materials supplied to the date of the preceding advance, except for Retainage provided for in this Agreement; (v) at the request of Agent, current requisitions for payment from Trade Contractors and/or any of their subcontractors allocable to the Improvements; (vi) such other information and documents as may be reasonably requested or required by Agent or the Construction Consultant with an Additional Advance for respect to the payment of Hard Costs covered by such Draw Request; and (vii) invoices, statements or such other information and documentation as Agent shall specify the amount of reasonably request or require with respect to any Retainage previously withheld and which has then become payable Soft Costs covered by Borrower, with supporting documentation describing in reasonable detail the basis for any such disbursementsDraw Request. All Draw Requests such requests and requisitions for payment shall be have been approved by Lender, not to be unreasonably withheld, Borrower and, with respect to Hard Costs, reasonably approved recommended for payment by the Construction Consultant. (b).

Draw Requests. In connection HEB may draw upon the Escrowed Funds on a monthly basis to offset the costs of designing, permitting and constructing the Project. HEB shall prepare all monthly Draw Requests (herein so called) to include (a) a certificate executed by an officer of HEB detailing the Costs incurred by HEB during the payment period (the “Draw Amount”), and (b) invoices or other reasonable backup for the Costs incurred by HEB during the payment period (including a certificate executed by a licensed engineer or architect that (1) shows the percentages and value of work completed on the Project during the payment period, (2) states that all portions of the Project for which payment is requested have been completed in accordance with a request the Plans, and (3) certifies that all labor, materials and other items with respect to that portion of the Project for each Additional Advance, Borrower which payment is requested have been paid in full). HEB shall submit all Draw Requests to Lender the City for review and Construction Consultant a draw request approval. The City will take final action on each Draw Request within five (each5) business days after its receipt of the same, a and, if approved (which approval shall not be unreasonably withheld), deliver the Draw Request to Escrow Agent. If the City reasonably objects to any Draw Request, it will notify HEB and Escrow Agent within five (5) business days after its receipt of the same and will then use good faith, diligent efforts to resolve its objection within three (3) business days after such notification. If the City’s objection is not resolved within eight (8) business days after the City’s initial receipt of the Draw Request, the City shall immediately forward the uncontested portion of the Draw Request to HEB and Escrow Agent as the Draw Amount for payment, and thereafter the City and HEB will work to reach agreement on the disposition of the contested amount. Any fully or partially approved Draw Request forwarded by the City to Escrow Agent shall constitute an “Approved Draw Request”. If the City fails to timely object to, accept, forward or otherwise respond to a Draw Request as herein required, then HEB may immediately deliver such Draw Request to Escrow Agent along with HEB’s true and correct affidavit stating that the City has failed to timely respond to the Draw Request, and such Draw Request and affidavit shall also constitute an Approved Draw Request. Within two (2) substantially days after the date Escrow Agent receives an Approved Draw Request from the City or HEB (HEB’s Approved Draw Request to consist of a Draw Request accompanied by HEB’s true and correct affidavit stating that the City has failed to timely respond such Draw Request in accordance with the terms of this paragraph), Escrow Agent shall disburse the Draw Amount to HEB. Notwithstanding anything to the contrary contained herein regarding the calculation of the City Share, HEB may draw down on the full amount of the Escrowed Funds in the form required pursuant manner herein provided in order to Section 2.1.5(bfacilitate the construction of the Project; provided, however, upon completion and acceptance by the City of the Project, the parties shall (A) not less than ten determine the total Costs, and (10B) Business Days (but not more than sixty (60) days) prior to calculate the applicable Advance Date; provided that there shall be no more than one Draw Request for Approved Project Expenditures and no more than one Draw Request for Interest and Carry Cost in each calendar month. Each Draw Request for Approved Project Expenditures shall specify City’s Share of the Hard Costs (which shall not exceed i.e., the value lesser of work in place and Stored Materials as supported by invoices and other supporting documentation, as reasonably approved by Construction Consultant, less any Retainage57½ % of the Costs or $________), including deposits paid to any Contractor or Trade Contractor, and Soft Costs (including deposits required to be paid pursuant to any agreement covering Soft Costs)) and Interest and Carry Costs to be paid from if the proceeds parties determine that the City’s Share of the requested Additional Advance. No Additional Advance with respect to the payment of any Advance Item constituting Approved Project Expenditure shall be requested or advanced (x) for an amount that, together with the amount of Additional Advance with respect to the payment of all other Advance Items constituting Approved Project Expenditure then being requested hereunder and under the Mortgage Loan Agreement, Costs is less than $150,000 (other than ___________, then HEB shall promptly reimburse the last requested Additional Advance with respect to such Advance Item if less) or (y) more frequently than once in any calendar month. Each Draw Request in connection with an Additional Advance City for the payment difference between $___________ and the City’s Share of Hard Costs shall specify the amount of any Retainage previously withheld and which has then become payable by Borrower, with supporting documentation describing in reasonable detail the basis for any such disbursements. All Draw Requests shall be approved by Lender, not to be unreasonably withheld, and, with respect to Hard Costs, reasonably approved for payment by Construction Consultant. (b).

Draw Requests. In connection Concurrently with a the request for each Additional Advanceany construction Advance under the Loan, Borrower shall submit will furnish to Lender and Construction Consultant a draw request (each, a “completed Draw Request”) substantially in the form Request with all required pursuant to Section 2.1.5(b) not less than ten (10) Business Days (but attachments. Borrower will submit all Draw Requests not more than sixty (60) days) prior to the applicable Advance Date; provided that there shall be no more than one Draw Request for Approved Project Expenditures and no more than one Draw Request for Interest and Carry Cost in each calendar month. Each Draw Request for Approved Project Expenditures shall specify the Hard Costs (which shall not exceed the value of work in place and Stored Materials as supported by invoices and other supporting documentation, as reasonably approved by Construction Consultant, less any Retainage), including deposits paid to any Contractor or Trade Contractor, and Soft Costs (including deposits required to be paid pursuant to any agreement covering Soft Costs)) and Interest and Carry Costs to be paid from the proceeds of the requested Additional Advance. No Additional Advance with respect to the payment of any Advance Item constituting Approved Project Expenditure shall be requested or advanced (x) for an amount that, together with the amount of Additional Advance with respect to the payment of all other Advance Items constituting Approved Project Expenditure then being requested hereunder and under the Mortgage Loan Agreement, is less than $150,000 (other than the last requested Additional Advance with respect to such Advance Item if less) or (y) more frequently than once in any calendar Calendar Month, unless Lender in its sole discretion approves a more frequent disbursement period (e.g., twice per month). Each Lender may charge an inspection fee for each Draw Request in connection with an Additional Advance for not to exceed the payment of Hard Costs shall specify the amount lesser of any Retainage previously withheld fees of the Special Engineer for such service or $750 per request. Within ten days of receipt of the Draw Request (so long as the Draw Request has been timely received, is complete, and all other applicable conditions have been satisfied), Lender agrees to make the requested Advance, subject to the terms and conditions of this Agreement. Borrower shall supply to Lender with each Draw Request receipted invoices or bills of sale and unconditional partial releases and waivers of liens from each materials dealer, supplier, laborer, and subcontractor who has done work or furnished materials use of equipment, or other matters which has then become payable could give rise to any lien on the Property or any part of it, or on any Collateral, for construction of the Project covered by Borrower, with supporting documentation describing in reasonable detail the basis for any such disbursements. All most recent Draw Requests shall be approved by Lender, not to be unreasonably withheld, and, Request with respect to Hard Costswhich Lender has made Advances and conditional releases and waivers of liens by all such persons relating to matters covered by the current pending Draw Request (See Section 4.3). The lien waivers must be in a form acceptable to Lender. Upon the request of Lender (in Lender’s discretion), Borrower agrees to make available to Lender prior to the making of any requested Advance: (i) a list of the names and addresses of all materials dealers, laborers, and subcontractors with whom written agreements have been made by Borrower or who have supplied any labor, materials, use of equipment on the Project or any matter which could give rise to a lien on the Property or any part of it or an any Collateral; (ii) evidence that any required inspection by any governmental authority has been satisfactorily completed; and (iii) all other invoices, bills and statements as may be reasonably approved for payment required by Construction Consultant. (b)Lender to substantiate the amount requested and the appropriateness of the advance.

Draw Requests. In connection with Whenever Borrower desires to obtain an Advance or a request for each Additional Advancedisbursement of Construction Equity Deposits, Borrower shall submit a signed Draw Request to Lender Bank, the Funding Lender, Project Inspector and Construction Consultant a draw request (each, a “Title Company. Draw Request”) substantially in the form required pursuant to Section 2.1.5(b) not less than Requests shall be submitted at least ten (10) Business Days (but not more than sixty (60) days) prior to the applicable Advance Date; provided that there date on which the requested disbursement is to be made. Draw Requests shall be submitted no more than one Draw Request for Approved Project Expenditures and no more than one Draw Request for Interest and Carry Cost in once each calendar month. Each Draw Request for Approved Borrower shall also simultaneously submit to Bank, Project Expenditures shall specify Inspector and Title Company the Hard Costs (which shall not exceed items required pursuant to Section 4.7 of the value of work in place and Stored Materials as supported by invoices and other supporting documentation, as reasonably approved by Construction Consultant, less any Retainage), including deposits paid to any Contractor or Trade ContractorLoan Agreement, and Soft Costs submit to the Funding Lender any items required pursuant to the Funding Lender’s Loan Documents. With respect to each Advance, Title Company shall perform a search of the appropriate records and, within five (including deposits required 5) Business Days after receiving the foregoing items, shall give Bank and the Funding Lender notice by telephone or in writing if any intervening liens are disclosed (other than those expressly listed in the Bank’s Title Policy). If any such intervening liens or other matters are discovered by Title Company, which in the Funding Lender’s or Bank’s sole judgment jeopardize their respective interests in the Project, Title Company shall refrain from making further disbursements until Bank and the Funding Lender notify Title Company that such intervening liens or other matters have been waived by Bank and the Funding Lender or satisfied. Upon demand of Bank or the Funding Lender, Borrower shall immediately cause any such liens or other matters to be paid pursuant to any agreement covering Soft Costs)) and Interest and Carry Costs to be paid from the proceeds satisfied of the requested Additional Advance. No Additional Advance record or bonded over, or shall deposit cash or make other arrangements with respect to the payment of any Advance Item constituting Approved Project Expenditure discharge thereof satisfactory to Bank and the Funding Lender. With respect to each Advance, if Bank and the Funding Lender have approved the Draw Request (which approval shall be conditioned among other things upon all of the terms and conditions of Bank’s and the Funding Lender’s Loan Documents and this Agreement being complied with), then, on the date the Advance is requested or advanced (x) for an amount thatto be made, together with the Funding Lender will advance directly to Title Company the principal amount of Additional the requested Advance less (a) the retainage required under the Construction Contract and the Funding Lender’s Loan Documents (unless such retainage is already accounted for in the Draw Request), and (b) amounts payable to and advanced by the Funding Lender to itself. Title Company shall, as promptly as possible thereafter, if all of the conditions of this Agreement have been complied with respect in a manner satisfactory to Title Company, and if Title Company has not received notice from Bank or the Funding Lender that a Default or an Event of Default exists under Bank’s or the Funding Lender’s Loan Documents, make a disbursement of the proceeds so received by delivering to General Contractor, or, at Title Company’s, Bank’s or the Funding Lender’s option, to the payment subcontractors and other parties entitled to receive any of all other Advance Items constituting Approved Project Expenditure then being requested hereunder and under such proceeds, by check or wire transfer, the Mortgage Loan Agreementamounts set forth in the Draw Request. Notwithstanding anything in this Agreement to the contrary, is less than $150,000 (other than the last requested Additional Advance with respect Subordinate Lender shall not have the right to such Advance Item if less) approve or (y) more frequently than once in any calendar month. Each Draw Request in connection with an Additional Advance for disapprove Advances of the payment of Hard Costs shall specify the amount of any Retainage previously withheld and which has then become payable by Borrower, with supporting documentation describing in reasonable detail the basis for any such disbursements. All Draw Requests shall be approved by Lender, not to be unreasonably withheld, and, with respect to Hard Costs, reasonably approved for payment by Construction Consultant. (b)Senior Loan.

Draw Requests. In connection with Before Lender becomes obligated to make any disbursement, it must receive a written request for each Additional Advancesigned by Borrower using the form attached hereto as EXHIBIT Q ("DRAW REQUEST"), Borrower which Draw Request shall submit be sent to Lender at the address set forth in Section 8.3 hereof, accompanied by such documentation and Construction Consultant a draw request information set forth in Sections 2.1(a) and (eachb) above, a “and Section 2.1(c) in the case of the final disbursement, or as otherwise requested by Lender. All such documentation and information must be acceptable in form and substance to Lender in the exercise of its reasonable judgment. In the event the Draw Request is so approved, Lender shall disburse directly to Borrower (or directly to General Contractor if Borrower so requests) such Loan funds equal to (a) the sum due pursuant to the Draw Request”) substantially , to the extent that such sum is in the form required pursuant to Section 2.1.5(bBudget (or a modification thereof which is approved in writing by Lender, in accordance with the reasonability standard set forth above), less (b) not less than ten percent (10%) Business Days (but not more than sixty (60) days) prior thereof to the applicable Advance Date; provided that there be retained by Lender until final payment shall be no more than one Draw Request for Approved Project Expenditures due and no more than one Draw Request for Interest and Carry Cost in each calendar month. Each Draw Request for Approved Project Expenditures shall specify the Hard Costs owing, provided, however, that subsequent to completion of fifty percent (which shall not exceed 50%) of the value of work the Improvements, if in place Lender's and Stored Materials as supported by invoices Borrower's judgement, the Improvements are satisfactorily progressing and other supporting documentationsuch progress continues, as reasonably approved by Construction Consultantthe future retainage shall be reduced to five percent (5%); provided, less however that if at any Retainagetime thereafter, in Lender's reasonable judgment, the Improvements are no longer satisfactorily progressing, the retainage will, from and after the next disbursement after notice thereof from Lender setting forth the reasons for its determination, unless satisfactory progress is subsequently restored, be ten percent (10%); provided, however, that if a Draw Request shall have been submitted prior to Borrower's receipt of such notice, then the increase in retainage will be postponed until the following disbursement. Notwithstanding the foregoing, if such disbursement would cause the total amount disbursed under the Loan, including deposits paid accrued interest thereon, to any Contractor or Trade Contractorexceed the Maximum Loan Amount, and Soft Costs (including deposits required to be paid pursuant to any agreement covering Soft Costs)) and Interest and Carry Costs to be paid from the proceeds of the requested Additional Advance. No Additional Advance with respect to the payment of any Advance Item constituting Approved Project Expenditure Lender shall be requested or advanced (x) for an only disburse such amount that, together with when added to the total amount of Additional Advance with respect the Loan previously disbursed and all interest accrued but unpaid, will increase the Loan balance to equal the payment Maximum Loan Amount. Despite any other provisions of all this or any other Advance Items constituting Approved Project Expenditure then being requested hereunder and under the Mortgage Loan AgreementDocuments, is less than $150,000 (other than the last requested Additional Advance with respect Borrower may submit Draw Requests to such Advance Item if less) or (y) Lender no more frequently than once each month, unless Lender has given its prior written consent in any calendar month. Each Draw Request in connection with an Additional Advance for the payment of Hard Costs shall specify the amount of any Retainage previously withheld and which has then become payable by Borrower, with supporting documentation describing in reasonable detail the basis for any such disbursements. All Draw Requests shall be approved by Lender, not to be unreasonably withheld, and, with respect to Hard Costs, reasonably approved for payment by Construction Consultant. (b)each instance.

Draw Requests. In Prior to making any payment to the Contractor or to any other third party manufacturer, vendor, supplier, or governmental authority or utility retained by Landlord, for any other amount to be incurred by Landlord in connection with the construction of the Tenant Improvements (each, a "Progress Payment"), (a) Tenant's Representative shall have received complete copies of all of the fully-executed subcontracts and material supplier contracts that are not included in the Construction Contract, as previously approved by Tenant in accordance with Section 4.3.2 of this Tenant Work Letter, for all of the Landlord's Agents (as hereinafter defined) included as payees in the applicable Draw Request (as hereinafter defined), each of which shall be in the form approved by Tenant in advance in accordance with this Tenant Work Letter, and copies of all fully-executed Tenant Change Orders (as hereinafter defined) associated therewith, if any (which shall cover all work for which Landlord seeks to make payment pursuant to the applicable Draw Request, provided that each contract and Change Order need be submitted only once for each such payee), and (b) Tenant’s Representative shall have received and approved the Landlord's written request for each Additional Advance, Borrower shall submit to Lender and Construction Consultant a draw request approval of the proposed Progress Payment amount (each, a “Draw Request”), which Draw Request shall include the following items: (i) substantially a request for payment of the Contractor in the a form required pursuant to Section 2.1.5(b) not less than ten (10) Business Days (but not more than sixty (60) days) prior similar to the applicable Advance DateAIA G702 payment application request, showing the schedule, by trade, of percentage of completion of the Tenant Improvements, and detailing the portion of Tenant Improvements completed and the portion not completed as of the date of such Draw Request; provided that there shall be no more than one Draw Request (ii) invoices from all other "Landlord's Agents" as defined below, for Approved Project Expenditures labor rendered and no more than one Draw Request for Interest and Carry Cost in each calendar month. Each Draw Request for Approved Project Expenditures shall specify materials delivered to the Hard Costs Premises; (iii) executed mechanic's lien releases from all of Landlord's Agents which shall not exceed comply with the value of work in place and Stored Materials as supported by invoices and other supporting documentationappropriate provisions, as reasonably determined by Landlord, of California Civil Code Sections 8132, 8134, 8136 and 8138 (with unconditional lien waivers from all of the Landlord's Agents for whom payments were requested pursuant to the previous Draw Request in the amounts reasonably approved by Construction ConsultantTenant for payment to such Landlord's Agents pursuant thereto, less as such amount may be reduced by a retention not to exceed ten percent (10%) of the amount reasonably approved by Tenant for payment); and (iv) a certificate from the Architect certifying the requisite percentage of completion of such work has been completed. Notwithstanding the foregoing, if Landlord has paid any Retainage), including deposits paid portion of the Tenant Improvement Allowance to any Contractor or Trade Contractorof the Landlord's Agents, and Soft Costs (including deposits required to be paid but pursuant to any agreement covering Soft Costs)) unresolved dispute between Landlord and Interest and Carry Costs such Landlord's Agent, such Landlord's Agent shall fail to be deliver an unconditional lien waiver, then as long as Landlord provides reasonably satisfactory evidence to Tenant's Representative that the amount included in such unconditional lien waiver has been paid from to such Landlord's Agent, then Tenant's Representative shall not withhold approval of any ensuing Draw Request on the proceeds basis of such missing unconditional lien waiver otherwise satisfying the foregoing requirements; provided, however, that the foregoing shall not make Tenant liable for any disputed amount in excess of the requested Additional Advance. No Additional Advance with respect to the amount approved by Tenant for payment of any Advance Item constituting Approved Project Expenditure shall be requested or advanced (x) for an amount that, together in accordance with the amount of Additional Advance with respect to the payment of all other Advance Items constituting Approved Project Expenditure then being requested hereunder and under the Mortgage Loan Agreement, is less than $150,000 (other than the last requested Additional Advance with respect to such Advance Item if less) or (y) more frequently than once in any calendar month. Each Draw Request submitted by landlord in connection with an Additional Advance for the payment of Hard Costs shall specify the amount of any Retainage previously withheld such disputed amount. The Contractor and which has then become payable all subcontractors and, laborers used by Borrower, Landlord in connection with supporting documentation describing in reasonable detail the basis for any such disbursements. All Draw Requests Tenant Improvements shall be approved known collectively as "Landlord's Agents." All contracts entered into by LenderLandlord with Landlord's Agents ("Landlord Agent Contracts") shall be subject to Tenant's reasonable approval, provided, however, unless an approval process is otherwise expressly set forth in the Tenant Work Letter, Tenant shall respond to any request for Tenant approval to any Landlord Agent Contract in a timely manner so as not to be unreasonably withheld, and, with respect to Hard Costs, reasonably approved for payment by Construction Consultant. (b)delay the Project Schedule.