Procedure for Advances. (a) Each Advance shall be made pursuant to (i) a Draw Request with respect to Construction Project Loans, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which shall be submitted by Borrower to Lender and to the Inspecting Architect. With respect to each Development Project, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower shall be entitled to make unlimited Draw Requests during any thirty (30) day period. (b) Borrower shall deliver to Lender an updated Borrowing Base Certificate on the first (1st) day of each month. Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance with respect to each Construction Project Loan. (c) On each Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower to the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if any), and shall bear interest at the rates provided herein from the date so advanced. (d) Lender may take such steps as it may deem appropriate, at its option, to verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any such verification or to so vary said procedures. (e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such funds. (f) At the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date.
Appears in 2 contracts
Samples: Revolving Construction and Development Loan Agreement (Lundgren Bros Construction Inc), Revolving Construction and Development Loan Agreement (Lundgren Bros Construction Inc)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made pursuant on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (i) who will provide each Lender with a Draw Request copy promptly upon receipt thereof), with respect a copy to Construction Project Loansthe Trustee and the Collateral Custodian, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be submitted deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower to by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Inspecting Architect. With respect to each Development ProjectTrustee and the Collateral Custodian, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be entitled deemed to make unlimited Draw Requests during any thirty have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (30New York City time) day period.
(b) Borrower on such Business Day and if not delivered by such time, shall deliver be deemed to Lender an updated Borrowing Base Certificate have been received on the first (1st) day of each monthfollowing Business Day. The Borrower or Servicer shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance post all Loan Agreements and other loan documents and information with respect to each Construction Project Loanproposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) On each Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower to the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All The Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if any), and shall bear interest at the rates provided herein from the date so advancedYield Rate.
(d) Lender may take such steps as it may deem appropriateSubject to Section 2.18 and the other terms, at its optionconditions, to verify provisions and limitations set forth herein (including, without limitation, the application of Project Loan proceeds to Costs payment of the related ProjectCommitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status end of the Mortgage covering Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly Restatement Date and prior to the General Contractors and/or subcontractors, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any such verification or to so vary said proceduresFacility Maturity Date.
(e) In Determinations by any Lender of the event that existence of any Eurodollar Disruption Event with respect to such Lender shall determine, in its reasonable judgment, that proper documentation (any such determination to support a given Advance, as required be communicated to the Borrower by this Agreement, has not been furnished, it may withhold payment written notice from the Agent promptly after the Agent learns of such Advanceevent), or of such portion the effect of such Advance as any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such fundsconclusive absent manifest error.
(f) At Notwithstanding anything to the time contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Advance, there shall exist no default or event Lender to remit its Pro Rata Share of default hereunder, and all representations and warranties made herein any Advance shall be true and correct on and as several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance Date with the same effect as if made on that daterequested hereunder.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp)
Procedure for Advances. (a) Each Advance shall be made pursuant to (i) Promptly upon receipt of a Draw Request from Borrower, Agent shall deliver written notice to each Lender at the address specified by each Lender from time to time which notice shall include the Borrowing Date and such Xxxxxx’s Ratable Share of such Advance. Agent shall include with respect such notice a copy of the Draw Request, to Construction Project Loans, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which shall be submitted by Borrower to Lender the extent not previously delivered and to the Inspecting Architect. With respect extent in Agent’s possession, and Agent shall promptly deliver to each Development ProjectLender all items in respect of such Advance received by Agent after the date of such notice. Lenders shall make the requested Advance on the Borrowing Date so long as all conditions to such Advance are satisfied or waived. Unless otherwise notified by Agent, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect each Lender may assume that all conditions to Construction Projects, Borrower shall be entitled to make unlimited Draw Requests during any thirty (30) day periodsuch Advance are satisfied or waived on the Borrowing Date.
(b) Borrower shall deliver to Lender an updated Borrowing Base Certificate Not later than 11:00 a.m. New York City time, on the first (1st) Borrowing Date, each Lender shall make available for the account of Agent at its address referred to in Section 9.02, in same day funds, such Lender’s Ratable portion of each monthsuch Advance. After Agent’s receipt of such funds and upon fulfillment of the applicable conditions in Article II, Agent will make such funds available to Borrower shall also deliver to Lender a revised Borrowing Base Certificate in accordance with each request for an Advance with respect to each Construction Project Loanthe terms of this Section 2.11.
(c) On each Advance Date, if all the terms and conditions of this Agreement Unless Agent shall have been complied with by Borrower received notice from a Lender prior to the satisfaction Borrowing Date that such Lender will not make available to Agent such Xxxxxx’s Ratable portion of Lendersuch Advance, if no default or event of default exists hereunder, and if Agent may assume that such Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance made such portion available to Borrower Agent on the principal amount of each requested Advance by wire transfer of funds for the amount set forth Borrowing Date in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if anyaccordance with Section 2.11(b), and shall bear interest at Agent may, in reliance upon such assumption, make available to Borrower on the rates provided herein from the date so advanced.Borrowing Date
(d) Lender may take such steps as it may deem appropriate, at its option, to verify If the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any such verification or to so vary said procedures.
(e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by this Agreement, Defaulting Xxxxxx’s default has not been furnishedcured, it may withhold payment Lenders, in the sole discretion of Agent, shall have the right to make no further Advances under the Loan and the Loan Amount shall be permanently reduced by any and all Deficiencies unless and until a substitute lender that is an Eligible Assignee, reasonably acceptable to Lenders, other than the Defaulting Lender(s), pays such AdvanceDeficiency(ies) to the Agent who shall distribute same to Borrower or Agent, or of such portion of such Advance as shall not be so supported by proper documentationapplicable, and shall promptly notify Borrower assumes the obligations of the discrepancy Defaulting Lender to fund its Ratable Share of the balance of the Loan subject to and in or omission of such documentation. Until such time as such discrepancy or omission is corrected to accordance with this Agreement and the satisfaction of Lender, it may withhold such fundsother Loan Documents.
(f) At the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date.
Appears in 1 contract
Samples: Loan and Security Agreement (AB Commercial Real Estate Private Debt Fund, LLC)
Procedure for Advances. (a) The Administrative Agent will make advances from time to time upon receipt of written request from the Borrowers in the form designated by the Administrative Agent, provided that after giving effect to the Borrowers' request, the outstanding principal balance of the Loan would not exceed the lesser of the Credit Facility Committed Amount or the Borrowing Base minus the aggregate face amounts of all Letters of Credit outstanding. Each Advance advance under the Loan shall be made pursuant to (i) a Draw Request with respect to Construction Project Loansin an amount of not less than $1,000,000, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which in increments of $250,000 in excess thereof. Advances or the renewal of a Interest Period shall be submitted requested by Borrower to Lender and the Borrowers orally or in writing by 10:00 A.M. (Eastern Time) three (3) Banking Days prior to the Inspecting ArchitectBanking Day on which the funds will be advanced. With respect to each Development Project, Borrower The Borrowers shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day periodadvise the Administrative Agent at the time of such notice which Interest Period they are selecting or whether they are selecting the Base Rate. With respect to Construction Projects, Borrower The Administrative Agent shall be entitled have no obligation to make unlimited Draw Requests during any thirty (30) day periodadvance if at the time such advance is requested and/or is proposed to be funded, there exists an Event of Default or an event which upon notice or lapse of time or both would constitute an Event of Default under the Financing Documents.
(b) Borrower shall deliver In addition, if the Administrative Agent has reason to Lender believe a Default or an updated Borrowing Base Certificate Event of Default has occurred, the Borrowers hereby irrevocably authorize the Lenders to make advances of the Loan at any time and from time to time, without further request from or notice to the Borrowers, which the Lenders, in their sole and absolute discretion, deem necessary or appropriate to protect the Lenders' interests under this Agreement or otherwise, including, without limitation, advances of the Loan made to cover interest on the first (1st) day of each month. Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance with respect to each Construction Project Loan.
(c) On each Advance Date, if all fees, and/or Enforcement Costs, prior to, on, or after the terms and conditions termination of this Agreement have been complied with by Borrower to Agreement, regardless of whether the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available aggregate amount of the Revolving Loan and advances of the Project Loan for which the related Project (if any), and Lenders may make hereunder exceeds the Credit Facility Committed Amount. The Lenders shall bear interest at the rates provided herein from the date so advanced.
(d) Lender may take such steps as it may deem appropriate, at its option, have no obligation whatsoever to verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, make any advance under this subsection and the amount making of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender one or more advances under this subsection shall not obligate the Lenders to make other similar advances. Any such advances will be obligated to conduct any such verification or to so vary said proceduresevidenced by the Note secured by the Collateral and the Deeds of Trust.
(e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such funds.
(f) At the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date.
Appears in 1 contract
Samples: Financing and Security Agreement (Sunrise Assisted Living Inc)
Procedure for Advances. (a) A. At the time of each Advance, there shall exist no default or Event of Default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date. Each Advance (other than under a Swing Loan) shall be made pursuant to (i) a Draw Request with respect to Construction Project Loans, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which shall be submitted by Borrower to Agent on behalf of the Lenders. Each Advance under a Swing Loan shall be made pursuant to a Swing Loan Draw Request submitted by Borrower to Agent and Swing Lender and to the Inspecting Architect. (if a party other than Agent).
B. With respect to each Development Project, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower shall be entitled to make unlimited Draw Requests during any thirty (30) day period.Request:
(bI) Not later than 10:00 A.M. (Central time) three (3) Euro Business Days prior to the Advance Date if any portion of the requested Advance is desired by Borrower to be a LIBOR Rate Advance, and one Business Day prior to the Advance Date if any portion of the requested Advance is to be a Loan Rate Advance, Borrower shall deliver to Lender an updated Borrowing Base Certificate on Agent a request, in writing, designating the first amount of such portion (1stin the minimum amount of $1,000,000.00 and in integral multiples of $100,000.00 in excess thereof) day of each monthand designating the initial LIBOR Rate Period applicable thereto. If no such request is made by Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance with respect to each Construction Project Loanany Advance, the entire Advance shall be deemed to be a Loan Rate Advance.
(cII) On each Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower Borrower, to the satisfaction of LenderAgent, if no default or event Event of default Default exists hereunder, and if Lender Agent has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a the Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower Agent its Commitment Percentage of the principal amount of each the requested Advance by delivering to Agent a wire transfer of funds for funds. Agent shall then forward the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed Advance to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself)Borrower. All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if any)Commitment, and shall bear interest at the rates provided herein from the date so advanced.
C. With respect to each Swing Loan Draw Request, Borrower shall deliver any such request no later than 10:00 A.M. (dCentral time) Lender may take on the requested Advance Date. On each such steps as it may deem appropriateAdvance Date, at its optionif all the terms and conditions of this Agreement have been complied with by Borrower, to verify the application satisfaction of Project Agent and Swing Lender (if a party other than Agent), if no default or Event of Default exists hereunder, and if Agent and Swing Lender (if a party other than Agent) have approved the Swing Loan proceeds Draw Request, the Swing Lender shall advance to Costs Agent the amount of the related Projectapproved Advance. Agent shall then forward the Advance to Borrower. All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Swing Loan Commitment, and to vary shall bear interest at the advancement procedures rates provided herein set forth if from the same becomes necessary or desirable to assure date so advanced.
D. Each Lender shall also have the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto includingright, but not limited tothe obligation, making Advances directly so long as an Event of Default exists hereunder, to advance to Agent the proceeds of any Advance for application to the General Contractors and/or subcontractorssatisfaction of any of Borrower’s Obligations. Any Advance by a Lender for such purpose shall be part of the Loan and shall be evidenced and secured by the Loan Documents from the date made. Borrower hereby authorizes each Lender, so long as an Event of Default exists hereunder, to hold, use, advance and apply Loan proceeds for the amount payment or performance of Advances to be made any obligation of Borrower hereunder, including but not limited to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated obligation to conduct any such verification or to so vary said procedurespay interest on the Loan.
(e) E. In the event that Agent (and/or the Swing Lender (if a party other than Agent) in the case of a Swing Loan Request) shall determine, in its reasonable sole judgment, that proper documentation to support a given requested Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of such Agent (and/or the Swing Lender, as applicable), it may withhold such funds.
(f) At F. Borrower shall provide notice to Agent in the Draw Request of the proposed use of the requested Advance. If Borrower anticipates using the Advance for purposes of financing construction on a Real Estate Asset Under Development, Borrower shall provide evidence to Agent at the time of each Advancesuch Draw Request that Borrower or an Approved Subsidiary has entered into leases for not less than fifty percent (50%) of the rentable square footage of such Real Estate Asset Under Development (which leases must be on arms-length terms and conditions if with an affiliate of Borrower). If Borrower fails to provide the foregoing evidence, there Agent shall exist have no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each obligation to make the requested Advance Date with the same effect as if made on that datefor such construction.
Appears in 1 contract
Procedure for Advances. (a) Each Advance shall be made pursuant to (i) a Draw Request with respect to Construction Project LoansNotice of Revolving Loan Borrowing, and (ii) an Application and Certificate for Payment with respect to Development Project LoansRevolving Loan Note, which shall be submitted by Borrower to Lender and to Etc. Within the Inspecting Architect. With respect to each Development Project, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower shall be entitled to make unlimited Draw Requests during any thirty (30) day period.
(b) Borrower shall deliver to Lender an updated limits of the Revolving Loan Borrowing Base Certificate on and the first (1st) day Revolving Loan Term, so long as Borrower is in compliance with all of each month. Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance with respect to each Construction Project Loan.
(c) On each Advance Date, if all the terms and conditions of this Agreement have been complied with and no Defaulting Event has occurred, Borrower may request borrowings and may repay and request reborrowings of Revolving Loans. Whenever Borrower desires an advance, Borrower shall notify Lender (which notice shall be irrevocable) by telecopy or telephone of the proposed borrowing. Such notice (each, a "Notice of Revolving Loan Borrowing") shall be accompanied by a borrowing base certificate (in a form acceptable to Lender), specify the date of the proposed borrowing and the amount proposed to be borrowed. Each Notice of Revolving Loan Borrowing must be received by Lender no later than 11:00 a.m., Hartford, Connecticut time on the day such borrowing is requested. In addition to this Agreement, the Revolving Loans shall be evidenced by a Second Amended and Restated Revolving Loan Note payable to Lender in the form of Exhibit A attached hereto (the "Revolving Loan --------- Note"), which Revolving Loan Note shall amend and restate the Existing Revolving Loan Note. Insofar as Borrower may request and Lender shall make Revolving Loans hereunder, Lender shall enter such advances as debits on a revolving loan account maintained by Borrower with Lender (the "Revolving Loan Account"). Lender may also record to the satisfaction of LenderRevolving Loan Account, if no default or event of default exists hereunderin accordance with customary accounting practices and procedures, and if Lender has approved (i) each Draw Request all fees, accrued and unpaid interest, late fees, usual and customary charges for each Construction Project for the maintenance and administration of checking and any other accounts maintained by Borrower with Lender, and other fees and charges which are properly chargeable to Borrower has submitted a Draw Requestunder this Agreement, (ii) all payments, subject to collection, made by or account of indebtedness evidenced by the Revolving Loan Account, (iii) all proceeds of Collateral which are finally paid to Lender in its own office in cash or collected items, and (iiiv) each Application other appropriate debits and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Paymentcredits, Lender shall advance to Borrower the principal amount including without limitation, payments of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if any), and shall bear interest at the rates provided herein from the date so advanceddue hereunder.
(d) Lender may take such steps as it may deem appropriate, at its option, to verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any such verification or to so vary said procedures.
(e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such funds.
(f) At the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made pursuant on at least two Business Days’ irrevocable written notice from the Borrower to the Agent (i) who will provide each Lender with a Draw Request copy promptly upon receipt thereof), with respect a copy to Construction Project Loansthe Trustee and the Collateral Custodian, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be submitted deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower to by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Inspecting Architect. With respect to each Development ProjectTrustee and the Collateral Custodian, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be entitled deemed to make unlimited Draw Requests during any thirty have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (30New York City time) day period.
(b) Borrower on such Business Day and if not delivered by such time, shall deliver be deemed to Lender an updated Borrowing Base Certificate have been received on the first (1st) day of each monthfollowing Business Day. The Borrower or Servicer shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance post all Loan Agreements and other loan documents and information with respect to each Construction Project Loan.proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing. USActive 52762757.1552762757.22 53
(c) On each Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower to the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All The Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if any), and shall bear interest at the rates provided herein from the date so advancedYield Rate.
(d) Lender may take such steps as it may deem appropriateSubject to Section 2.18 and the other terms, at its optionconditions, to verify provisions and limitations set forth herein (including, without limitation, the application of Project Loan proceeds to Costs payment of the related ProjectCommitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status end of the Mortgage covering Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly Restatement Date and prior to the General Contractors and/or subcontractors, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any such verification or to so vary said proceduresFacility Maturity Date.
(e) In Determinations by any Lender of the event that existence of any Eurodollar Disruption Event with respect to such Lender shall determine, in its reasonable judgment, that proper documentation (any such determination to support a given Advance, as required be communicated to the Borrower by this Agreement, has not been furnished, it may withhold payment written notice from the Agent promptly after the Agent learns of such Advanceevent), or of such portion the effect of such Advance as any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such fundsconclusive absent manifest error.
(f) At Notwithstanding anything to the time contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Advance, there shall exist no default or event Lender to remit its Pro Rata Share of default hereunder, and all representations and warranties made herein any Advance shall be true and correct on and as several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance Date with the same effect as if made on that daterequested hereunder.
Appears in 1 contract
Procedure for Advances. (a) Each Advance Subject to the terms and conditions hereof, Lender shall make Advances of each Non-Revolving Loan to a Corporate Checking Account maintained by Borrower at Lender's Affiliate, from time to time, for payment of construction costs of the Improvements, as such construction occurs as determined by the Inspector. Advances shall be made pursuant upon request of Borrower in the following manner for each Project:
7.6.1 Not less than ten (10) Business Days before the date on which Borrower desires an Advance, Borrower shall submit to Lender a request for an Advance using AIA Forms G702 and G703, including any change orders, invoices for soft costs, and other documents required hereunder, accompanied by a cost breakdown, the accuracy of which shall be certified by Borrower and approved in writing by the Project Architect or the county engineer in the county in which the Project is located. Lender's "Hard and Soft Cost Requisition Form" form shall serve as the disbursement control for each line item. Lender shall not be required to make an Advance for any line item in excess of the amount shown in the "Loan Reserve Category" set forth in such "Hard and Soft Cost Requisition Form" form;
7.6.2 Requests for Advances after the first Advance shall not be made more often than once a month and the total amount advanced shall not at any time exceed an amount equal to (i) a Draw Request with respect to Construction Project Loansthe percentage of completion evidenced by the inspections of the Improvements by the Inspector, and times (ii) the estimated total construction costs filed by Borrower and General Contractor and approved by Lender, (minus the Retainage, as set forth in this ----- Section, and any Advances previously made on account of the cost of materials stored on the Property). Prior to each Advance, at Borrower's expense, an Application appointed inspector shall inspect the Improvements to verify that the request for an Advance accurately reflects the amount of construction completed to date. Notwithstanding the foregoing, Lender shall withhold the Retainage, provided that when the Project is 50% complete as certified by the Inspector for the Project and Certificate provided no Event of Default has occurred and is continuing after the giving of any applicable Notice and the lapse of any applicable cure periods, the Retainage will be reduced to the greater of the retainage rate specified in the General Contractor's contract or five percent (5%). The Retainage shall be held until Completion, provided, however, that if: (i) no Event of Default has occurred and is continuing after the giving of any applicable notice and the lapse of any applicable cure periods, (ii) Lender receives certification from the Inspector that all such work is complete; and (iii) Lender receives appropriate lien waivers, the Retainage for Payment with respect up to Development Project Loansthree trades (selected by Borrower and approved by Lender, which approval will not be unreasonably withheld) will be released upon full completion of all work on the Project for each particular trade selected;
7.6.3 Borrower shall be submitted by Borrower to furnish Lender and the Title Company with any evidence, lien waivers, or affidavits required by the Title Company at the time of each request for an Advance to insure that all bills then due and payable for labor and materials used in constructing the Inspecting ArchitectImprovements and all bills due and payable to contractors, subcontractors, laborers, and materialmen have been paid in full, except those bills to be paid with such Advance. With respect each request for an Advance to each Development Projectbe used for contract payments of at least $50,000, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower shall be entitled to make unlimited Draw Requests during any thirty (30) day period.
(b) Borrower shall deliver to Lender an updated Borrowing Base Certificate on and the first (1st) day Title Company waivers of liens from contractors in the respective sum received by each month. Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request such contractor for an Advance with respect to each Construction Project Loanall of Borrower's preceding requests for Advances.
(c) On each Advance Date7.6.4 Borrower will have the right to reallocate line items in the Budget, if all the terms and conditions of this Agreement have been complied with by Borrower subject to the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved following: (i) each Draw Request proper substantiation for each Construction Project for which Borrower has submitted a Draw Requestadjustments is delivered to Lender, and (ii) each Application no adjustments may be made between hard and Certificate for Payment for each Development Project for soft costs until after Completion of the Project, at which Borrower has submitted an Application and Certificate for Paymenttime savings in hard cost line items may be reallocated to soft cost line items, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made iii) no adjustments shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if any), and shall bear interest at the rates provided herein from the date so advanced.
(d) Lender may take such steps as it may deem appropriate, at its option, to verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly permitted to the General Contractors and/or subcontractors, equity or interest reserve line items; and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct (iv) any such verification or to so vary said procedures.
(e) In the event that Lender shall determine, reallocation must involve at least $10,000 in its reasonable judgment, that proper documentation to support a given Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such funds.
(f) At the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date.total adjustments;
Appears in 1 contract
Samples: Line of Credit Agreement (Grand Court Lifestyles Inc)
Procedure for Advances. (a) Each Advance shall be made pursuant to (i) a Draw Request with respect to Construction Project Loans, and or (ii) an Application and Certificate for Payment with respect to Development Project Loans, both of which shall be submitted by Borrower to Lender and to the Inspecting Architect. With respect to each Development Project, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower shall be entitled to make unlimited not submit more than two (2) Draw Requests during any thirty (30) day period.
(b) Borrower shall deliver to Lender an updated Borrowing Base Certificate on the first (1st) day of each month. Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance with respect to each Construction Project Loan.
(c) On each Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower to the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, and all Construction Project Loan Advances shall reduce the available amount of the Revolving Loan and of the Construction Project Loan for the related Project (if any), and shall bear interest at the rates provided herein from the date so advanced.
(d) Lender may take such steps as it may deem appropriate, at its option, to verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any such verification or to so vary said procedures.
(e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such funds.
(f) At the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date.
Appears in 1 contract
Samples: Revolving Construction and Development Loan Agreement (Lundgren Bros Construction Inc)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made pursuant byon at least one Business Day’s irrevocable written notice from the Borrower to (i) the Administrative Agent and each Lender Agent, with a Draw Request with respect copy to Construction Project Loansthe Collateral Agent and the Collateral Custodian, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be submitted deemed to have been received by the Administrative Agent and each Lender Agent on a Business Day if delivered no later than 2:00 p.m. on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower to by the Administrative Agent and each Lender and Agent, with a copy to the Inspecting Architect. With respect to each Development ProjectCollateral Agent and the Collateral Custodian, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be entitled deemed to make unlimited Draw Requests during any thirty (30) day period.
(b) Borrower have been received by the Administrative Agent and each Lender Agent on a Business Day if delivered no later than 3:00 p.m. on such Business Day and if not delivered by such time, shall deliver be deemed to Lender an updated Borrowing Base Certificate have been received on the first (1st) day following Business Day. The Borrower or the Servicer shall provide electronic copies of each month. Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance all Loan Agreements and other loan documents and information with respect to each Construction Project Loan.
(c) On each Advance Dateproposed Loan Asset, if all any, to a website that the terms Administrative Agent has approved and conditions to which the Administrative Agent and each Lender Agent have access. Each Notice of this Agreement have been complied with by Borrower Borrowing shall include a duly completed Borrowing Base Certificate (updated to the satisfaction of Lender, if no default or event of default exists hereunder, date such Advance is requested and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, giving pro forma effect to the Advance requested and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount use of the Revolving Loan and of the Project Loan for the related Project (if anyproceeds thereof), and shall bear interest at the rates provided herein from the date so advanced.
(d) Lender may take such steps as it may deem appropriate, at its option, to verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any such verification or to so vary said procedures.
(e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such funds.
(f) At the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date.specify:
Appears in 1 contract
Samples: Loan and Servicing Agreement (Business Development Corp of America)
Procedure for Advances. (a) Each Advance shall be made pursuant to (i) a Draw Request with respect to Construction Project LoansNotice of Revolving Loan Borrowing, and (ii) an Application and Certificate for Payment with respect to Development Project LoansRevolving Loan Note, which shall be submitted by Borrower to Lender and to Etc. Within the Inspecting Architect. With respect to each Development Project, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower shall be entitled to make unlimited Draw Requests during any thirty (30) day period.
(b) Borrower shall deliver to Lender an updated limits of the Revolving Loan Borrowing Base Certificate on and the first (1st) day Revolving Loan Term, so long as Borrower is in compliance with all of each month. Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance with respect to each Construction Project Loan.
(c) On each Advance Date, if all the terms and conditions of this Agreement have been complied with and no Defaulting Event has occurred, Borrower may request borrowings and may repay and request reborrowings of Revolving Loans. Whenever Borrower desires an advance, Borrower shall notify Lender (which notice shall be irrevocable) by telecopy or telephone of the proposed borrowing. Such notice (each, a "Notice of Revolving Loan Borrowing") shall be accompanied by a borrowing base certificate (in a form acceptable to Lender), specify the date of the proposed borrowing, the type of borrowing, the amount proposed to be borrowed and, if a LIBOR Rate Loan is being requested, the duration of the Interest Period. Each Notice of Revolving Loan Borrowing must be received by Lender no later than 11:00 a.m., Hartford, Connecticut time on the day such borrowing is requested. In addition to this Agreement, the Revolving Loans shall be evidenced by a Revolving Promissory Note payable to Lender in the form of Exhibit A attached hereto (the "Revolving Loan Note"). Insofar as Borrower may request and Lender shall make Revolving Loans hereunder, Lender shall enter such advances as debits on a revolving loan account maintained by Borrower with Lender (the "Revolving Loan Account"). Lender may also record to the satisfaction of LenderRevolving Loan Account, if no default or event of default exists hereunderin accordance with customary accounting practices and procedures, and if Lender has approved (i) each Draw Request all fees, accrued and unpaid interest, late fees, usual and customary charges for each Construction Project for the maintenance and administration of checking and any other accounts maintained by Borrower with Lender, and other fees and charges which are properly chargeable to Borrower has submitted a Draw Requestunder this Agreement, (ii) all payments, subject to collection, made by or account of indebtedness evidenced by the Revolving Loan Account, (iii) all proceeds of Collateral which are finally paid to Lender in its own office in cash or collected items, and (ii) each Application iv)other appropriate debits and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Paymentcredits, Lender shall advance to Borrower the principal amount including without limitation, payments of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if any), and shall bear interest at the rates provided herein from the date so advanceddue hereunder.
(d) Lender may take such steps as it may deem appropriate, at its option, to verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any such verification or to so vary said procedures.
(e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such funds.
(f) At the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date.
Appears in 1 contract
Samples: Commercial Revolving Loan, Term Loan, Line of Credit and Security Agreement (Memry Corp)
Procedure for Advances. (a) Each Advance Advances may be requested and made from time to time in accordance with the provisions set forth herein. To request an Advance, the Borrower shall be made pursuant to (i) submit a completed Draw Request with respect to Construction Project Loans, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which shall be submitted by Borrower to Lender and accompanied by copies of the invoice(s) (or similar document (such as a lease, contract or other obligation document)) to be paid through the Inspecting ArchitectAdvance. With respect to each Development Project, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower shall be entitled to make unlimited Draw Requests during any thirty (30) day period.
(b) Borrower shall deliver to Lender an updated Borrowing Base Certificate on the first (1st) day of each month. Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance with respect to each Construction Project Loan.
(c) On each Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower to the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved (i) each The Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower specify the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan Advance requested and shall reference the specific invoice(s) (or similar document (such as a lease, contract or other obligation document)) to which the Advance will be applied. In no event shall the Draw Request exceed the remaining available principal balance of the Project Loan for Loan. Together with such additional information as Lender may reasonably require, the related Project (if any)Draw Request shall include a certification that, and shall bear interest at the rates provided herein from as of the date so advanced.
(d) Lender may take such steps as it may deem appropriate, at its option, to verify the application of Project Loan proceeds to Costs of the related Projectrequest, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any such verification or to so vary said procedures.
(e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such funds.
(f) At the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall contained in Article 6 of this Agreement continue to be true and correct correct, no Default or Event of Default has occurred or is continuing hereunder, and the Borrower continues to be in compliance in all respects with all other terms, covenants and conditions contained in the Loan Documents. The Draw Request shall be signed by the Borrower Representative. With the exception of the Draw request for the Initial Advance, each Draw Request shall be submitted to Lender not less than ten (10) Business Days prior to the earliest due date provided in the invoice(s) to which the Advance will be applied. Upon Lender’s review and approval of the Draw Request, Lender (at Lender’s sole discretion) shall make the Advance thereunder either directly to the Borrower by the deposit of funds directly to the Borrower’s Account or by way of direct payment(s) on the Borrower’s behalf to the payee(s) identified in the subject invoice(s). Any charges or fees for late payment of any invoice(s) shall be charged to the account of the Borrower if and as to the extent the late payment resulted from the Borrower’s failure to follow the requirements of each Advance Date with the same effect as if made on that datethis Section 2.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made pursuant on at least onetwo Business DayDays’s irrevocable written notice from the Borrower to the Agent (i) who will provide each Lender with a Draw Request copy promptly upon receipt thereof), with respect a copy to Construction Project Loansthe Trustee and the Collateral Custodian, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be submitted deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower to by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Inspecting Architect. With respect to each Development ProjectTrustee and the Collateral Custodian, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect to Construction Projects, Borrower in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be entitled deemed to make unlimited Draw Requests during any thirty have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (30New York City time) day period.
(b) Borrower on such Business Day and if not delivered by such time, shall deliver be deemed to Lender an updated Borrowing Base Certificate have been received on the first (1st) day of each monthfollowing Business Day. The Borrower or Servicer shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance post all Loan Agreements and other loan documents and information with respect to each Construction Project Loan.
(c) On each Advance Dateproposed Eligible Loan Asset, if all any, to an IntraLinks (or other replacement) website to which the terms and conditions Agent has access. Each Notice of this Agreement have been complied with by Borrower Borrowing shall include a duly completed Borrowing Base Certificate (updated to the satisfaction of Lender, if no default or event of default exists hereunder, date such Advance is requested and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, giving pro forma effect to the Advance requested and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount use of the Revolving Loan and of the Project Loan for the related Project (if anyproceeds thereof), and shall bear interest at the rates provided herein from the date so advanced.
(d) Lender may take such steps as it may deem appropriate, at its option, to verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any such verification or to so vary said procedures.
(e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such funds.
(f) At the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date.specify:
Appears in 1 contract
Procedure for Advances. (a) Subject to the terms of this Agreement, the amount of each Advance for the Construction Allocation shall not exceed a sum calculated by multiplying the Construction Allocation portion of the Loan amount times the percentage of completion of the Improvements less the total aggregate amount of funds previously disbursed under such Loan for the Construction Allocation, less applicable Retainage, provided however, that the total amount advanced shall never exceed the original principal amount of the Note. Percentage of completion of the Improvements shall be determined in the reasonably discretion of the Lender.
(b) Subject to the terms of this Agreement, the amounts available for the Non Construction Allocation shall be advanced, but only to the extent that such charges have been incurred, or that the Borrower is otherwise entitled to payment on account of such items as provided for in the Approved Budget or otherwise in accordance with the Loan Documents.
(c) Each Application for Advance shall be made pursuant in writing, signed by the Borrower, and shall be accompanied by a certificate prepared by the Borrower, or at Lender’s election, Borrower’s Supervision Professional, which certificate shall state the percentage of completion of the Improvements and the services and/or materials to be paid for therefrom. Upon approval of such certificate by the Lender, the Advance shall be made. Prior to approval by Lender, the Lender shall be entitled to make any and all inspections and require further documentation from Borrower, all as Lender may deem necessary in order to substantiate and determine the percentage of completion of such Improvements. Lender may retain, at Borrower’s cost, the Inspecting Engineers to complete said inspections and to review the Master Plan and the Plans, prior to approval. Borrower agrees to pay to the Lender the actual cost of each inspection made by the Lender, its employees, agents, or contractors.
(d) Advances shall be made after construction of the Improvements (“Work”) has commenced and shall be made for Work done preceding the date of request upon Lender’s receipt of an Affidavit of Commencement in the form provided on Exhibit “F” attached hereto and made a part hereof for all purposes. Application for Advance shall be filed no more often than twice monthly, shall be filed at least ten working days before the date upon which an Advance is desired, shall be certified by the Supervision Professional, if any, and Borrower, and (if required by Lender) approved by the Inspecting Engineers, shall specify which contractors, subcontractors/suppliers are being paid out of said Advance and in what amounts, making reference to specific line items on the Approved Budget, and shall contain such information as Lender reasonably may request. Lender, at its discretion, may require a Compliance Letter and/or an Inspection Certificate prior to approving any Application for Advance. The amount of each Advance of the Construction Allocation under the Loan shall be the amount which the Contractor has earned under the Construction Contract, as approved by Lender, less amounts for which sums have been previously advanced, less the Retainage as more fully described in subparagraph (e) hereinafter and such amount shall be advanced under the Loan on behalf of Borrower and shall be delivered directly to Borrower. Lender shall not be required to advance funds if in the good faith opinion of Lender (i) the Work is not being completed in a Draw Request timely and good and workmanlike manner, in accordance with respect to Construction Project Loansthe Plans, and (ii) Borrower fails to promptly pay for any labor or materials relating to the Work, or (iii) the portion of the Loan then remaining unadvanced will not be sufficient to complete the Work in accordance with the Master Plan and the Approved Budget, whereupon no additional Advances will be due Borrower unless and until Borrower at its sole cost performs a sufficient portion of the Work so that such portion of the Loan then remaining unadvanced (including the Borrower Deposit as such term is defined in Subsection 1.10 hereinabove) is determined by Lender to be sufficient to so complete the Work. In such latter event, Lender may also require Borrower to provide evidence of availability of additional funds to make up such deficiency and/or may require that the additional funds be held by Lender as part of the Borrower Deposit, to be funded in accordance with the terms hereof. Notwithstanding the foregoing, completion of the Work for which an Application Advance is requested and Certificate for Payment with respect to Development Project Loans, which the amount of each Advance shall be submitted determined in the reasonable discretion of Lender. Borrower shall utilize all Advances made to it by Borrower Lender only for the payment of the costs itemized in the Approved Budget as amended from time to Lender and time. Anything to the Inspecting Architect. With respect contrary contained in this Section notwithstanding, in the event that Borrower is required to each Development Projectdeposit balancing funds with Lender hereunder and the Property is thereafter completed with subsequent savings that, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect had they occurred prior to Construction Projectsthe requirement of the balancing funds, would have rendered all or a portion of such deposit to be unnecessary, Borrower shall be entitled to make unlimited Draw Requests during any thirty a reimbursement of the funds deposited equal to the lesser of (30a) day periodthe amount of such subsequent savings or (b) the amount of the balancing funds deposit.
(b) Borrower shall deliver to Lender an updated Borrowing Base Certificate on the first (1st) day of each month. Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance with respect to each Construction Project Loan.
(c) On each Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower to the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if any), and shall bear interest at the rates provided herein from the date so advanced.
(de) Lender may take such steps as it may deem appropriatemay, at its optionelection, retain the statutory 10% Retainage from each Advance relating to verify the application construction of Project Loan proceeds Improvements hereunder in order to Costs allow Borrower to fully comply with Section 53.101 of the related ProjectTexas Property Code for the payment of mechanics, materialmen, subcontractors, contractors and artisans or others entitled to vary liens against the advancement procedures herein set forth Property for work done or materials supplied (the “Retainage”), such Retainage to be held until thirty days after the date the Lender has received the following: (1) a substantial completion certificate executed by Inspecting Engineers, the Supervision Professional, Contractor and Borrower, (2) evidence that all Governmental Requirements have been satisfied, including if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto includingapplicable, but not limited to, making Advances directly delivery to Lender of certificates of occupancy permitting the Improvements to be legally occupied, (3) evidence that no mechanic’s or materialmen’s liens or other encumbrances have been filed and remain in effect against the Property, (4) final lien releases or waivers by Contractor, and all subcontractors, materialmen, and other parties who have supplied labor, materials, or services for the construction of the Improvements, or who otherwise might be entitled to claim a contractual, statutory, or constitutional lien against the Property, and (5) issuance by the Title Company of an endorsement to the General Contractors and/or subcontractorsmortgagee title policy deleting the mechanic’s lien and pending disbursements exceptions and recertifying the survey deletion endorsement, at which time, such retained sums shall be disbursed by Lender to Borrower and then by Borrower to contractors, suppliers, artisans, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reducedothers entitled thereto. However, Lender shall not be obligated to conduct any such verification or to so vary said procedures.
(e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation does not retain the statutory 10% Retainage from each Advance relating to support a given Advance, as required by this Agreement, has not been furnishedconstruction of Improvements, it is agreed that Borrower, upon request by Lender, shall provide the Lender with proof in form and content satisfactory to the Lender that such statutory Retainage requirement is being complied with by Borrower. At the Lender’s discretion, upon notice to Borrower, the Lender may withhold payment of such Advance, or of such portion of Retainage from each such Advance as in a special account of Borrower established for that purpose for the use and benefit of those entitled thereto. Notwithstanding anything contained in this Agreement to the contrary, Lender shall not withhold Retainage on materials, soft costs, payments to subcontractors whose work has been completed and who have furnished a final lien waiver and release, and any Construction Contract for which payment and performance bonds acceptable to Lender have been obtained. Notwithstanding anything contained herein to the contrary, Lender shall retain five percent (5.00%) of each Advance in lieu of the statutory ten percent (10%) Retainage, and Borrower shall not be so supported required to provide Lender with proof that such statutory Retainage requirement is being complied with by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such fundsBorrower.
(f) At All Advances hereunder shall be made directly to Borrower, provided if an Event of Default has occurred, the time Lender at its option may make Advances directly to Borrower’s contractors, subcontractors, suppliers and artisans for work done, or other person entitled thereto, or jointly to Borrower and the applicable third party, or Lender may elect to make one or more Advances through the title company, at Borrower’s expense.
(g) Any provision in the Loan Documents to the contrary notwithstanding, Lender shall have no obligation to make any Advance hereunder or under any of each the Loan Documents if, as a result of such Advance, there Lender would be in violation of any applicable federal or state statute, law, regulation, or interpretation thereof, whether effective or prospective, regarding lending limits imposed upon Lender, including but not limited to the Xxxx-St. Xxxxxxx Depository Institutions Act of 1982, the Federal Reserve Act and applicable interpretive letters issued by the Office of the Comptroller of the Currency.
(h) Any provision hereof or in the Loan Documents to the contrary notwithstanding, the total of the Advances for the Improvements hereunder shall exist no default not exceed the lesser of (1) $17,167,000.00; (2) an amount equal to seventy percent (70%) of the appraised value of the Property on an “as completed” basis, as set forth in the Appraisal; or event (3) an amount equal to seventy percent (70%) of default hereunderBorrower’s costs expended on the Land and Improvements on items included in the Approved Budget, and all representations and warranties made herein shall exclusive of any developer fees not included in the Approved Budget.
(i) The initial Approved Budget does contain a line item for $751,698.00 in Development Fees, such fees may be true and correct on and funded through Application for Advance as of each Advance Date follows:
(1) Twenty-five percent (25%) to be funded at Borrower’s request with the same effect Initial Advance;
(2) Fifty percent (50%) to be funded monthly based on a straight line basis at Borrower’s request as if Advances are made on that datethe Loan; and
(3) The balance equal to twenty-five percent (25%) to be funded at Borrower’s request after the project certificate of occupancy has been issued by the City of Denton, Texas.
Appears in 1 contract
Samples: Construction Loan Agreement (Campus Crest Communities, Inc.)
Procedure for Advances. (a) Each Advance Not less than three (3) Business Days prior to the applicable Borrowing Date, the Agent shall be made pursuant deliver written notice to each Lender at the address specified by each Lender from time to time which notice shall include such Borrowing Date and such Lender’s ratable share of such Advance. Within seven (i7) days after such Borrowing Date, the Agent shall deliver to each Lender any items reasonably requested by the Agent or a Draw Request with respect Lender to Construction Project Loans, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which shall be submitted by Borrower to Lender the extent such items have not previously been delivered and to the Inspecting Architect. With respect extent in the Agent’s possession, but Agent’s failure to each Development Project, Borrower do so shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day periodaffect Borrower’s rights under this Agreement. With respect The Lenders shall make the requested Advance on the Borrowing Date so long as all conditions to Construction Projectssuch Advance are satisfied as determined by the Agent. Unless otherwise notified by the Agent, Borrower shall be entitled each Lender may assume that all conditions to make unlimited Draw Requests during any thirty (30) day periodsuch Advance are satisfied on the Borrowing Date.
(b) Borrower shall deliver to Lender an updated Borrowing Base Certificate Not later than 10:30 a.m. New York City time, on the first (1st) date set forth in the Draw Request, each Lender shall make available for the account of the Agent at its address referred to in Section 11.5 hereof, in same day funds, such Lender’s ratable portion of each monthsuch Advance. Borrower shall also deliver After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions in Sections 3.2, 3.3 and 3.4 hereof, the Agent will make such funds available to Lender a revised the Borrower, on the Borrowing Base Certificate Date, in accordance with each request for an Advance with respect to each Construction Project Loanthe terms of this Section 3.5.
(c) On each Advance Date, if all the terms and conditions of this Agreement Unless Agent shall have been complied with notified in writing by Borrower any Lender prior to the satisfaction date of an Advance that such Lender does not intend to make available to Agent such Lender’s ratable portion of the Advance to be made on such date, if no default or event of default exists hereunderAgent may assume that such Lender has made such amount available to Agent on such date, and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance Agent may make available to Borrower a corresponding amount. If such corresponding amount is not in fact made available to Agent by such Lender on the principal date of such Advance, Agent shall promptly notify Borrower of such fact by telephone (promptly confirmed in writing), but shall have no obligation to make such corresponding amount of each requested Advance by wire transfer of funds for the amount available to Borrower. Except as expressly set forth in the applicable Draw Request or Application Sections 3.5.2(d) and Certificate of Payment (less any required retainage3.5.2(e) below, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made nothing in this Section 3.5.2 shall be deemed to be loans relieve any Lender from its obligations to Borrowerfulfill its Commitment or to prejudice any rights which Borrower may have against any Lender as a result of any default by such Lender hereunder. Any Lender which defaults in funding its ratable portion of an Advance under this Agreement (a “Defaulting Lender”) shall indemnify Borrower and the non-defaulting Lenders and hold each of them harmless from and against any and all loss, shall reduce the available amount cost, liability, damage or expense, including, without limitation, reasonable attorneys’ fees and costs arising out of the Revolving Loan and of the Project Loan for the related Project (if any), and shall bear interest at the rates provided herein from the date so advancedany such default.
(d) No Lender may take such steps as it may deem appropriate, at shall be responsible for any default by any other Lender (except that the Defaulting Lender shall be responsible for its option, to verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, own default and the amount indemnity provided for in the last sentence of Section 3.5.2(c) above) in its obligation to make Advances to be made to the Borrower hereunder shall be correspondingly reducedhereunder. However, No Lender shall not be obligated to conduct fund its ratable portion of any Advance in the event of the failure of any other Lender to fund its ratable portion of any such verification or Advance, subject to so vary said proceduresthe provisions of Section 3.5.2(e) below.
(e) In If any Lender fails to make its ratable portion of any Advance in accordance with this Agreement and the event that Loan Documents (an “Advance Default”), Agent shall promptly provide notice thereof to the non-Defaulting Lenders and Borrower and, subject to the remaining provisions of this Section 3.5.2(e), the non-Defaulting Lenders shall have no further obligation to make any Advances. Notwithstanding the foregoing, one or more of the other Lenders (the “Performing Lenders”) may elect to fund all or any portion of the Defaulting Lender’s ratable portion of such Advance (although none of Lenders or Agent shall have any obligation to make any such Advances). For any Advance with respect to which a Lender shall determine, in its reasonable judgment, that proper documentation has agreed to support become a given Advance, as required by this Agreement, has not been furnished, it may withhold payment Performing Lender and to fully fund the Defaulting Lender’s ratable portion of such Advance, or of such each non-Defaulting Lender shall make its respective ratable portion of such Advance which it was otherwise obligated to make when and as otherwise required to be made by such Lender. In addition, at any time following an Advance Default, either (x) Agent and Borrower may arrange for an existing Lender or a new lender (which shall be an Eligible Assignee and shall be reasonably acceptable to the non-Defaulting Lenders) to become a substitute lender (the “Substitute Lender”) with respect to the Defaulting Lender’s Commitment for the unadvanced amount of the Loan or (y) if no Lender has agreed to become a Performing Lender, the Guarantor or the Limited Guarantor may fund the Defaulting Lender’s ratable portion of the Advance in question and undertake to fund the entire remaining amount of the Defaulting Lender’s Commitment as an additional equity contribution to the Borrower in connection with each subsequent Advance, provided, however, that Guarantor or the Limited Guarantor, as applicable, shall be required to provide assurance of its future performance of such contribution obligations in a manner which is satisfactory to the Agent in its sole and absolute discretion and written confirmation that the Senior Lender has consented to such an arrangement, and provided, further, that such contribution obligations of Guarantor and/or Limited Guarantor shall not be so supported by proper documentationreleased, reduced, limited or relieved in connection with any release of the Completion Guaranty and/or the Interest and Operating Costs Guaranty in accordance with Section 2.10 above. No such assignment shall release or relieve the Defaulting Lender of any liability for its breach of this Agreement or the Loan Documents or under the indemnity set forth in Section 3.5.2(c) above. Notwithstanding anything contained herein to the contrary, if Agent and Borrower arrange for, and shall promptly notify Borrower substitute the Defaulting Lender with, a Substitute Lender, or otherwise satisfy the conditions of this Section 3.5.2(e), then the non-Defaulting Lenders’ obligations with respect to all yet unadvanced amounts of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of Lender, it may withhold such funds.
(f) At the time of each Advance, there Loan shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect continue as if made on that datean Advance Default had not occurred.
Appears in 1 contract
Samples: Mezzanine Construction Loan Agreement (Prime Group Realty Trust)
Procedure for Advances. (a) Subject to the terms of this Agreement, the amount of each Advance for the Construction Allocation shall not exceed a sum calculated by multiplying the Construction Allocation portion of the Loan amount times the percentage of completion of the Improvements less the total aggregate amount of funds previously disbursed under such Loan for the Construction Allocation, less applicable Retainage, provided however, that the total amount advanced shall never exceed the original principal amount of the Note. Percentage of completion of the Improvements shall be determined in the reasonably discretion of the Lender.
(b) Subject to the terms of this Agreement, the amounts available for the Non Construction Allocation shall be advanced, but only to the extent that such charges have been incurred, or that the Borrower is otherwise entitled to payment on account of such items as provided for in the Approved Budget or otherwise in accordance with the Loan Documents.
(c) Each Application for Advance shall be made pursuant in writing, signed by the Borrower, and shall be accompanied by a certificate prepared by the Borrower, or at Lender’s election, Borrower’s Supervision Professional, which certificate shall state the percentage of completion of the Improvements and the services and/or materials to be paid for therefrom. Upon approval of such certificate by the Lender, the Advance shall be made. Prior to approval by Lender, the Lender shall be entitled to make any and all inspections and require further documentation from Borrower, all as Lender may deem necessary in order to substantiate and determine the percentage of completion of such Improvements. Lender may retain, at Borrower’s cost, the Inspecting Engineers to complete said inspections and to review the Master Plan and the Plans, prior to approval. Borrower agrees to pay to the Lender the actual cost of each inspection made by the Lender, its employees, agents, or contractors.
(d) Advances shall be made after construction of the Improvements (“Work”) has commenced and shall be made for Work done preceding the date of request upon Lender’s receipt of an Affidavit of Commencement in the form provided on Exhibit “F” attached hereto and made a part hereof for all purposes. Application for Advance shall be filed no more often than twice monthly, shall be filed at least ten working days before the date upon which an Advance is desired, shall be certified by the Supervision Professional, if any, and Borrower, and (if required by Lender) approved by the Inspecting Engineers, shall specify which contractors, subcontractors/suppliers are being paid out of said Advance and in what amounts, making reference to specific line items on the Approved Budget, and shall contain such information as Lender reasonably may request. Lender, at its discretion, may require a Compliance Letter and/or an Inspection Certificate prior to approving any Application for Advance. The amount of each Advance of the Construction Allocation under the Loan shall be the amount which the Contractor has earned under the Construction Contract, as approved by Lender, less amounts for which sums have been previously advanced, less the Retainage as more fully described in subparagraph (e) hereinafter and such amount shall be advanced under the Loan on behalf of Borrower and shall be delivered directly to Borrower. Lender shall not be required to advance funds if in the good faith opinion of Lender (i) the Work is not being completed in a Draw Request timely and good and workmanlike manner, in accordance with respect to Construction Project Loansthe Plans, and (ii) Borrower fails to promptly pay for any labor or materials relating to the Work, or (iii) the portion of the Loan then remaining unadvanced will not be sufficient to complete the Work in accordance with the Master Plan and the Approved Budget, whereupon no additional Advances will be due Borrower unless and until Borrower at its sole cost performs a sufficient portion of the Work so that such portion of the Loan then remaining unadvanced (including the Borrower Deposit as such term is defined in Subsection 1.10 hereinabove) is determined by Lender to be sufficient to so complete the Work. In such latter event, Lender may also require Borrower to provide evidence of availability of additional funds to make up such deficiency and/or may require that the additional funds be held by Lender as part of the Borrower Deposit, to be funded in accordance with the terms hereof. Notwithstanding the foregoing, completion of the Work for which an Application “Advance is requested and Certificate for Payment with respect to Development Project Loans, which the amount of each Advance shall be submitted determined in the reasonable discretion of Lender. Borrower shall utilize all Advances made to it by Borrower Lender only for the payment of the costs itemized in the Approved Budget as amended from time to Lender and time. Anything to the Inspecting Architect. With respect contrary contained in this Section notwithstanding, in the event that Borrower is required to each Development Projectdeposit balancing funds with Lender hereunder and the Property is thereafter completed with subsequent savings that, Borrower shall not submit more than one (1) Application and Certificate for Payment during any thirty (30) day period. With respect had they occurred prior to Construction Projectsthe requirement of the balancing funds, would have rendered all or a portion of such deposit to be unnecessary, Borrower shall be entitled to make unlimited Draw Requests during any thirty a reimbursement of the funds deposited equal to the lesser of (30a) day periodthe amount of such subsequent savings or (b) the amount of the balancing funds deposit.
(b) Borrower shall deliver to Lender an updated Borrowing Base Certificate on the first (1st) day of each month. Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance with respect to each Construction Project Loan.
(c) On each Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower to the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if any), and shall bear interest at the rates provided herein from the date so advanced.
(de) Lender may take such steps as it may deem appropriatemay, at its optionelection, retain the statutory 10% Retainage from each Advance relating to verify construction of Improvements hereunder in order to allow Borrower to fully comply with Section 53.101 of tire Texas Property Code for the application payment of Project Loan proceeds mechanics, materialmen, subcontractors, contractors and artisans or others entitled to Costs of liens against the related ProjectProperty for work done or materials supplied (the “Retainage”), such Retainage to be held until thirty days after the date the Lender has received the following: (1) a substantial completion certificate executed by Inspecting Engineers, the Supervision Professional, Contractor and to vary the advancement procedures herein set forth Borrower, (2) evidence that all Governmental Requirements have been satisfied, including if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto includingapplicable, but not limited to, making Advances directly delivery to Lender of certificates of occupancy permitting the Improvements to be legally occupied, (3) evidence that no mechanic’s or materialmen’s liens or other encumbrances have been filed and remain in effect against the Property, (4) final lien releases or waivers by Contractor, and all subcontractors, materialmen, and other parties who have supplied labor, materials, or services for the construction of the Improvements, or who otherwise might be entitled to claim a contractual, statutory, or constitutional lien against the Property, and (5) issuance by the Title Company of an endorsement to the General Contractors and/or subcontractorsmortgagee title policy deleting the mechanic’s lien and pending disbursements exceptions and recertifying the survey deletion endorsement, at which time, such retained sums shall be disbursed by Lender to Borrower and then by Borrower to contractors, suppliers, artisans, and the amount of Advances to be made to the Borrower hereunder shall be correspondingly reducedothers entitled thereto. However, Lender shall not be obligated to conduct any such verification or to so vary said procedures.
(e) In the event that Lender shall determine, in its reasonable judgment, that proper documentation does not retain the statutory 10% Retainage from each Advance relating to support a given Advance, as required by this Agreement, has not been furnishedconstruction of Improvements, it may withhold payment of such Advanceis agreed that Borrower, or of such portion of such Advance as upon request by Lender, shall not be so supported by proper documentation, provide the Lender with proof in form and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected content satisfactory to the satisfaction of Lender that such statutory Retainage requirement is being complied with by Borrower. At the Lender’s discretion, it upon notice to Borrower, the Lender may withhold such fundsRetainage from each such Advance in a special account of Borrower established for that purpose for the use and benefit of those entitled thereto. Notwithstanding anything contained in this Agreement to the contrary, Lender shall not withhold Retainage on materials, soft costs, payments to subcontractors whose work has been completed and who have furnished a final lien waiver and release, and any Construction Contract for which payment and performance bonds acceptable to Lender have been obtained.
(f) At All Advances hereunder shall be made directly to Borrower, provided if an Event of Default has occurred, the Lender at its option may make Advances directly to Borrower’s contractors, subcontractors, suppliers and artisans for work done, or other person entitled thereto, or jointly to Borrower and the applicable third party, or Lender may elect to make one or more Advances through the title company, at Borrower’s expense.
(g) Any provision in the Loan Documents to the contrary notwithstanding, Lender shall have no obligation to make any Advance hereunder or under any of the Loan Documents if, as a result of such Advance, Lender would be in violation of any applicable federal or state statute, law, regulation, or interpretation thereof, whether effective or prospective, regarding lending limits imposed upon Lender, including but not limited to the Xxxx-St. Xxxxxxx Depository Institutions Act of 1982, the Federal Reserve Act and applicable interpretive letters issued by the Office of the Comptroller of the Currency.
(h) Any provision hereof or in the Loan Documents to the contrary notwithstanding, the total of the Advances for the Improvements hereunder shall not exceed the lesser of (1) $13,355,000.00; (2) an amount equal to sixty-five percent (65%) of the appraised value of the Property on an “as completed” basis, as set forth in the Appraisal; or (3) an amount equal to sixty-five percent (65%) of Borrower’s costs expended on the Land and Improvements on items included in the Approved Budget, exclusive of any developer fees not included in the Approved Budget.
(i) The initial Approved Budget does contain a line item for $637,049.00 in Development Fees, such fees may be funded through Application for Advance as follows:
(1) $10,000.00 per month beginning in the first month Advances for Improvements are made, up to $120,000.00;
(2) $100,000.00 upon substantial completion of the Improvements and obtaining a project certificate of occupancy from the City of Huntsville;
(3) $100,000.00 when the monthly gross rents are equal or greater than the monthly expenses including debt service; and
(4) The balance to be funded at Borrower’s request after Rent Stabilization, to wit: when the Property reaches a 1.30 to 1,00 debt service coverage ratio for 90 consecutive days based on collected rents, a 30 year amortization utilizing an assumed underwriting interest rate equal to the greater of (i) seven percent (7.00%) per annum or (ii) the per annum interest rate for a permanent loan quoted in the market at the time of each Advance, there shall exist no default or event of default hereunder, and all representations and warranties made herein shall be true and correct the calculation for loans on and as of each Advance Date with the same effect as if made on that datestudent housing properties.
Appears in 1 contract
Samples: Construction Loan Agreement (Campus Crest Communities, Inc.)
