Stored Materials. Lender shall not be required to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfied: (a) Borrower shall deliver to Lender bills of sale or other evidence reasonably satisfactory to Lender of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materials; (b) The Stored Materials are identified to the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvements; (c) The Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender shall reasonably approve, and are protected against theft and damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is located; (d) The Stored Materials will be paid for in full with the funds to be disbursed, and all lien rights or claims of the supplier will be released upon full payment; (e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials; (f) The Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreement; (g) The aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements; and (h) The aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loan.
Appears in 3 contracts
Samples: Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust)
Stored Materials. Lender The Banks shall not be required to disburse any funds for any materials, furnishings, fixtures, machinery or other Personal Property equipment not yet incorporated into the Project Land or Improvements (the “"Stored Materials”), ") unless the following conditions are satisfied:
(a) Borrower The Stored Materials are components in a form ready for incorporation into the Land or the Improvements and shall deliver to Lender bills of sale or other evidence reasonably satisfactory to Lender of the cost of, and, (subject to the payment therefor, forces beyond Borrower’s title in and to such Stored Materials's reasonable control) be so incorporated within a period of 30 days;
(b) The Stored Materials Material are identified to stored at the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to Land or such materialsother location approved by the Agent, and are components in substantially final form ready for incorporation into protected against theft, vandalism and the Project Improvementselements;
(c) The Stored Materials are stored at the Property have been paid for in full or at such other third-party owned and operated site as Lender shall reasonably approve, and are protected against theft and damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is located;
(d) The Stored Materials will be paid for in full with the funds to be disbursed, and all lien rights or and claims of the supplier have been released or will be released upon full paymentpayment with disbursed funds and no seller or supplier reserves or purports to reserve title or the right of removal or repossession, or the right to consider such Store Materials personal property after their incorporation into the Improvements;
(ed) Lender Borrower has or shall have upon payment with disbursed funds title to the Stored Materials subject to no liens, charges, title retention agreements or other encumbrances except those in favor of Agent, and Agent has or will have upon payment with disbursed funds a perfected, perfected first priority security interest in the Stored Materials;
(fe) The Borrower shall supply to the Agent evidence reasonably satisfactory to the Agent that the Stored Materials are included in the coverage of the insurance policies required hereunder and are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreement;
(g) The aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvementscost; and
(hf) The aggregate cost of If the Stored Materials are not stored on at the Property Land, (i) the Stored Materials are stored and segregated in a bonded warehouse or storage yard approved by the Agent, (ii) that the warehouse or yard has been notified that the Agent has a security interest in the subject Stored Materials, (iii) the Contractor and the Borrower's Architect have inspected the fully fabricated components at any one time shall not exceed ten percent the off-site location, and have approved the Draw Request for such Stored Materials, (10%iv) the Agent has received from Borrower a copy of the maximum amount warehouse receipt (which copy shall include an acknowledgment from the owner or lessee of the Loan warehouse that such party has possession of the original warehouse receipt) and color photographs of such Stored Materials clearly identifying such Stored Materials, and (v) the Agent has received satisfactory evidence that the Stored Materials are protected against theft, damage, vandalism, and the aggregate cost of Stored Materials stored off elements, have been suitably identified as belonging to Borrower for use in the Property at any one time shall not exceed five percent (5%) Project and that such seller, supplier or fabricator has been notified of the maximum amount security interest of the LoanAgent therein.
Appears in 2 contracts
Samples: Construction Loan Agreement (Walden Residential Properties Inc), Construction Loan Agreement (Walden Residential Properties Inc)
Stored Materials. Lender shall not be required to disburse authorize any disbursement of funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfiedsatisfied or waived in writing by Lender:
(a) Borrower Borrowers shall deliver to Lender bills of sale or other evidence reasonably satisfactory to Lender of the cost of, and, subject to the payment therefor, Borrower’s Borrowers’ title in and to to, such Stored Materials;
(b) The Stored Materials are identified to the Hotel/Casino Property or the Adjacent Property and BorrowerBorrowers, are segregated so as to adequately give notice to all third parties of Borrower’s Borrowers’ title in and to such materials, and are components in substantially final form ready for incorporation into the Project ImprovementsProject;
(c) The Stored Materials are stored at the Hotel/Casino Property or the Adjacent Property or at such other third-third party owned and operated site as Lender shall reasonably approve, approve (which shall specifically exclude any site located outside of the continental United States) and are protected against theft and damage in a manner reasonably satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is locatedLas Vegas, Nevada;
(d) The Stored Materials will be paid for in full with the funds to be disbursed, disbursed and all lien Lien rights or claims of the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreementhereof;
(g) The aggregate cost of Stored Materials to be stored at the Hotel/Casino Property is approved by and/or the Construction Consultant and, if required by Lender, the Construction Consultant Adjacent Property at any one time shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvementsnot exceed $10,000,000.00; and
(h) The aggregate cost of Stored Materials to be stored on off-site from the Hotel/Casino Property and the Adjacent Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loan$20,000,000.00.
Appears in 2 contracts
Samples: Loan Agreement (Hard Rock Hotel Holdings, LLC), Loan Agreement (Hard Rock Hotel Holdings, LLC)
Stored Materials. Lender shall not be required to disburse authorize any disbursement of funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfiedsatisfied or waived in writing by Lender:
(a) Borrower Borrowers shall deliver to Lender bills of sale or other evidence reasonably satisfactory to Lender of the cost of, and, subject to the payment therefor, Borrower’s Borrowers’ title in and to to, such Stored Materials;
(b) The Stored Materials are identified to the Hotel/Casino Property or the Adjacent Property and BorrowerBorrowers, are segregated so as to adequately give notice to all third parties of Borrower’s Borrowers’ title in and to such materials, and are components in substantially final form ready for incorporation into the Project ImprovementsProject;
(c) The Stored Materials are stored at the Hotel/Casino Property or the Adjacent Property or at such other third-third party owned and operated site as Lender shall reasonably approve, approve (which shall specifically exclude any site located outside of the continental United States) and are protected against theft and damage in a manner reasonably satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is locatedLas Vegas, Nevada;
(d) The Stored Materials will be paid for in full with the funds to be disbursed, disbursed and all lien Lien rights or claims of the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreementhereof;
(g) The aggregate cost of Stored Materials to be stored at the Hotel/Casino Property is approved by and/or the Construction Consultant and, if required by Lender, the Construction Consultant Adjacent Property at any one time shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvementsnot exceed $5,000,000.00; and
(h) The aggregate cost of Stored Materials to be stored on off-site from the Hotel/Casino Property and the Adjacent Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loan$1,000,000.00.
Appears in 1 contract
Stored Materials. Lender Lenders shall not be required to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfiedAgent receives reasonably satisfactory evidence that:
(a) Borrower shall deliver the Stored Materials are, or will be, upon payment with disbursed funds, owned by Borrower, as evidenced, to Lender the extent required by Agent, by bills of sale sale, certificates of title or other evidence reasonably satisfactory to Lender of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materialsevidence;
(b) The the Stored Materials are identified fabricated or unfabricated components conforming to the Property Plans and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in Specifications and to such materials, and are components in substantially final form ready for incorporation into the Project ImprovementsProject;
(c) The the Stored Materials are properly identified and adequately protected, as evidenced by a letter from Borrower, the General Contractor, the appropriate Major Contractor or Major Subcontractor or another Person reasonably acceptable to Agent;
(d) the Stored Materials are stored at the Property Premises or at such other third-party owned and operated site as Lender Agent shall reasonably approve, which site has been specifically identified to Agent, and are protected against theft and damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is locateddamage;
(de) The the Stored Materials will be paid for in full (less the Retainage, if any) with the funds to be disbursed, and all lien rights or claims of the supplier will be released upon simultaneously with full paymentpayment of all amounts required to be paid for such Stored Materials and all amounts, if any, required to be paid to the supplier thereof with respect to the installation thereof (including any Retainage, if any);
(ef) Lender Agent has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials (and with respect to Stored Materials not stored at the Premises, Borrower shall execute and deliver to Agent any and all Uniform Commercial Code financing statements or similar filings required by the laws of any jurisdiction necessary to grant Agent such security interest in such Stored Materials);
(fg) The the Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 2.05 of this Agreementthe Building Loan Mortgage;
(gh) The aggregate the cost of Stored Materials not stored at the Property Premises in the aggregate at any time is not more than $25,000,000.00, or such greater amount as may be reasonably approved by the Construction Consultant Agent; and, if required by Lender,
(i) the Construction Consultant shall certify that it has inspected such have confirmed the accuracy of the letter required in subparagraph (c) above, and in connection therewith the Construction Consultant may, but shall not be required to, visit the site of and inspect the Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements; and
(h) The aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the LoanBorrower’s expense.
Appears in 1 contract
Stored Materials. (i) Lender shall not be required to disburse any funds for any materials, machinery or other Personal Property personal property not yet incorporated into the Phase Zero Renovation Project Improvements and/or PIP Project, as applicable, (the “Stored Materials”), unless the following conditions are satisfiedsatisfied at Borrower's sole cost and expense:
(a1) Borrower shall deliver to Lender Agent bills of sale or other evidence reasonably satisfactory to Lender Agent of the cost of, and, subject to the payment therefor, the Borrower’s 's title in and to such Stored Materials;
(b2) The the Stored Materials are and at all times shall be located in the United States;
(3) the Stored Materials are identified to the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s 's title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvements;; 49289660
(c4) The the Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender Agent shall reasonably approve, and are protected against theft and damage in a manner satisfactory to LenderAgent, including, if requested by LenderAgent, storage in a bonded warehouse in the greater metropolitan area in which the Property is located;
(d5) The with respect to Stored Materials that are not stored at the Property, such Stored Materials will not be moved except in connection with the delivery of such materials to the Property or to another storage location that conforms with the requirements of this Section 5.43(g);
(6) the Stored Materials will be paid for in full with the funds to be disbursed, and all lien rights or claims of the supplier will be released upon full payment;
(e7) Lender Agent (for the benefit of Lenders) has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The 8) the Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreementcosts;
(g9) The the aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by LenderAgent, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements;
(10) If required by Agent, Agent shall have received a warehouseman’s letter or similar letter or agreement in which the landlord, warehouseman, processor, or other Person that may have lienholders’ enforcement rights with respect to any Stored Materials in such Person’s possession, custody or control shall (A) waive or subordinate its liens and claims with respect to any Stored Materials in favor of Agent’s Lien and (B) assure Agent’s access to such Stored Materials to enable Agent to repossess and enforce its Lien and other rights with respect to such Stored Materials; and
(h11) The the aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan $500,000 and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loan$2,000,000 unless otherwise approved by Agent acting in its sole discretion.
Appears in 1 contract
Samples: Loan Agreement (Creative Media & Community Trust Corp)
Stored Materials. Lender will make Disbursements for the ---------------- cost of Stored Materials (not including any profit or overhead of General Contractor or any Contractor or Subcontractor (other than the manufacturer or supplier of such materials) payable in respect of such Stored Materials, for which a Disbursement shall be made only after incorporation of the Stored Materials into the Project) subject to the other provisions of this Agreement, and further provided that Lender shall not be required have received the following, in form and substance satisfactory to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfiedLender:
(a) Borrower shall deliver to Lender bills of sale or other evidence reasonably satisfactory to Lender for materials stored on the Premises, invoices indicating actual cost of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materials, not including profit and overhead;
(b) The evidence that the Stored Materials are identified to appropriate for purchase during the Property and Borrower, are segregated so as to adequately give notice to all third parties then current stage of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvementsconstruction;
(c) The evidence that the Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender shall reasonably approve, have been paid for and are protected against theft and damage in a manner satisfactory owned by (or upon payment of the amount to Lender, including, if requested by Lender, storage in a bonded warehouse in be disbursed pursuant to the greater metropolitan area in which the Property is located;
(d) The Stored Materials will applicable Request for Disbursement shall be paid for in full with the funds to be disbursed, and owned by) Borrower free of all lien rights or claims of the supplier will be released upon full paymentvendor or any third party;
(d) evidence that (i) the Stored Materials are easily and readily identifiable for use as intended in the Project and (ii) are securely stored on- site or in a bonded warehouse or storage yard approved by Lender and, if stored in a warehouse or storage yard, the warehouse or storage yard has been notified that Lender has a security interest in the subject stored materials and the original warehouse receipt;
(e) Lender has for those stored materials stored off-site, a certificate or will have upon payment with disbursed funds a perfectedbinder of insurance from Borrower or the supplier, first priority security interest in fabricator or other subcontractor, covering the Stored Materials;Materials against loss, theft and damage in a manner and amount satisfactory to Lender, naming Lender as a loss-payee; and
(f) The evidence of filing of any UCC-1 financing statement or statements required to perfect Lender's lien with respect to such Stored Materials Materials, and satisfactory assurance to Lender that such materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreement;
(g) The aggregate cost of Stored Materials stored at the Property is approved covered by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements; and
(h) The aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) security agreement provisions of the maximum amount Deed of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the LoanTrust and' that Lender has a perfected security interest in such materials.
Appears in 1 contract
Samples: Construction Loan Agreement (Boston Properties Inc)
Stored Materials. Lender (1) The Lenders shall not be required advance the proceeds of Loans with respect to disburse any funds for any materials, machinery or other Personal Property materials and equipment that are included in the Budget and are not yet incorporated into the Improvements as of the date of the applicable Loans, but are temporarily stored at the Project Improvements (so long as the “Stored Materials”), unless Administrative Agent shall have received the following conditions are satisfieditems, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) evidence that Borrower shall deliver has an obligation under the applicable contract, subcontract or purchase order to Lender bills of sale or other evidence reasonably satisfactory pay for such materials and equipment prior to Lender of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materialstheir installation;
(b) The Stored Materials evidence that the ownership of such materials and equipment is vested in Borrower free of any liens and claims of third parties, including, without limitation, bills of sale and conditional lien waivers from the respective contractor, subcontractor or vendor and that such material and equipment are identified clearly marked to indicate the Property and ownership thereof by Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvements;
(c) The Stored Materials evidence that such stored materials are stored at included within the Property coverages of insurance policies carried by Borrower or at such proof of other third-party owned and operated site as Lender insurance (which shall reasonably approve, and are protected against theft and damage in include a manner satisfactory to Lender, including, if requested standard mortgagee endorsement or its equivalent) which has been approved by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is locatedAdministrative Agent;
(d) The Stored Materials will be paid for in full with evidence acceptable to the funds to be disbursedAdministrative Agent and the Construction Consultant that the stored materials are reasonably protected against vandalism (casualty), and all lien rights theft or claims of the supplier will be released upon full paymentdamage;
(e) Lender has or will have upon payment with disbursed funds a perfectedevidence that Loans made by the Lenders for said materials do not, first priority security interest at any one time, exceed, in the Stored Materialsaggregate, $10,000,000, inclusive of the amount requested;
(f) The Stored Materials are insured for an amount equal evidence that the Administrative Agent (on behalf of the Lenders) has a perfected first security interest in such material prior to their replacement costs in accordance or simultaneous with Section 6.1 the making of this Agreementsuch Loans;
(g) The aggregate cost of Stored Materials stored at evidence acceptable to the Property is approved by Administrative Agent and the Construction Consultant andas to the identity, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials quality and they are in good condition and suitable for use in connection with the Project Improvementsquantity of same; and
(h) The aggregate cost evidence that all other applicable requirements and conditions with respect to such advance of Stored Materials Loan proceeds have been satisfied.
(2) Unless otherwise approved by the Administrative Agent, the Lenders shall not be required to make any Loans with respect to any materials or equipment unless and until such materials and equipment are delivered to the Project or incorporated into the Improvements. Notwithstanding the foregoing, the Lenders shall make Loans with respect to materials, equipment and parts that are included in the Budget and are not yet incorporated into the Improvements as of the date of the applicable Loans, but are temporarily stored at sites other than the Project so long as the Administrative Agent shall have received the following items, each in form and substance satisfactory to the Administrative Agent:
(a) satisfaction of the requirements set forth in Section 4.8(1)(a), (b), (d), (g) and (h) with respect to any such materials, equipment and parts;
(b) evidence that upon payment the ownership of such fabricated materials, equipment and parts is vested in Borrower free of any liens and claims of third parties, including, without limitation, bills of sale and conditional lien waivers from the respective supplier and UCC searches with respect to the respective supplier;
(c) evidence that the materials, equipment and parts are under the control of the applicable supplier and are being kept at bonded warehouse sites or otherwise stored in a designated and secured area satisfactory to the Administrative Agent and the Construction Consultant, in each case in the U.S.A. and reasonably approved by the Administrative Agent and the Construction Consultant; and that such materials, equipment and parts shall have been clearly designated, marked or tagged to indicate ownership by Borrower and the security interest of the Administrative Agent (on behalf of the Property Lenders) therein;
(d) evidence that advances made by the Lenders for said fabricated materials, equipment and parts do not, at any one time shall not exceed ten percent (10%) time, exceed, in the aggregate, $5,000,000, inclusive of the maximum amount requested, for such materials, equipment and parts stored in the U.S.
A.; except that (i) Borrower may store up to $5,000,000 of curtain wall materials currently stored off-site as of the Loan Closing Date in Mexico (so long as all other requirements set forth in this Section 4.8(2) regarding off-site stored materials are satisfied) and (ii) Borrower may store up to $5,000,000 of structural steel currently stored off-site as of the Closing Date elsewhere in the United States;
(e) evidence that the Administrative Agent (on behalf of the Lenders) has a perfected first security interest (i.e., Uniform Commercial Code filings or other applicable filings) in such materials, equipment and parts prior to or simultaneous with the making of such Loans, which requirement shall, if requested by the Administrative Agent in connection with the first advance for property stored in the applicable state (and in connection with any other advance in such state when the Administrative Agent reasonably believes that the collateral is substantially different from the type of collateral covered by the first opinion), be supported by the opinion of a local counsel in the state where the applicable equipment and parts are stored; and
(f) the Construction Consultant and/or the Administrative Agent shall have the right to inspect such materials, equipment and parts and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent locations where such equipment and parts are stored.
(5%3) Except as otherwise set forth on Schedule 4.8 attached hereto, Borrower represents and warrants that, as of the maximum amount of Closing Date, there are no other materials that will be incorporated into the LoanProject stored either at the Project or at sites other than the Project.
Appears in 1 contract
Samples: Construction Loan Agreement
Stored Materials. Lender Agent and Lenders shall not be required to disburse any funds for any materials, furnishings, fixtures, machinery or other Personal Property equipment not yet incorporated into the Project Land or Improvements (the “Stored Materials”), unless provided, however, upon Agent’s receipt of reasonably satisfactory evidence that each of the following conditions are items below in this Section 2.7 have been satisfied, Lenders shall disburse funds for Stored Materials, and any such disbursement shall be so made contingent upon Agent receiving satisfactory evidence that:
(a) Borrower shall deliver to Lender bills of sale or other evidence reasonably satisfactory to Lender of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materials;
(b) The Stored Materials are identified to the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final a form ready for incorporation into the Project ImprovementsLand or the Improvements and shall be so incorporated within a period of thirty (30) days;
(cb) The the Stored Materials are stored at the Property Land, or at such other third-party owned and operated site as Lender Agent shall reasonably approve, and are protected against theft and damage damage;
(c) the Stored Materials have been paid for in a manner satisfactory full, or will be paid for with the funds to Lender, including, if requested by Lender, storage in a bonded warehouse in be disbursed and all lien rights and claims of the greater metropolitan area in which the Property is locatedsupplier have been released or will be released upon payment with disbursed funds;
(d) The Stored Materials will be paid Agent, for in full with the funds to be disbursedbenefit of Lenders, and all lien rights or claims of the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(fe) The the Stored Materials are insured for an amount equal to their replacement costs cost;
(f) Borrower shall deliver to Lender a schedule of any such Stored Materials in accordance connection with Section 6.1 of this Agreementany Draw Request for Advances relating to Stored Materials;
(g) The aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, Inspector shall have the Construction Consultant shall certify that it has inspected such right to view and inspect the Stored Materials and they are in good condition and suitable for use in connection with the Project ImprovementsMaterials; and
(h) The the aggregate cost amount of advances for Stored Materials stored on that have not yet been incorporated into the Property at any one time Improvements shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loan$1,000,000.00.
Appears in 1 contract
Samples: Construction Loan Agreement (CNL Growth Properties, Inc.)
Stored Materials. Lender Notwithstanding anything herein to the contrary, Broward Health shall not be required to disburse any funds pay for any materials, machinery equipment, machinery, or other Personal Property personal property stored off the Work Site, or stored on the Work Site but not yet incorporated into the Project Improvements Work (the “Stored Materials”), unless the following conditions are satisfiedsatisfied by Contractor:
(a) Borrower Contractor shall deliver to Lender Broward Health bills of sale or and/or other evidence reasonably satisfactory to Lender Broward Health of the cost of, and, subject to the payment therefor, BorrowerBroward Health’s title in and to such Stored Materials;
(b) The Stored Materials are identified to the Property Work and BorrowerBroward Health, are segregated so as to adequately give notice to all third parties of BorrowerBroward Health’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project ImprovementsWork;
(c) The Stored Materials are stored at the Property Work or other property owned by Broward Health in the area or at such other third-third party owned and operated site as Lender Broward Health shall reasonably approve, in writing, and are protected against theft and damage in a manner reasonably satisfactory to LenderBroward Health, including, if requested by LenderBroward Health, storage in a bonded warehouse in the greater metropolitan area county in which the Property Work is located;
(d) The Stored Materials will shall be paid for in full with the funds to be disburseddisbursed by Broward Health to Contractor, and all lien rights or claims of the supplier will shall be released upon full payment;
(e) Lender Broward Health has or will shall have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The Stored Materials are insured insured, in the name of Broward Health, for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreement;
(g) The Broward Health’s lender (if any) has approved the payment for such Stored Materials, and the aggregate cost of Stored Materials stored at the Property Work is approved by the Construction Consultant Broward Health and its lender (if any) in writing; and, if
(h) If required by LenderBroward Health, the Construction Consultant Contractor shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements; and
(h) The aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the LoanWork.
Appears in 1 contract
Stored Materials. Lender (a) Lenders shall not be required to disburse any funds make advances of proceeds of the Loan for any materials, machinery building materials or other Personal Property furnishings not yet affixed to or incorporated into the Project Improvements, except for major building materials, equipment and furnishings approved by Administrative Agent which are stored on the Premises and intended to be incorporated into the Improvements (pursuant to the “Stored Materials”)Plans, unless the following conditions are satisfied:
and not until Administrative Agent shall have received (a) Borrower shall deliver to Lender bills of sale invoices or other evidence reasonably satisfactory to Lender of documentation evidencing the cost of, and, subject to the payment thereforof such materials, Borrower’s 's ownership thereof and the release of any right, title or lien in and to such Stored Materials;
respect thereof by any vendor, (b) The Stored Materials evidence that such materials are covered by the insurance policies required by this Agreement and are identified to the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvements;
(c) The Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender shall reasonably approve, and are protected against loss, theft and damage in a manner satisfactory acceptable to Lenderthe Construction Consultant and (c) evidence that advances made by Lenders for any such materials stored on the Premises pursuant to this paragraph do not, includingat any one time, if requested by Lenderexceed, storage in a bonded warehouse in the greater metropolitan area in which aggregate, $6,000,000, inclusive of the Property is located;amount requested.
(db) The Stored Materials will be paid for in full with the funds Lenders shall from time to be disbursedtime make Loan advances, and all lien rights or claims of the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 the terms of this Agreement;
(g) The aggregate cost of Stored Materials , for major building materials, equipment and furnishings approved by Administrative Agent, which are stored at locations off the Property is approved Premises acceptable to Administrative Agent prior to their incorporation into the Improvements pursuant to the Plans, provided that, in the case of each such advance, Administrative Agent shall have received (i) such security agreements, financing statements and other documents as it may require sufficient to create, perfect and protect a first lien on said materials, (ii) evidence that said materials are covered by the insurance policies required by this Agreement, (iii) a written statement from the xxxxxx of said materials to the effect that the Construction Consultant andmay inspect said materials at all reasonable times and (iv) evidence that advances made by Lenders for any such materials stored off the Premises pursuant to this paragraph do not, if required by Lenderat any one time, exceed, in the Construction Consultant aggregate, $4,000,000, inclusive of the amount requested. Each request for an advance of Loan proceeds for materials to be stored off the Premises shall certify constitute Borrower's representation to Administrative Agent and Lenders that it has inspected such Stored Materials said materials are (1) stored in a designated and they are in good condition secure area, and suitable for use that said materials will not be moved from the storage site except in connection with their delivery to the Project Improvements; andPremises and (2) reasonably anticipated to be incorporated into the Improvements within one hundred twenty (120) days of the date of the advance therefor. Borrower covenants to deliver to Administrative Agent within thirty (30) days of any such advance (x) paid bills and original warehouse receipts or other documents of title which correspond to the materials so purchased and stored off-site and (y) a certificate of Borrower to the effect that said materials are owned by Borrower outright, free and clear of all liens other than the lien held by Administrative Agent and that all of the terms of this paragraph have been complied with.
(hc) The aggregate cost Notwithstanding the foregoing provisions of Stored Materials this Section, Lenders shall from time to time make advances of Loan proceeds to pay the deposit on account of the purchase price for materials to be stored on or off the Property Premises pursuant to paragraphs (a) and (b) above, provided, however, that the maximum amount of such advances that may be outstanding at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loan$2,000,000.
Appears in 1 contract
Stored Materials. Lender shall not be required Disbursements for materials stored offsite in The Bahamas or delivered to disburse any funds for any materials, machinery or other Personal Property the site but not yet incorporated into the Project Improvements (the “Stored Materials”), unless ) shall be subject to Agent’s having received satisfactory evidence that the following conditions are satisfiedtrue:
(ai) Borrower shall deliver The Stored Materials are ready for installation and appropriate for purchase during the then current stage of Construction, unless otherwise approved in writing by Agent;
(ii) The Stored Materials are stored either (1) at the Project site, (2) in a bonded public warehouse or (3) any other facility or location acceptable to Lender bills of sale Agent, and such Stored Materials are protected in a manner acceptable to Agent against theft or other evidence reasonably satisfactory to Lender damage;
(iii) Ownership of the cost ofStored Materials for which Agent has previously disbursed funds has vested in Borrower free of all security interests except the liens evidenced by the Loan Documents and statutory Liens in favor of the warehouseman, and, subject and no other Person has asserted that it has any rights to the payment therefor, Borrower’s title or interest in and to such Stored Materials;
(biv) The Borrower has caused the Contractor and any other Person that possesses, holds or controls access to any Stored Materials are identified Materials, to execute and deliver to Agent a bailment letter in the Property and Borrowerform of either Exhibit G-1 or Exhibit G-2, are segregated so as to adequately give notice to all third parties of Borrower’s title in and applicable to such materials, and are components in substantially final form ready for incorporation into the Project Improvementssituation;
(cv) The Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender shall reasonably approve, and are protected against theft and damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is located;
(d) The Stored Materials will be paid for in full with the funds to be disbursed, and all lien rights or claims Without limiting any of the supplier will be released upon full payment;
(e) Lender foregoing provisions of this Section 3.2, Agent has or will have upon payment with disbursed funds a perfected, first first-priority security interest in the Stored MaterialsMaterials for which Agent or any other Person has previously disbursed funds;
(fvi) The While in storage, the Stored Materials are insured for an amount equal to their replacement costs in accordance with covered by insurance as required by Section 6.1 of this Agreement4.38;
(gvii) The aggregate cost materialmen have delivered lien waivers and invoices for the full amount of the Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it for which Agent or any other Person has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvementspreviously disbursed funds; and
(hviii) The aggregate cost of Architect or another party approved by Agent has provided a certification in form and substance satisfactory to Agent verifying the Stored Materials stored on are in conformance with the Property at any one time shall not exceed ten percent (10%) Plans and Specifications and containing the location of the maximum amount and a comprehensive inventory list of the Loan and the aggregate cost of such Stored Materials stored off based upon a physical inspection. Such certification shall be accompanied by digital pictures of such Stored Materials. The foregoing provisions are not intended to apply to disbursements of Loan proceeds which are made for the Property at purpose of making customary deposits which are required by certain vendors with respect to purchase orders of construction materials, so long as the same have been approved by Lender; provided, however, that if and when any one time materials are paid for in full by Borrower the provisions of this Section 3.2 above shall not exceed five percent (5%) of the maximum amount of the Loanapply.
Appears in 1 contract
Samples: Credit Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Stored Materials. Lender shall not Administrative Agent agrees that, subject to Xxxxxxxx’s compliance with all of the other requirements of this Agreement governing advances, Administrative Agent and the Lenders will advance proceeds of the Loan for materials to be required stored on site in a secure area or such other location reasonably acceptable to disburse any funds for any materials, machinery or other Personal Property not yet incorporated Administrative Agent and Administrative Agent’s Engineer prior to their incorporation into the Project Improvements (the “Stored Materials”)Improvements, unless the following conditions are satisfiedprovided that:
(ai) Borrower the costs of such stored materials are Building Loan Costs;
(ii) no monetary or material non-monetary default or Event of Default shall deliver to Lender then exist under this Agreement;
(iii) Administrative Agent shall have reasonably confirmed that such stored materials are in fact the kinds and quantities of materials for which such advance has been requested and contemplated by the Budget and the Plans and Administrative Agent’s Engineer has inspected such stored materials and has approved the identity, quality and quantity of same;
(iv) Administrative Agent has received executed conditional bills of sale or other evidence reasonably bills of lading (subject only to receipt of payment) satisfactory to Lender of the cost of, and, subject to the payment therefor, it evidencing Senior Borrower’s unencumbered title in and to such Stored Materialsstored materials;
(bv) The Stored Materials Senior Administrative Agent has been granted a perfected first lien or security interest, satisfactory to Senior Administrative Agent in its sole (but reasonable) discretion, in such stored materials prior to or simultaneous with it making any such advance, all of which shall be satisfactory to Administrative Agent;
(vi) such stored materials are identified fully insured in an amount and with an insurance company satisfactory to the Property Administrative Agent, in its sole (but reasonable) discretion, under a policy containing a standard New York mortgagee endorsement in favor of Senior Administrative Agent;
(vii) such stored materials are segregated, properly and Borrower, are segregated securely stored and clearly marked so as to adequately give notice to all third parties indicate the ownership of Borrower’s title in Senior Borrower and to such materialsthe security interest of Administrative Agent therein, and are components in substantially final form ready for incorporation into the Project Improvementsas determined by Administrative Agent;
(cviii) The Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender Administrative Agent shall reasonably approvehave received fully executed waivers of lien, and are protected against theft and damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse substantially in the greater metropolitan area in which form attached hereto as Exhibit B, as to all prior payments to the Property is located;
(d) The Stored Materials will be paid for in full with the funds contractor or supplier to whom such advances are to be disbursed, and all lien rights or claims of the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreement;
(g) The aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvementsmade; and
(hix) The aggregate Except as otherwise approved by Administrative Agent, advances for such stored materials shall not exceed (x) the cost of Stored Materials such stored on materials incurred or paid by Borrower to the Property producer or supplier of such materials without markup for administration or site management, allocation of overhead or other similar or overhead charges or fees, or (y) $3,000,000.00 in the aggregate at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loantime.
Appears in 1 contract
Stored Materials. Lender Owner shall not be required have the right to disburse any funds ---------------- approve or disapprove specifically, in its sole but reasonable judgement, all Disbursements for any materials, machinery stored materials whether stored on the Property or other Personal Property not yet incorporated into the Project Improvements offsite (the “"Stored Materials”"). Without limiting Owner's discretion, Owner may not approve a Disbursement for Stored Materials unless the following conditions are satisfiedDisbursement Request includes each of the following:
(a) Borrower shall deliver to Lender bills of sale or other evidence reasonably satisfactory to Lender Owner that the Stored Materials are included in the coverage of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materialsinsurance policies naming Owner as an additional insured;
(b) The evidence satisfactory to Owner from the seller or fabricator of the Stored Materials are identified to certifying that, upon payment, ownership of any Stored Materials located off the Property and Borrower, are segregated so as to adequately give notice to all (the "Offsite Materials") will vest in Owner free of any liens or claims of third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvementsparties;
(c) The evidence that the seller, supplier or fabricator acknowledges the Owner's right to enter the facility at reasonable times to inspect or remove any Offsite Materials
(d) either (i) evidence satisfactory to Owner that the Stored Materials are satisfactorily stored at on the Property or at in such other third-party owned and operated site as Lender shall reasonably approve, and a manner that they are protected against theft and damage in a manner or damage; or (ii) if the Stored Materials are Offsite Materials, (1) evidence satisfactory to Lender, including, if requested by Lender, storage Owner that the Offsite Materials are stored in a bonded warehouse or storage yard approved by Owner; and (2) Owner shall have received from Developer the original warehouse receipt. With Owner's prior written approval, Stored Materials may be stored in the greater metropolitan area yard or warehouse of the seller or fabricator, subject to satisfaction of conditions specified in which the Property is located;
paragraphs (da), (b) The Stored Materials will be paid for in full with the funds to be disbursedand (c) of this Section 5.6, and all lien rights or claims of provided further that Owner receives satisfactory evidence that the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The Stored Offsite Materials are insured for an amount equal protected against theft or damage and have been suitably identified as belonging to their replacement costs in accordance with Section 6.1 of this Agreement;
(g) The aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable Developer for use in connection with the Project Improvements; and
(h) The aggregate cost of Stored Project. In no event shall Owner be required to make Disbursements for Offsite Materials stored on until Owner has inspected and approved the Property at any one time shall not exceed ten percent (10%) of Offsite Materials or waived in writing the maximum amount of the Loan requirement for such inspection and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loanapproval.
Appears in 1 contract
Samples: Master Development Agreement (Grand Court Lifestyles Inc)
Stored Materials. Lender shall not be required Disbursements for materials stored offsite in the United States of America or delivered to disburse any funds for any materials, machinery or other Personal Property the site but not yet incorporated into the Project Improvements (the “Stored Materials”), unless ) shall be subject to Lender’s having received satisfactory evidence that the following conditions are satisfiedtrue:
(ai) Borrower shall deliver The Stored Materials are ready for installation and appropriate for purchase during the then current stage of Construction, unless otherwise approved in writing by Lender in its reasonable discretion;
(ii) The Stored Materials are stored either (1) at the Project site, (2) in a bonded public warehouse or (3) any other facility or location reasonably acceptable to Lender, and such Stored Materials are protected in a manner reasonably acceptable to Lender bills of sale against theft or other evidence reasonably satisfactory to Lender damage;
(iii) Ownership of the cost of, and, subject Stored Materials for which Lender has previously disbursed funds has vested in Borrower free of all security interests except the liens evidenced by the Loan Documents and no other Person has asserted that it has any rights to the payment therefor, Borrower’s title or interest in and to such Stored Materials;
(biv) The Borrower has caused the Contractor and any other Person that possesses, holds or controls access to any Stored Materials are identified Materials, to execute and deliver to Lender a bailment letter in the Property and Borrowerform of either Exhibit D or Exhibit E, are segregated so as to adequately give notice to all third parties of Borrower’s title in and applicable to such materials, and are components in substantially final form ready for incorporation into the Project Improvementssituation;
(cv) The Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender shall reasonably approve, and are protected against theft and damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is located;
(d) The Stored Materials will be paid for in full with the funds to be disbursed, and all lien rights or claims Without limiting any of the supplier will be released upon full payment;
(e) foregoing provisions of this Section 3.2, Lender has or will have upon payment with disbursed funds a perfected, first first-priority security interest in the Stored MaterialsMaterials for which Lender or any other Person has previously disbursed funds;
(fvi) The Stored Materials are insured for an amount equal to their replacement costs in accordance with covered by insurance as required by Section 6.1 of this Agreement5.4;
(gvii) The aggregate cost materialmen have delivered lien waivers and invoices for the full amount of the Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it for which Lender or any other Person has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvementspreviously disbursed funds; and
(hviii) The aggregate cost Architect or another party approved by Lender has provided a certification in form and substance satisfactory to Lender verifying the stored materials are in conformance with the Plans and Specifications and containing the location of and a comprehensive inventory list of such Stored Materials stored on based upon a physical inspection, such certification shall be accompanied by digital pictures of such Stored Materials. The foregoing provisions are not intended to apply to disbursements of Loan proceeds which are made for the Property at any one time purpose of making customary deposits which are required by certain vendors with respect to purchase orders of construction materials, so long as the same have been approved by Lender which approval shall not exceed ten percent (10%) be unreasonably withheld; provided, however, that if and when any materials are paid for in full by Borrower the provisions of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time this Section 3.2 above shall not exceed five percent (5%) of the maximum amount of the Loanapply.
Appears in 1 contract
Samples: Development Loan and Security Agreement (Equinix Inc)
Stored Materials. Lender shall not be required to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfied:
(a) Borrower Except as provided in this Section 2.1.5, the Agent shall deliver in no event or under any circumstances have any obligation to Lender bills of sale or other evidence reasonably satisfactory to Lender make any disbursement of the cost ofLoan for materials which are stored off-site unless the Agent agrees, andin its sole and absolute discretion, subject to make the payment therefor, Borrower’s title in and to such Stored Materials;same.
(b) The Stored Materials are identified to Agent and the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvements;
(c) The Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender Lenders shall reasonably approve, and are protected against theft and damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is located;
(d) The Stored Materials will be paid for in full with the funds to be disbursed, and all lien rights or claims of the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The Stored Materials are insured for an amount equal to their replacement costs make Advances in accordance with Section 6.1 this Agreement to pay for Hard Costs actually incurred for materials not yet incorporated in the Improvements but stored on site, which materials are required in connection with the construction of this Agreement;
the Improvements, provided that: (gi) The aggregate cost such materials are in accordance with the Plans and Specifications (except for non-material deviations therefrom that do not adversely affect the use of Stored Materials the Improvements for their intended purpose or their value) approved by the Agent and the Construction Consultant; (ii) such materials are securely stored at on site, properly inventoried, and clearly stenciled or otherwise marked to indicate that they are the property of the Property is approved Owner; (iii) such materials are insured against casualty, loss and theft as required by Section 8.1.1 hereof; (iv) the Property Owner either owns or will, after the payment of the bills and invoices therefor (which payment in full shall occur promptly after the disbursement of the Loan for such materials), own such materials free and clear of all Liens and encumbrances of any nature whatsoever other than Permitted Encumbrances, which ownership shall be established contemporaneously with or promptly after such disbursement by evidence reasonably satisfactory to the Agent; (v) subject to Sections 2.1.3, 2.1.4 and 7.1.10, the aggregate amount of such disbursements for such materials shall in no event at any time exceed the actual Hard Costs incurred by the Borrower for such materials as verified by the Construction Consultant and, pursuant to the provisions of this Agreement; (vi) the aggregate amount of such disbursements of the Loan for such materials which are stored on-site and which is outstanding at any given time shall in no event exceed $2,000,000; (vii) if required by Lenderthe Agent, the Architect or the Construction Consultant shall certify that it has inspected such Stored Materials said materials and that they are in good condition and suitable for use in connection with the Project Improvements; andProject.
(hc) The Agent and the Lenders shall from time to time make disbursements in accordance with the terms of this Agreement for the purchase of certain finally assembled, fully fabricated major building materials, which are ready for delivery to the Project but are temporarily stored at off-site locations other than the Project (collectively, “Major Building Materials”), approved by the Construction Consultant (acting reasonably) prior to the delivery to the Project or incorporation into the Improvements of such Major Building Materials; provided, however, that in the case of each such disbursement, the conditions contained in clause (b) above have been satisfied with respect to the Major Building Materials, other than the requirement of clauses (ii) and (vi) contained therein with respect to the storage of such materials on site, and the Agent shall have received (i) a written statement from the manufacturer or xxxxxx of such Major Building Materials (or a provision in the purchase order therefor to such effect) that the Agent, the Construction Consultant and either of their agents may fully inspect such Major Building Materials at all reasonable times upon reasonable advance notice and (ii) evidence that the aggregate cost amount of Stored such disbursement for Major Building Materials stored does not at any time exceed $15,000,000.
(d) The Agent shall have the right in its sole discretion, but not the obligation, to request that the Borrower deliver or cause to be delivered to the Agent the following documents within ten (10) Business Days after the date on which any Advance for Major Building Materials is made: (i) bills of lading, warehouse receipts, delivery receipts or other evidence of title with respect to the Major Building Materials for which such advance is made, which shall be in form and substance reasonably satisfactory to the Agent in all respects and (ii) a certificate of the Borrower in form and substance reasonably acceptable to the Agent in all respects to the effect that such Major Building Materials are owned by the Property Owner outright, free and clear of all Liens, security interest and encumbrances (other than those created under the Senior Loan Documents and the Permitted Encumbrances), and that all of the terms of this Section 2.1.5 have been complied with. No Advance for Major Building Materials shall be made unless the Major Building Materials covered thereby are stored at a location, other than the Project, reasonably acceptable to the Agent and the Construction Consultant, and are (A) stored in a designated and secure area, and said Major Building Materials will not be transported to another location except in connection with their delivery to the Project, (B) effectively segregated (to the extent possible) from all other materials of whatever kind located at the off-site location in question and (C) reasonably anticipated to be incorporated into the Project within one hundred and eighty (180) days of the Advance therefor.
(e) Disbursements for all stored materials, whether or not stored at the Project, shall not exceed at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and $17,000,000 in the aggregate cost of Stored Materials stored off for the Property at any one time shall not exceed five percent (5%) of the maximum amount of the LoanProject.
Appears in 1 contract
Samples: Mezzanine Construction Loan Agreement (Prime Group Realty Trust)
Stored Materials. Lender shall not be required to disburse any funds for any materials, furnishings, fixtures, machinery or other Personal Property equipment not yet incorporated into the Project Land or Improvements (the “"Stored Materials”"), except with the prior written consent of Lender which shall not be unreasonably withheld and subject to Lender's receipt of a perfected first security interest in such Stored Materials. Any disbursement for the cost of Stored Materials shall be subject to retainage in an amount equal to ten percent (10.0%) for the first 50% of the total price of the Construction Contract unless otherwise agreed by Lender (thereafter no retainage shall be required) and shall be contingent upon the following conditions are satisfiedLender receiving satisfactory evidence that:
(a) Borrower the Stored Materials are ready for incorporation into the Land or the Improvements and shall deliver to Lender bills be so incorporated within a period of sale or other evidence reasonably satisfactory to Lender of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materials30 days;
(b) The Stored Materials are identified to the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvements;
(c) The Stored Materials are stored at the Property Land, at a site controlled by the Borrower, or at such other third-party owned and operated site as the Lender shall reasonably approve, and are fully insured and protected against theft and damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is locateddamage;
(dc) The the Stored Materials have been paid for in full or will be paid for in full with the retainage funds to be disbursed, disbursed and all lien rights or claims of the supplier have been released or will be released upon full paymentpayment with disbursed funds;
(ed) the Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;; and
(fe) The the Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreement;
(g) The aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements; and
(h) The aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loancost.
Appears in 1 contract
Samples: Construction Loan Agreement (American Skiing Co /Me)
Stored Materials. Lender will make Disbursements for the ---------------- cost of Stored Materials (not including any profit or overhead of General Contractor or any Contractor or Subcontractor (other than the manufacturer or supplier of such materials) payable in respect of such Stored Materials, for which a Disbursement shall be made only after incorporation of the Stored Materials into the Project) subject to the other provisions of this Agreement, and further provided that Lender shall not be required have received the following, in form and substance satisfactory to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfiedLender:
(a) Borrower shall deliver to Lender bills of sale or other evidence reasonably satisfactory to Lender for materials stored on the Premises, invoices indicating actual cost of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materials, not including profit and overhead;
(b) The evidence that the Stored Materials are identified to appropriate for purchase during the Property and Borrower, are segregated so as to adequately give notice to all third parties then current stage of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvementsconstruction;
(c) The evidence that the Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender shall reasonably approve, have been paid for and are protected against theft and damage in a manner satisfactory owned by (or upon payment of the amount to Lender, including, if requested by Lender, storage in a bonded warehouse in be disbursed pursuant to the greater metropolitan area in which the Property is located;
(d) The Stored Materials will applicable Request for Disbursement shall be paid for in full with the funds to be disbursed, and owned by) Borrower free of all lien rights or claims of the supplier will be released upon full paymentvendor or any third party;
(d) evidence satisfactory to Lender that the Stored Materials are securely stored on-site or in a bonded warehouse or storage yard approved by Lender and, if stored in a warehouse or storage yard, the warehouse or storage yard has been notified that Lender has a security interest in the subject stored materials and the original warehouse receipt;
(e) Lender has for those stored materials stored off-site, a certificate or will have upon payment with disbursed funds a perfectedbinder of insurance from Borrower or the supplier, first priority security interest in fabricator or other subcontractor, covering the Stored Materials;Materials against loss, theft and damage in a manner and amount satisfactory to Lender, naming Lender as a loss-payee; and
(f) The evidence of filing of any UCC-1 financing statement or statements required to perfect Lender's lien with respect to such Stored Materials Materials, and satisfactory assurance to Lender that such materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreement;
(g) The aggregate cost of Stored Materials stored at the Property is approved covered by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements; and
(h) The aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) security agreement provisions of the maximum amount Deed of the Loan Trust and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loanthat Lender has a perfected security interest in such materials.
Appears in 1 contract
Samples: Construction Loan Agreement (Boston Properties Inc)
Stored Materials. Lender shall not be required to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfied:
(a) Borrower Lender shall deliver have the right to Lender bills of sale approve or other evidence reasonably satisfactory to Lender of the cost ofdisapprove specifically, andin its sole judgment, subject to the payment therefor, Borrower’s title in and to such all disbursements for Stored Materials;. Without limiting Lender’s approval rights as set forth in the preceding sentence, Lender will not approve disbursements for Stored Materials until Borrower complies with the conditions set forth in Section 4.8(b) below.
(b) The As a condition precedent to the disbursement for Stored Materials, Borrower shall supply to Lender: (i) evidence satisfactory to Lender that the Stored Materials are identified included in the coverage of the insurance policies required by Section 6.19; (ii) evidence satisfactory to Lender from the Property and Borrowerseller or fabricator of the Stored Materials that, upon payment, ownership thereof will vest in Borrower free of any liens or claims of third parties; (iii)(A) evidence satisfactory to Lender that the Stored Materials are segregated so as satisfactorily stored on the Premises to adequately give notice protect against theft or damage, or (B) if the Stored Materials are not stored on the Premises, (1) evidence satisfactory to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into Lender that the Project Improvements;
(c) The Stored Materials are stored at in a bonded warehouse or storage yard approved by Lender, and the Property warehouse or at such other third-party owned yard has been notified that Lender has a security interest in the subject Stored Materials, and operated site as (2) Lender shall reasonably approvehave received from Borrower the original warehouse receipt. With Lender’s prior written approval, Stored Materials may be stored in the yard or warehouse of the seller or fabricator, subject to satisfaction of conditions (i) and (ii) in this Section 4.8(b), and provided further that Lender receives satisfactory evidence that the Stored Materials are protected against theft and damage in a manner satisfactory or damage, have been suitably identified as belonging to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is located;
(d) The Stored Materials will be paid for in full with the funds to be disbursed, and all lien rights or claims of the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreement;
(g) The aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable Borrower for use in connection with the Project Improvements; and
(h) The aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) and that such seller or fabricator has been notified of the maximum amount security interest of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the LoanLender therein.
Appears in 1 contract
Samples: Construction Loan Agreement (Owens Realty Mortgage, Inc.)
Stored Materials. Lender Lenders shall not be required to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfiedAgent receives reasonably satisfactory evidence that:
(a) Borrower shall deliver the Stored Materials are, or will be, upon payment with disbursed funds, owned by Borrower, as evidenced, to Lender the extent required by Agent, by bills of sale sale, certificates of title or other evidence reasonably satisfactory to Lender of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materialsevidence;
(b) The the Stored Materials are identified fabricated or unfabricated components conforming to the Property Plans and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in Specifications and to such materials, and are components in substantially final form ready for incorporation into the Project ImprovementsProject;
(c) The the Stored Materials are properly identified and adequately protected, as evidenced by a letter from Borrower, the General Contractor, the appropriate Major Contractor or Major Subcontractor or another Person reasonably acceptable to Agent;
(d) the Stored Materials are stored at the Property Premises or at such other third-party owned and operated site as Lender Agent shall reasonably approve, which site has been specifically identified to Agent, and are protected against theft and damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is locateddamage;
(de) The the Stored Materials will be paid for in full (less the Retainage, if any) with the funds to be disbursed, and all lien rights or claims of the supplier will be released upon simultaneously with full paymentpayment of all amounts required to be paid for such Stored Materials and all amounts, if any, required to be paid to the supplier thereof with respect to the installation thereof (including any Retainage, if any);
(ef) Lender Agent has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials (and with respect to Stored Materials not stored at the Premises, Borrower shall execute and deliver to Agent any and all Uniform Commercial Code financing statements or similar filings required by the laws of any jurisdiction necessary to grant Agent such security interest in such Stored Materials);
(fg) The the Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 2.05 of this Agreementthe Project Loan Mortgage;
(gh) The aggregate the cost of Stored Materials not stored at the Property Premises in the aggregate at any time is not more than $25,000,000.00, or such greater amount as may be reasonably approved by the Construction Consultant Agent; and, if required by Lender,
(i) the Construction Consultant shall certify that it has inspected such have confirmed the accuracy of the letter required in subparagraph (c) above, and in connection therewith the Construction Consultant may, but shall not be required to, visit the site of and inspect the Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements; and
(h) The aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the LoanBorrower’s expense.
Appears in 1 contract
Stored Materials. Lender shall not be required to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfied:
(a) Borrower shall deliver to Lender bills of sale or other evidence reasonably satisfactory to Lender of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materials;
(b) The Stored Materials are identified to the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvements;
(c) The Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender shall reasonably approve, and are protected against theft and damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is located;
(d) The Stored Materials will be paid for in full with the funds to be disbursed, and all lien rights or claims of the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreement;
(g) The aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, the Construction Consultant shall 37 certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements; and
(h) The aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the Loan.
Appears in 1 contract
Stored Materials. Lender shall not be required to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project Improvements (the “Stored Materials”), unless the following conditions are satisfied:
(a) 3.14.1 Borrower shall deliver to Lender Agent bills of sale or other evidence reasonably satisfactory to Lender Agent of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materials;
(b) 3.14.2 The Stored Materials are identified to the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvements;
(c) 3.14.3 The Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender Agent shall reasonably approve, and are protected against theft and damage in a manner reasonably satisfactory to LenderAgent, including, if requested by LenderAgent, storage in a bonded warehouse in the greater metropolitan area county in which the Property is located;
(d) 3.14.4 The Stored Materials will be paid for in full with the funds to be disbursed, and all lien rights or claims of the supplier will be released upon full payment;
(e) Lender 3.14.5 Agent has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) 3.14.6 The Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreementhereof;
(g) The aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if 3.14.7 If required by LenderAgent, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements; and;
(h) The aggregate cost of Stored Materials stored on the Property at any one time 3.14.8 Lender shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of be required to make Advances for Stored Materials stored off the Property at any one time in excess of $5,000,000.00 unless otherwise approved by Agent acting in its reasonable discretion exercised in good faith; and
3.14.9 Borrower shall not exceed five percent have provided to Agent a true and correct list of all such Stored Materials identifying by type, quantity and location (5%) of the maximum amount of the Loani.e. onsite or offsite).
Appears in 1 contract
Stored Materials. Lender shall not be required have the right to disburse any funds approve or disapprove specifically, in its sole but reasonable judgment, all disbursements for any materials, machinery stored materials whether stored on the Property or other Personal Property not yet incorporated into the Project Improvements offsite (the “"Stored Materials”"). Without limiting Lender's discretion, Lender will not approve an Advance for Stored Materials unless the following conditions are satisfiedrequest includes each of the following:
(ai) Borrower shall deliver to Lender bills of sale or other evidence reasonably satisfactory to Lender of that the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materials;
(b) The Stored Materials are identified to included in the Property coverage of insurance policies naming Lender as an additional insured and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into that the Project Improvements;
(c) The Stored Materials are satisfactorily stored at on the Property or at in such other third-party owned and operated site as Lender shall reasonably approve, and a manner that they are protected against theft and or damage in a manner satisfactory to Lender, including, if requested by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is locatedextent reasonably necessary;
(dii) The evidence satisfactory to Lender from the transferor or fabricator or the Stored Materials certifying that, upon payment, ownership thereof will be paid for vest in full with the funds to be disbursed, and all lien rights Lender free of any liens or claims of the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials;
(f) The Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 of this Agreement;
(g) The aggregate cost of Stored Materials stored at the Property is approved by the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvementsthird parties; and
(hiii) The aggregate cost of evidence that the transferor, supplier or fabricator acknowledges the Lender's right to enter the facility at reasonable times to inspect or remove any Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored located off the Property at any one time shall not exceed five percent (5%) the "Offsite Materials"); With Lender's prior written approvals Stored Materials may be stored in the yard or warehouse of the maximum amount transferor or fabricator, subject to satisfaction of conditions (i), (ii) and (iii) in this paragraph and provided further that Lender receives satisfactory evidence that the Stored Materials are protected against theft or damage, have been suitably identified as belonging to Borrower for use in the Project, and that such Transferor or manufacturer has been notified of the Loansecurity interest of Lender therein. In no event shall Lender be required to make an Advance for Stored Materials until Lender has inspected and approved the Stored Materials or waived in writing the requirement for such inspection and approval. If Lender fails to inspect or waive approval within thirty (30) days of request for storage, such inspection or waiver shall be deemed made or given by Lender.
Appears in 1 contract
Samples: Land Acquisition and Development Loan Agreement (Transeastern Properties Inc)
Stored Materials. Lender Lenders shall not be required to disburse any funds make advances of ---------------- proceeds of the Loan for any materials, machinery building materials or other Personal Property furnishings not yet affixed to or incorporated into the Project Improvements, except as provided in this Section. Lenders shall make Loan Advances, in accordance with the terms of this Agreement, for major building materials approved by Administrative Agent which are stored on the Premises and intended to be incorporated into the Improvements (pursuant to the “Stored Materials”)Plans, unless the following conditions are satisfied:
provided Administrative Agent shall have received (a) Borrower shall deliver to Lender bills of sale or and other evidence reasonably satisfactory to Lender documentation evidencing payment in full of the cost of, and, subject to the payment thereforsuch materials, Borrower’s 's ownership thereof and the release of any right, title or lien in and to such Stored Materials;
respect thereof by any vendor, (b) The Stored Materials evidence that such materials are covered by the insurance policies required by this Agreement and are identified to the Property and Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvements;
(c) The Stored Materials are stored at the Property or at such other third-party owned and operated site as Lender shall reasonably approve, and are protected against loss, theft and damage in a manner satisfactory acceptable to Lenderthe Construction Consultant and (c) evidence that advances made by Lenders for any materials stored on the Premises do not, includingat any one time, if exceed, in the aggregate, $10,000,000, inclusive of the amount requested. Lenders shall make Loan advances, in accordance with the terms of this Agreement, for fully-fabricated major building materials approved by Administrative Agent, which are stored at locations off the Premises (including on the land owned by Borrower or its Affiliates adjacent to the Premises (the "Neighboring Premises")) prior to their incorporation into the Improvements pursuant to the Plans, provided that, in the case of each such advance, Administrative Agent shall have received (i) such security agreements, financing statements and other documents as Administrative Agent may require sufficient to create, perfect and protect a first lien on said materials, (ii) evidence that said materials are covered by the insurance policies required by this Agreement, (iii) a written statement from the xxxxxx of said materials (in the event the owner of the storage location is other than Borrower) to the effect that Administrative Agent and the Construction Consultant may freely inspect said materials at all reasonable times (Borrower hereby agreeing that Administrative Agent and the Construction Consultant may freely inspect said materials stored on the Premises or other property of Borrower at reasonable times), (iv) evidence that advances made by Lenders for said materials stored off the Premises do not, at any one time, exceed, in the aggregate, $10,000,000, inclusive of the amount requested by Lenderand (v) evidence that said materials stored off the Premises in locations other than the Neighboring Premises do not exceed, storage in the aggregate, $2,500,000, inclusive of the amount requested. Each request for an advance of Loan proceeds for materials to be stored off-site shall constitute Borrower's representation to Lenders that said materials are (1) stored in a bonded warehouse designated and secure area, conspicuously marked to show that they are the subject of a security interest held on behalf of Lenders, and that said materials will not be moved except in connection with their delivery to the greater metropolitan area Premises, (2) effectively segregated from all other materials of whatever kind located at the off-site location in which the Property is located;
question and (d3) The Stored Materials will be paid for in full with the funds reasonably anticipated to be disbursedincorporated into the Improvements within one hundred twenty (120) days of the date of the advance therefor. Borrower covenants to deliver to Administrative Agent within ten (10) days of any such advance (x) paid bills or other documents of title which correspond to the materials so purchased and stored off-site, (y) evidence that title to said materials has passed to Borrower outright, and all that no lien rights or claims of the supplier will be released upon full payment;
(e) Lender has or will have upon payment with disbursed funds be filed or claimed by the seller in connection therewith and (z) a perfectedcertificate of Borrower to the effect that said materials are owned by Borrower outright, first priority security interest in free and clear of all liens other than the Stored Materials;
(f) The Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 6.1 lien held on behalf of Lenders and that all of the terms of this Agreement;
Section have been complied with (g) The aggregate cost the representations set forth above and the statements contained in such certificate shall be deemed to be "representations and warranties" of Stored Materials stored at Borrower with the Property is approved same force and effect as if they had been set forth in Article V of this Agreement and the accuracy thereof shall be subject to independent verification by Administrative Agent and the Construction Consultant and, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials and they are in good condition and suitable for use in connection with the Project Improvements; and
(h) The aggregate cost of Stored Materials stored on the Property at any one time shall not exceed ten percent (10%) of the maximum amount of the Loan and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent (5%) of the maximum amount of the LoanConsultant).
Appears in 1 contract
Samples: Building Loan Agreement (Federal Realty Investment Trust)
Stored Materials. Lender (1) The Lenders shall not be required advance the proceeds of Loans with respect to disburse any funds for any materials, machinery or other Personal Property materials and equipment that are included in the Budget and are not yet incorporated into the Improvements as of the date of the applicable Loans, but are temporarily stored at the Project Improvements (so long as the “Stored Materials”), unless Administrative Agent shall have received the following conditions are satisfieditems, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) evidence that Borrower shall deliver has an obligation under the applicable contract, subcontract or purchase order to Lender bills of sale or other evidence reasonably satisfactory pay for such materials and equipment prior to Lender of the cost of, and, subject to the payment therefor, Borrower’s title in and to such Stored Materialstheir installation;
(b) The Stored Materials evidence that the ownership of such materials and equipment is vested in Borrower free of any liens and claims of third parties, including, without limitation, bills of sale and conditional lien waivers from the respective contractor, subcontractor or vendor and that such material and equipment are identified clearly marked to indicate the Property and ownership thereof by Borrower, are segregated so as to adequately give notice to all third parties of Borrower’s title in and to such materials, and are components in substantially final form ready for incorporation into the Project Improvements;
(c) The Stored Materials evidence that such stored materials are stored at included within the Property coverages of insurance policies carried by Borrower or at such proof of other third-party owned and operated site as Lender insurance (which shall reasonably approve, and are protected against theft and damage in include a manner satisfactory to Lender, including, if requested standard mortgagee endorsement or its equivalent) which has been approved by Lender, storage in a bonded warehouse in the greater metropolitan area in which the Property is locatedAdministrative Agent;
(d) The Stored Materials will be paid for in full with evidence acceptable to the funds to be disbursedAdministrative Agent and the Construction Consultant that the stored materials are reasonably protected against vandalism (casualty), and all lien rights theft or claims of the supplier will be released upon full paymentdamage;
(e) Lender has or will have upon payment with disbursed funds a perfectedevidence that Loans made by the Lenders for said materials do not, first priority security interest at any one time, exceed, in the Stored Materialsaggregate, $10,000,000, inclusive of the amount requested;
(f) The Stored Materials are insured for an amount equal evidence that the Administrative Agent (on behalf of the Lenders) has a perfected first security interest in such material prior to their replacement costs in accordance or simultaneous with Section 6.1 the making of this Agreementsuch Loans;
(g) The aggregate cost of Stored Materials stored at evidence acceptable to the Property is approved by Administrative Agent and the Construction Consultant andas to the identity, if required by Lender, the Construction Consultant shall certify that it has inspected such Stored Materials quality and they are in good condition and suitable for use in connection with the Project Improvementsquantity of same; and
(h) The aggregate cost evidence that all other applicable requirements and conditions with respect to such advance of Stored Materials Loan proceeds have been satisfied.
(2) Unless otherwise approved by the Administrative Agent, the Lenders shall not be required to make any Loans with respect to any materials or equipment unless and until such materials and equipment are delivered to the Project or incorporated into the Improvements. Notwithstanding the foregoing, the Lenders shall make Loans with respect to materials, equipment and parts that are included in the Budget and are not yet incorporated into the Improvements as of the date of the applicable Loans, but are temporarily stored at sites other than the Project so long as the Administrative Agent shall have received the following items, each in form and substance satisfactory to the Administrative Agent:
(a) satisfaction of the requirements set forth in Section 4.8(1)(a), (b), (d), (g) and (h) with respect to any such materials, equipment and parts;
(b) evidence that upon payment the ownership of such fabricated materials, equipment and parts is vested in Borrower free of any liens and claims of third parties, including, without limitation, bills of sale and conditional lien waivers from the respective supplier and UCC searches with respect to the respective supplier;
(c) evidence that the materials, equipment and parts are under the control of the applicable supplier and are being kept at bonded warehouse sites or otherwise stored in a designated and secured area satisfactory to the Administrative Agent and the Construction Consultant, in each case in the U.S.A. and reasonably approved by the Administrative Agent and the Construction Consultant; and that such materials, equipment and parts shall have been clearly designated, marked or tagged to indicate ownership by Borrower and the security interest of the Administrative Agent (on behalf of the Property Lenders) therein;
(d) evidence that advances made by the Lenders for said fabricated materials, equipment and parts do not, at any one time shall not exceed ten percent (10%) time, exceed, in the aggregate, $5,000,000, inclusive of the maximum amount requested, for such materials, equipment and parts stored in the U.S.A.; except that (i) Borrower may store up to $5,000,000 of curtain wall materials currently stored off-site as of the Loan Closing Date in Mexico (so long as all other requirements set forth in this Section 4.8(2) regarding off-site stored materials are satisfied) and (ii) Borrower may store up to $5,000,000 of structural steel currently stored off-site as of the Closing Date elsewhere in the United States;
(e) evidence that the Administrative Agent (on behalf of the Lenders) has a perfected first security interest (i.e., Uniform Commercial Code filings or other applicable filings) in such materials, equipment and parts prior to or simultaneous with the making of such Loans, which requirement shall, if requested by the Administrative Agent in connection with the first advance for property stored in the applicable state (and in connection with any other advance in such state when the Administrative Agent reasonably believes that the collateral is substantially different from the type of collateral covered by the first opinion), be supported by the opinion of a local counsel in the state where the applicable equipment and parts are stored; and
(f) the Construction Consultant and/or the Administrative Agent shall have the right to inspect such materials, equipment and parts and the aggregate cost of Stored Materials stored off the Property at any one time shall not exceed five percent locations where such equipment and parts are stored.
(5%3) Except as otherwise set forth on Schedule 4.8 attached hereto, Borrower represents and warrants that, as of the maximum amount of Closing Date, there are no other materials that will be incorporated into the LoanProject stored either at the Project or at sites other than the Project.
Appears in 1 contract
Samples: Construction Loan Agreement (Maguire Properties Inc)
