CONSTRUCTION LOAN AGREEMENT
THIS AGREEMENT, made as of September 5, 1991, by and between 111
PARTNERS, a California general partnership ("Borrower"), and FAIR, XXXXX AND
COMPANY, INCORPORATED, a Delaware corporation ("Lender"),
W I T N E S S E T H:
Recital of Facts:
A. Borrower owns the real property described in Exhibit A attached
hereto and made a part hereof ("Property").
B. Borrower proposes to construct on the Property the improvements
described in Exhibit B attached hereto and made a part hereof ("Improvements")
in accordance with the plans and specifications described in Exhibit B, as such
plans and specifications may be amended in accordance with this Agreement
("Plans and Specifications"), and has requested a loan from Lender for the
purpose of constructing the Improvements on the Property in accordance with the
Plans and Specifications.
NOW, THEREFORE, Borrower and Lender agree as follows:
ARTICLE 1
Loan
1.1 Loan. Upon and subject to the terms of this Agreement, Lender
agrees to lend to Borrower and Borrower agrees to borrow from Lender the
principal sum of three million dollars ($3,000,000) ("Loan") to finance the
construction of the Improvements and for the other purposes provided in the Loan
Documents (as hereinafter defined).
1.2 Loan Documents. Borrower shall deliver to Lender concurrently with
execution and delivery of this Agreement the documents, properly executed and in
recordable form if requested by Lender, described in Exhibit C attached hereto
and made a part hereof (collectively "Loan Documents"). The terms "Note" and
"Deed of Trust" shall have the meanings defined in Exhibit C.
1.3 Effective Date. The date of the Loan Documents is for reference
purposes only. The effective date ("Effective Date") of delivery and transfer to
Lender of the security under the Loan Documents and of Borrower's and Lender's
obligations under the Loan Documents is the date the Deed of Trust is recorded
in the office of the County Recorder of the County where the Property is
located.
1.4 Formation and Organizational Documents. Borrower has previously
delivered to Lender the following formation and organizational documents:
Partnership Agreement dated June 1, 1990, among Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx
and Xxxxxx X. Xxxx and Statement of Partnership dated August 26, 1991, and
recorded on August 27, 1991, as Instrument No. 91-054475 of Official Records of
Marin County. Borrower hereby certifies to Lender that (a) the foregoing
documents are all of the relevant formation and organizational documents of
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Exhibit 10.14
Borrower; (b) such documents remain in full force and effect; and (c) such
documents have not been amended or modified.
1.5 Opinion of Legal Counsel. Borrower shall cause to be furnished to
Lender on the Effective Date, at Borrower's expense, an opinion of legal counsel
approved by Lender covering such matters relating to Borrower and the Loan
Documents as Lender may request.
1.6 Acceleration Upon Loss of Security. If at any time the Deed of
Trust ceases to be a valid first lien upon the Property and the Improvements,
all sums remaining unpaid and owing to Lender under the Note and the other Loan
Documents shall automatically become immediately due and payable and Lender's
obligation to disburse the remaining portion of the Loan which is then
undisbursed, if any, shall terminate.
1.7 Tax Service. Lender is authorized to secure, at Borrower's expense,
a tax service contract which shall provide tax information on the Property to
Lender for the term of the Loan.
1.8 Management of Property. Borrower shall not enter into any agreement
providing for the management, leasing or operation of the Property or the
Improvements without the prior written consent of Lender.
1.9 Further Encumbrance. Without the prior written consent of Lender,
Borrower shall not receive any other financing for the development of the
Property or the construction of the Improvements and shall not further encumber
the Property or the Improvements, except as permitted by and in compliance with
the Note.
ARTICLE 2
Disbursement
2.1 Conditions Precedent. Lender shall not be obligated to make any
disbursements or take any other action under the Loan Documents unless all of
the following conditions precedent are satisfied at the time of such action:
(a) There exists no Default, as defined this Agreement, or
default or event of default as defined in any of the other Loan
Documents, or event, omission or failure of condition which would
constitute such a default or event of default after notice or lapse of
time, or both; and
(b) The undisbursed Loan proceeds, together with all sums (if
any) to be provided by Borrower as shown in Exhibit D attached hereto
and made a part hereof, shall at all times be not less than the amount
which Lender from time to time determines reasonably necessary to: (i)
pay, through final completion, all costs of development, construction
and leasing of the Property and the Improvements in accordance with the
Loan Documents; (ii) pay all sums which may accrue under the Loan
Documents through final completion of the Improvements; and (iii)
enable Borrower to perform and satisfy all of the covenants of Borrower
contained in the Loan Documents through final completion of the
Improvements. If Lender determines at any time that such funds are not
sufficient for such purposes, Borrower may satisfy this
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condition by depositing with Lender the amount of such deficiency in
the Account (as hereinafter defined) within five (5) days after
Lender's written demand; and
(c) Borrower has delivered to Lender all of the Loan Documents
and all other documents, instruments, policies, and forms of evidence
or other materials requested by Lender pursuant to this Agreement or
any of the other Loan Documents.
2.2 Account. If required by Lender, a non-interest bearing demand
deposit account in Borrower's and Lender's names ("Account") will be opened by
Lender with a bank selected by Lender and administered in accordance with this
Agreement. The proceeds of the Loan and Borrower's Funds (as hereinafter
defined), when qualified for disbursement, shall be deposited into the Account,
if opened, or otherwise disbursed to or for the benefit or account of Borrower,
as determined by Lender, under the terms of this Agreement.
2.3 Borrower's Funds. Except as otherwise provided in this Agreement,
all funds which are deposited with Lender pursuant to section 2.1(b) hereof
("Borrower's Funds") or any other provision of the Loan Documents shall be
deposited in the Account, and controlled by Lender, for disbursement under this
Agreement.
2.4 Pledge and Assignment. As security for performance of Borrower's
obligations under the Loan Documents, Borrower irrevocably pledges and assigns
to Lender, and grants to Lender a security interest in, all monies at any time
deposited in the Account.
2.5 Disbursement. Subject to the conditions set forth in section 2.1
hereof, the proceeds of the Loan and Borrower's Funds shall be disbursed in
accordance with Exhibit E attached hereto and made a part hereof. Disbursements
made after the deposit of Borrower's Funds shall be made from Borrower's Funds
until depleted.
2.6 Disbursed Funds. All disbursements of the Loan and Borrower's Funds
shall be held by Borrower in trust and applied by Borrower solely for the
purposes for which the funds have been disbursed. Lender is not obligated to
monitor or determine Borrower's use or application of such disbursements.
2.7 Disbursement Authorization. Disbursements hereunder may be made by
Lender to the Account or disbursed to or for the benefit or account of Borrower,
as determined by Lender, upon the written request of any one (1) of the
following persons, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx, or Xxxxxx X. Xxxx, who are
authorized to request disbursements until written notice of Borrower's
revocation of such authority is received by Lender.
ARTICLE 3
Construction
3.1 Commencement and Completion. Borrower shall commence construction
of the Improvements without delay immediately after, but not before, the
Effective Date, shall diligently continue construction to completion, and shall
complete
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construction of the Improvements (other than the interior improvements for which
Lender is responsible pursuant to the Lease (the "Lease") dated September 5,
1991, between Borrower, as landlord, and Lender, as tenant) on or before April
1, 1992.
3.2 Construction. Borrower shall construct the Improvements in a good
and workmanlike manner in accordance with the Plans and Specifications and the
recommendations of any soils or engineering report approved by Lender. In
constructing the Improvements, Borrower shall comply with all applicable laws,
ordinances, rules, regulations, building restrictions, recorded covenants and
restrictions, and requirements of all regulatory authorities having jurisdiction
over the Improvements or the Property (collectively "Requirements"). If
necessary, the Plans and Specifications shall be modified to comply with the
Requirements, subject to the provisions of section 3.3 hereof.
3.3 Plans and Specifications. Except as otherwise provided in this
Article 3, there shall be no change in the Plans and Specifications without
Lender's prior written approval. Requests for approval shall be submitted on a
change order form acceptable to Lender signed by Borrower and, if required by
Lender, the project architect and the general contractor, accompanied by working
drawings and a written narrative of the proposed change. As conditions to its
approval, (a) Lender may require satisfactory evidence of the cost of the
proposed change and the time necessary to complete the proposed change and (b)
to the extent Lender determines that the proposed change will result in
increased cost, Lender may require Borrower to deposit Borrower's Funds in the
amount of the increased cost into the Account in accordance with section 2.1(b)
hereof. Borrower acknowledges that this approval process may result in delays.
Upon Lender's request, Borrower, the project architect and the general
contractor shall initial the copy of the Plans and Specifications delivered to,
and approved by, Lender as a true copy of the Plans and Specifications for the
Improvements. Borrower shall maintain at all times a full set of working
drawings for the Improvements available for inspection by Lender. Within ten
(10)days after Lender's request, Borrower shall deliver to Lender complete
as-built Plans and Specifications for the completed Improvements.
3.4 Changes in Plans and Specifications. The prior written consent of
Lender shall not be required for any changes in the Plans and Specifications
unless such change (a) constitutes a material change in the building material or
equipment specifications or the architectural or structural design, value, or
quality of any of the Improvements, or (b)would result in an increase in any
item of construction cost in excess of one thousand dollars ($1,000) for any
single change or in excess of ten thousand dollars ($10,000) for all such
changes in such items of construction cost, or (c) would affect the structural
integrity, quality of building material or equipment, or overall efficiency of
operating systems or utility systems of the Improvements. Notwithstanding the
foregoing, Borrower shall submit all proposed changes in the Plans and
Specifications to Lender at least ten (10) days prior to the commencement of
construction relating to such proposed change, whether or not any such change is
subject to Lender's approval.
3.5 Construction Information; Inspections. Lender is expressly
authorized to contact any contractor, subcontractor or material supplier and, at
all reasonable times, to enter the Property and inspect the Improvements and the
work of construction in order to verify information disclosed pursuant to this
section or for any other purpose. From time to time, and within ten (10) days
after Lender's request, Borrower shall deliver to Lender:
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(a) A complete list stating (i) the name, address and
telephone number of each contractor, subcontractor and material
supplier to be employed or used for construction of the Improvements
and (ii) the dollar amount, including changes, if any, of each contract
and subcontract, and the portion thereof, if any, paid through the date
of such list; and
(b) Copies of each contract and subcontract identified in such
list, including any changes thereto; and
(c) A cost breakdown, in a form acceptable to Lender, stating
the estimated total cost of constructing the Improvements, and that
portion, if any, of each cost item (i) which has been incurred and (ii)
which has been paid, all as of the date of such cost breakdown; and
(d) A construction progress schedule, in a form acceptable to
Lender, showing the progress of construction and the estimated
sequencing and completion time for uncompleted work, all as of the date
of such schedule; and
(e) With respect to any item designated above which has been
previously delivered, such update thereof as Lender may request.
3.6 Prohibited Contracts. Without Lender's prior written consent,
Borrower shall not contract for any materials, furnishings, equipment, fixtures
or other parts or components of the Improvements, or other property for the use
or occupancy of the Property or the Improvements, if any third party retains or
purports to retain any interest (other than lien rights, if any, created by
operation of law) in such items after their delivery to the Property. Borrower
shall have five (5) days to effect the removal of any such retained interest.
3.7 Liens and Stop Notices. If a claim of lien is recorded affecting
the Property or the Improvements or a bonded stop notice is served upon Lender
which affects the Loan or Borrower's Funds, Borrower shall, within twenty (20)
days after such recording or service or within five (5) days after Lender's
demand (whichever last occurs): (a) pay and discharge the same; or (b) effect
the release thereof by recording or delivering to Lender a surety bond in
sufficient form and amount; or (c) provide Lender with other assurance which
Lender deems, in its sole discretion, to be satisfactory for the payment of such
lien or bonded stop notice and for the full and continuous protection of Lender
from the effect of such lien or bonded stop notice.
3.8 Construction responsibilities. Borrower shall be solely responsible
for all aspects of Borrower's business and conduct in connection with the
Property and the Improvements,including, but not limited to, the quality and
suitability of the Plans and Specifications and their compliance with the
Requirements, the supervision of the work of construction, the qualifications,
financial condition and performance of all architects, engineers, contractors,
material suppliers, consultants and property managers, and the accuracy of all
applications for payment and the proper application of all disbursements. Lender
is not obligated to supervise, inspect or inform Borrower or any third party of
any aspect of the construction of the Improvements or any other matter referred
to in this section. Any inspection or review by Lender is to determine whether
Borrower is properly discharging its obligations to Lender and may not be relied
upon by Borrower or any third party. Lender owes no duty of care to Borrower or
any third party to
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protect against, or to inform Borrower or any third party of, any negligent,
faulty, inadequate or defective design or construction of the Improvements.
3.9 Improvement District. Without Lender's prior written consent,
Borrower shall not, directly or indirectly, advocate or assist in the
incorporation of any of the Property or the Improvements into any improvement or
other assessment district.
3.10 Delay. Borrower shall promptly notify Lender in writing of any
event causing delay or interruption of construction or the timely completion of
construction. The notice shall specify the particular work delayed and the cause
and period of each delay.
3.11 Surveys. At Lender's request, Borrower shall deliver to Lender:
(a) a perimeter survey of the Property; (b) upon completion of the foundations
of the Improvements, a survey showing the location of the Improvements on the
Property and showing that the Improvements are located entirely within the
Property and do not encroach upon any easement or breach or violate any of the
Requirements; and (c) upon completion of the Improvements, an as-built survey
acceptable to a title insurer for purposes of issuing an ALTA Loan Policy of
title insurance. All such surveys shall be made and certified by a registered
engineer or licensed surveyor.
3.12 Force Majeure. The time within which construction of the
Improvements must be completed shall be extended for a period of time equal to
the period of any delay directly affecting the construction work which is caused
by fire, earthquake, inclement weather, strike, lockout, acts of public enemy,
riot, insurrection, or governmental regulation of the sale or transportation of
materials, supplies or labor, provided Borrower furnishes Lender with written
notice of any such delay within seven (7) days after the occurrence of any such
delay. In no event, however, shall the time for completion of the Improvements
(other than the interior improvements for which Lender is responsible pursuant
to the Lease) be extended beyond July 1, 1992.
3.13 Construction Agreement. Borrower and a general contractor approved
by Lender ("Contractor") will enter into a construction agreement ("Construction
Agreement"), pursuant to which Contractor will construct the Improvements in
accordance with the Plans and Specifications. Borrower shall require Contractor
to perform in accordance with the Construction Agreement and shall not amend,
modify or terminate the duties of Contractor under the Construction Agreement
without Lender's prior written consent. Upon Lender's request, Borrower shall
execute an assignment of the Construction Agreement to Lender as security for
Borrower's obligations under the Loan Documents and shall cause the Contractor
to consent to any such assignment.
3.14 Architect's Agreement. Borrower and Forsher & Xxxxxxx
("Architect") have entered into the Standard Form of Agreement Between Owner and
Architect for Designated Services dated August 21, 1991 ("Architect's
Agreement"), pursuant to which Architect is to design and supervise construction
of the Improvements. Borrower shall require Architect to perform in accordance
with the Architect's Agreement and shall not amend, modify or terminate the
duties of Architect under the Architect's Agreement without Lender's prior
written consent. Upon Lender's request, Borrower shall execute an assignment of
the Architect's Agreement and the Plans and Specifications to Lender as security
for Borrower's obligations under
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the Loan Documents and shall cause the Architect to consent to any such
assignment.
3.15 Bonds. Within five (5) days after Lender's request, Borrower shall
procure from a surety acceptable to Lender, and deliver to Lender, dual obligee
performance and labor and material payment bonds in a form, substance and amount
acceptable to Lender and, if requested by Lender, cause any such bond to be
recorded and the Construction Agreement to be filed in the office of the County
Recorder of the County where the Property is located.
3.16 Contractors. Lender may, but shall not be obligated to, disapprove
any contractor, subcontractor or material supplier whom Lender deems financially
or otherwise unqualified. The absence of any such disapproval shall not
constitute a representation of qualifications.
3.17 Completion of Plans and Specifications. Notwithstanding the
foregoing provisions of Articles 1, 2 and 3, Borrower and Lender recognize that
the Plans and Specifications (Exhibit B), the Financial Requirement
Analysis.(Exhibit D) and the Disbursement Plan (Exhibit E) have not been
completed as of the date of this Agreement and will not be completed as of the
Effective Date. Accordingly, Exhibits B, D and E attached to this Agreement are
incomplete. Borrower shall, on or before November 1, 1991, (a) cause complete
Plans and Specifications for the Improvements to be prepared, (b) prepare a
final construction cost budget based on the complete Plans and Specifications,
(c) enter into the Construction Agreement with the Contractor consistent with
the complete Plans and Specifications and the final construction cost budget,
and (d) obtain all required building permits for construction of the
Improvements. The complete Plans and Specifications, the final construction cost
budget, the Contractor and the Construction Agreement shall be subject to the
prior written approval of Lender. Upon such approval by Lender, Borrower and
Lender each shall execute and deliver an amendment to this Agreement containing
Exhibits B, D and E, which shall become part of this Agreement, on the basis of
the complete Plans and Specifications and the final construction cost budget
approved by Lender. The total amount of the Loan shall not exceed three million
dollars ($3,000,000), and Borrower shall pay all costs over three million
dollars ($3,000,000) necessary to complete the Improvements in accordance with
this Agreement.
3.18 Grading and Drainage work. Borrower has submitted to Lender, and
Lender has approved, plans for the grading and drainage work, which consist of
Sheet 1 (improvement plan), Sheets 2 and 3 (grading and drainage plans) and
Sheet 4 (signing and striping plan for the parking area) dated August 1, 1991,
prepared by Oberkamper & Associates. The portion of the Loan allocated to such
grading and drainage work is three hundred six thousand two hundred dollars
($306,200). Borrower shall commence such grading and drainage work promptly
after the Effective Date, Borrower shall perform such grading and drainage work
in accordance with such approved plans, and Lender shall disburse such portion
of the Loan allocated to such grading and drainage work pursuant to this
Agreement as the work progresses.
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ARTICLE 4
Insurance
4.1 Title Insurance. Borrower shall, at Borrower's expense, procure
from a title insurer satisfactory to Lender a 1970 LP-10 ALTA Loan Policy of
title insurance ("Title Policy"), with any endorsements Lender may require,
insuring Lender, in the principal amount of the Loan, of the validity and the
priority of the lien of the Deed of Trust upon the Property and the
Improvements, subject only to matters approved by Lender in writing. During the
term of the Loan, Borrower shall, at Borrower's expense, procure and deliver to
Lender, within five (5) days after Lender's request, such other endorsements to
the Title Policy as Lender may require.
4.2 Hazard Insurance. Borrower shall procure and maintain a policy of
builder's risk completed value hazard insurance, with a vandalism and malicious
mischief endorsement and such other endorsements as Lender may require, in an
amount acceptable to Lender. Lender shall be named under a Lender's Loss Payable
Endorsement (form 438BFU) attached to the policy. At Lender's request, the
policy shall contain an agreed value clause sufficient (as determined by Lender)
to eliminate any risk of co-insurance.
4.3 Liability Insurance. Borrower shall procure and maintain a policy
of comprehensive public liability insurance and property damage insurance with
limits as required by Lender, insuring against liability for injury or death to
any person and property damage occurring on the Property or in the Improvements
from any cause whatsoever. The policy shall name Lender as an additional
insured.
4.4 Blanket Coverage. Lender may accept, at its option, blanket
insurance policies in satisfaction of Borrower's obligations to provide
insurance.
4.5 General. Borrower shall procure and maintain all other insurance
required by the Requirements, the Deed of Trust or applicable law. Lender shall
receive the originals of all required insurance policies, or other evidence of
insurance acceptable to Lender. Borrower shall maintain all required insurance
until the Loan is repaid. All insurance policies shall provide that the
insurance shall not be cancellable or materially changed without thirty (30)
days' prior written notice to Lender. All insurance policies shall be issued by
licensed insurance companies acceptable to Lender.
ARTICLE 5
Representations and warranties
Borrower hereby represents and warrants to Lender as of the Effective
Date and continuing thereafter as follows:
5.1 Authority. Borrower has complied with all laws and regulations
concerning its organization, existence and transaction of business. Borrower has
the right and power to own and develop the Property and construct the
Improvements as contemplated in the Loan Documents. Borrower has, or at all
appropriate times shall have, properly obtained all permits, licenses and
approvals necessary to construct, occupy, operate and lease the Improvements,
and complied with the Requirements and all other applicable statutes, laws,
regulations and ordinances.
5.2 Enforceability. Borrower is authorized to execute, deliver and
perform under the Loan Documents, which are legal, valid and binding obligations
of Borrower, enforceable in accordance with their respective terms.
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5.3 No Violation. Borrower's undertakings in the Loan Documents do not
violate any of the Requirements or any other applicable statute, law, regulation
or ordinance or any order or ruling of any court or governmental entity, or
conflict with, or constitute a breach or default under, any agreement by which
Borrower is, or the Property and the Improvements are, bound or regulated.
Borrower is not in violation of any statute, law, regulation or ordinance, or of
any order of any court or governmental entity. There are no claims, actions or
proceedings pending or, to Borrower's knowledge, threatened against Borrower or
affecting the Property or the Improvements.
5.4 Financial Information. All financial information delivered to
Lender, including, without limitation, information relating to the financial
condition of Borrower, the Property, the Improvements, or partners of Borrower,
fairly and accurately represents such financial condition and has been prepared
in accordance with generally accepted accounting principles consistently
applied, unless otherwise noted in such information. No material adverse change
in such financial condition has occurred.
5.5 Accuracy. All reports, documents, instruments, information and
forms of evidence delivered to Lender concerning the Loan or required by the
Loan Documents are accurate, correct and sufficiently complete to give Lender
true and accurate knowledge of their subject matter, and do not contain any
misrepresentation or omission.
5.6 Adequacy of Loan. The undisbursed Loan proceeds, together with
Borrower's Funds and all other sums (if any) to be provided by Borrower as shown
in Exhibit D, are sufficient to do all of the things specified in section 2.1(b)
hereof.
5.7 Taxes. Borrower has filed all required federal, state, county and
municipal tax returns and has paid all taxes owed and payable, and Borrower
knows of no basis for additional assessment with respect to any taxes.
5.8 Utilities. All utility services, including, without limitation,
gas, water, sewer, drainage, electrical and telephone, necessary for the
development, construction and occupancy of the Property and the Improvements are
available at or within the boundaries of the Property, or Borrower has taken all
steps necessary to assure that all utility services will be available upon
completion of the Improvements.
5.9 Compliance. Borrower is familiar with all Requirements. The
development of the Property and the construction of the Improvements will
conform to and comply with the Requirements and the Plans and Specifications.
ARTICLE 6
Default
6.1 Default. The following shall constitute a "Default" under the Loan
Documents:
(a) Monetary. (i) Borrower's failure to pay when due any sums
payable under the Note or any of the other Loan Documents; or (ii)
Borrower's failure
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to deposit any Borrower's Funds as and when required under section
2.1(b) hereof; or
(b) Construction; Use. (i) Any material deviation in the work
of construction from the Plans and Specifications or the Requirements
or the appearance or use of defective workmanship or materials in
constructing the Improvements, and Borrower's failure to remedy the
same to Lender's satisfaction within ten (10) days after Lender's
written demand to do so; or (ii) the cessation of construction of the
Improvements prior to completion for a continuous period of more than
fifteen (15) days (except as caused by events for which delay may be
permitted under Article 3 hereof); or (iii) the prohibition, enjoining
or delaying (in any manner) of the construction of any of the
Improvements in accordance with the Loan Documents for a continuous
period of more than thirty (30) days; or (iv) the curtailment in
availability to the Property or the Improvements of utilities or other
public services necessary for the full occupancy and utilization of the
Improvements for a continuous period of more than thirty (30) days; or
(c) Liens, Attachment; Condemnation. (i) The filing of any
claim of lien against the Property or the Improvements or the service
on Lender of any bonded stop notice relating to the Loan and the
continuance of the claim of lien or bonded stop notice for twenty (20)
days without discharge, satisfaction or provision for payment being
made in accordance with Article 3 hereof; or (ii) the condemnation,
seizure or appropriation of, or occurrence of an uninsured casualty
with respect to, any material (as determined by Lender in its sole and
absolute discretion) portion of the Property or the Improvements; or
(iii) the sequestration or attachment of, or any levy or execution
upon, any of the Property or the Improvements, any other collateral
provided by Borrower under any of the Loan Documents, any monies in the
Account, or any substantial portion of the other assets of Borrower,
which is not released, expunged or dismissed prior to the earlier of
thirty (30)days after sequestration, attachment or execution or the
sale of such other assets affected thereby; or
(d) Performance of obligations. Borrower's failure to perform
its obligations under any of the Loan Documents; provided, however,
that if a specific time is provided in the Loan Documents for the
curing of such failure, Borrower's failure to perform will not
constitute a Default until the specified time period expires; or
(e) Representations and Warranties. (i) The failure of any of
Borrower's representations or warranties in any of the Loan Documents,
except as to adverse change in financial condition, to be true within
fifteen (15) days, or other period as may be provided, after notice by
Lender; or (ii) any material adverse change in the financial condition
of Borrower or any other person or entity in any manner obligated to
Lender under the Loan Documents from the financial condition
represented to Lender as of the Effective Date; or
(f) Voluntary Bankruptcy; Insolvency; Dissolution. (i)
Borrower's filing of a petition for relief under the Bankruptcy Reform
Act of 1978, as amended or recodified ("Bankruptcy Code"), or under any
other present or future state or federal law regarding bankruptcy,
reorganization or other relief to debtors (collectively, "Debtor
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Relief Law"); or (ii) Borrower's filing any pleading in any involuntary
proceeding under the Bankruptcy Code or other Debtor Relief Law, which
admits the jurisdiction of the court or the petition's material
allegations regarding Borrower's insolvency; or (iii) Borrower's making
a general assignment for the benefit of creditors; or (iv) Borrower's
applying for, or the appointment of, a receiver, trustee, custodian or
liquidator of Borrower or any of its property; or (v) the filing by or
against Borrower of a petition seeking the liquidation or dissolution
of Borrower or the commencement of any other procedure to liquidate or
dissolve Borrower; or
(g) Involuntary Bankruptcy. Borrower's failure to effect a
full dismissal of any involuntary petition under the Bankruptcy Code or
any other Debtor Relief Law that is filed against Borrower or in any
way restrains or limits Borrower or Lender regarding the Loan, the
Property or the Improvements prior to the earlier of the entry of any
order granting relief sought in the involuntary petition or thirty (30)
days after the date of filing of the petition; or
(h) Partners; Guarantors. The occurrence of an event specified
in section 6.1(f) or section 6-1(g) hereof as to any person or entity
in any manner obligated to Lender under the Loan Documents
6.2 Acceleration. Upon the occurrence of a Default specified in
sections 6.1(a) through 6.1(e) hereof, inclusive, Lender may, at its option,
declare all sums owing to Lender under the Note and the other Loan documents
immediately due and payable. Upon the occurrence of a Default specified in
section 6.1(f), 6.1(g) or 6.1(h) hereof, or upon the occurrence of any default
or event of default specified in any of the Loan Documents which provides that
acceleration shall be automatic, all sums owing to Lender under the Loan
Documents shall automatically become immediately due and payable. Upon
acceleration, Lender may, in addition to other uses permitted under the Loan
Documents, apply undisbursed Loan proceeds and any sums in the Account to the
sums owing to Lender under the Loan Documents.
6.3 Disbursement by Lender. Upon the occurrence of a Default which is
occasioned by Borrower's failure to pay money, Lender may, but shall not be
obligated, to make such payment from Loan proceeds, Borrower's Funds, or other
funds of Lender. If such payment is made from proceeds of the Loan or from
Borrower's Funds, Borrower shall deposit with Lender, upon written demand issued
pursuant to section 2.1(b) hereof, an amount equal to such payment. If such
payment is made from funds of Lender, Borrower shall repay such funds upon
demand issued pursuant to section 6.6 hereof. In either case, the Default with
respect to which any such payment has been made by Lender shall not be deemed
cured until such deposit or repayment (as the case may be) has been made by
Borrower.
6.4 Lender's Completion of Construction. If Default occurs, Lender may,
upon five (5) days' written notice to Borrower, and with or without legal
process, take possession of the Property and the Improvements, remove Borrower
and all agents, employees and contractors of Borrower from the Property and the
Improvements, complete the work of construction, and market and sell or lease
the Property and the Improvements. Borrower irrevocably appoints Lender as its
attorney-in-fact, which agency is coupled with an interest. As attorney-in-fact,
Lender may, in Borrower's name, take or omit to take any action Lender may deem
appropriate, including, without limitation, exercising Borrower's rights under
the Loan Documents and all contracts concerning the Property or the
Improvements.
11
6.5 Cessation of Construction. If Lender determines that the
Improvements are not being constructed in accordance with the Plans and
Specifications, the Requirements or the Loan Documents, Lender may order all
construction on any of the Improvements affected by the condition of
nonconformance immediately stopped. After such order, Borrower shall not allow
any construction work, other than corrective work, to be performed on any of the
Improvements affected by the condition of nonconformance until Lender notifies
Borrower in writing that the nonconforming condition has been corrected.
6.6 Repayment of Funds Advanced. If Lender spends its funds in
exercising any of its rights or remedies under the Loan Documents, the amount of
funds spent shall be payable to Lender upon demand, together with interest at
the rate applicable to the principal balance of the Note after default or
maturity as specified therein, from the date the funds were spent. Until repaid,
such amounts shall have the security afforded disbursements under the Note.
6.7 Right of Contest. Borrower may contest in good faith any claim,
demand, levy or assessment (other than liens and stop notices, provision for
which is made in Article 3 hereof) by any person other than Lender which would
constitute a Default if (a) Borrower pursues the contest diligently and in a
manner which Lender determines is not prejudicial to Lender and does not impair
the rights of Lender under any of the Loan Documents and (b) if requested by
Lender, Borrower deposits with Lender any funds or other forms of assurance
Lender in good faith from time to time determines appropriate to protect Lender
from the consequences of the contest being unsuccessful. Borrower's compliance
with this section shall operate to prevent such claim, demand, levy or
assessment from becoming a Default.
ARTICLE 7
Miscellaneous Provisions
7.1 Expenses. Borrower shall pay within five (5) days Lender's demand
all reasonable and necessary expenses incidental to making the Loan, including,
without limitation, preclosing and closing expenses, commitment fees,
architectural and engineering review expenses, appraisal fees, construction
inspection fees and attorneys' fees, incurred by Lender; provided, however, that
Borrower shall not be required to pay more than the total amount of sixty-two
thousand five hundred dollars ($62,500) on account of such expenses.
7.2 Financial Information. Within one hundred twenty (120) days after
the end of Borrower's tax year, Borrower shall deliver to Lender a current
signed financial statement, income and expense statement and balance sheet of
Borrower. Borrower shall also deliver to Lender such quarterly, periodic or
other financial information as Lender may request. If Borrower has audited
financial information prepared, Borrower shall deliver to Lender copies of that
information within five (5) days after its preparation. All financial reports
shall be prepared in accordance with generally accepted accounting principles
consistently applied, or other form acceptable to Lender.
7.3 Indemnity. Borrower indemnifies Lender against, and holds Lender
harmless from, any losses, damages, liabilities, claims, demands, actions,
12
judgments, court costs and legal or other expenses (including attorneys' fees
and disbursements) which Lender may incur as a direct or indirect consequence
of: (i) the making of the Loan, except for violations of laws or regulations by
Lender; or (ii) Borrower's failure to perform any obligations as and when
required by this Agreement or any of the other Loan Documents; or (iii) any
failure at any time of any of Borrower's representations or warranties to be
true and correct; or (iv) any act or omission by Borrower, any contractor,
subcontractor or material supplier, or any engineer, architect or other person
or entity with respect to any of the Property or the Improvements. Borrower
shall pay immediately upon Lender's demand any amounts owing under this
indemnity together with interest from the date the indebtedness arises until
paid at the rate of interest applicable to the principal balance of the Note
after default or maturity as specified therein. Borrower's duty to indemnify
Lender shall survive the release and cancellation of the Note and the
reconveyance or partial reconveyance of the Deed of Trust.
7.4 Books and Records. Borrower shall maintain complete books of
account and other records for the Property and the Improvements and for
disbursement and use of the Loan proceeds and Borrower's Funds, and the same
shall be available for inspection and copying by Lender.
7.5 Further Assurances. At Lender's request and at Borrower's expense,
Borrower shall execute, acknowledge and deliver any other instruments and
perform any other acts necessary, desirable or proper (as determined by Lender)
to carry out the purposes of the Loan Documents or to perfect and preserve any
liens created by the Loan Documents.
7.6 Form of Documents. The form and substance of all documents,
instruments, and forms of evidence to be delivered to Lender under the terms of
any of the Loan Documents shall be subject to Lender's approval and shall not be
modified, superseded or terminated in any respect without Lender's prior written
approval.
7.7 No Third Parties Benefited. No person other than Lender and
Borrower and their permitted successors and assigns shall have any right of
action under any of the Loan Documents.
7.8 Notices. All written notices and demands under the Loan Documents
shall be deemed served upon delivery or, if mailed, upon receipt after deposit
in United States Postal Service by certified mail, postage prepaid, and
addressed to the address of Borrower or Lender appearing below. Notice of change
of address may be given in the same manner, provided Borrower's address shall be
in the State of California.
7.9 Authority to File Notices. Borrower irrevocably appoints and
authorizes Lender, as Borrower's attorney-in-fact, which agency is coupled with
an interest, to execute and/or record in Lender's or Borrower's name any
notices, instruments or documents that Lender deems appropriate to protect
Lender's interest under any of the Loan Documents.
7.10 Actions. Lender may commence, appear in or defend any action or
proceeding purporting to affect the Property, the Improvements, the Loan
Documents or the rights, duties or liabilities of Borrower or Lender under the
Loan Documents. In exercising this right, Lender may incur and pay costs and
expenses,
13
including, without limitation, attorneys' fees and court costs, and Borrower
agrees to pay all such expenses so incurred or paid.
7.11 Relationship of Parties. The relationship of Borrower and Lender
under the Loan Documents is, and shall at all times remain, solely that of
borrower and lender. No partnership, joint venture or fiduciary relationship of
any kind or nature whatsoever exists between Borrower and Lender and Borrower
and Lender are not members of any joint or common enterprise. Lender neither
undertakes nor assumes any responsibility or duty to Borrower or to any third
party with respect to the Property, the Improvements or the Loan, except as
expressly provided in the Loan Documents.
7.12 Lender's Delay. Lender shall not be liable in any way for Lender's
failure to perform or delay in performing under the Loan Documents, and Lender
may suspend or terminate all or any portion of Lender's obligations under the
Loan Documents if Lender's delay or failure results directly or indirectly from,
or is based upon, the action, inaction, or purported action, of any governmental
or local authority, or any war (whether declared or not), rebellion,
insurrection, strike, lock-out, boycott or blockade (whether presently in
effect, announced or in the sole judgment of Lender deemed probable), or any
other cause or event beyond Lender's control.
7.13 Attorneys' Fees; Enforcement. If any attorney is engaged by Lender
to enforce, construe or defend any provision of any of the Loan Documents, or as
a consequence of any Default or event of default under the Loan Documents, with
or without the filing of any legal action or proceeding, Borrower shall pay to
Lender, immediately upon demand, the amount of all attorneys' fees and
disbursements incurred by Lender in connection therewith, together with interest
thereon from the date of such demand at the rate of interest applicable to the
principal balance of the Note after default or maturity as specified therein.
7.14 Assignment. Borrower shall not assign Borrower's interest under
any of the Loan Documents, or in any monies due or to become due thereunder,
without Lender's prior written consent. Any assignment made without Lender's
consent shall be void. Borrower recognizes that this is not an ordinary loan and
that Lender would not make this Loan except in reliance on Borrower's expertise
and reputation, Lender's knowledge of Borrower, and Lender's understanding that
this Agreement is more in the nature of an agreement involving personal services
than a standard loan where Lender would rely on security which already exists.
In this instance, the Improvements are not constructed and Lender is relying on
Borrower's expertise and prior experience to develop the Property and construct
the Improvements in accordance with the terms of the Loan Documents.
7.15 Disclosure of Information. If Lender elects to sell participations
in the Loan, Lender may forward to each participant and prospective participant
all documents and information relating to the Loan and all parties thereto,
whether furnished by Borrower or otherwise.
7.16 Signs. Lender may place on the Property signs stating that Lender
is providing construction financing.
7.17 Lender's Agents. Lender may designate an agent, representative or
independent contractor to exercise any of Lender's rights under the Loan
14
Documents. Any reference to Lender in any of the Loan Documents shall include
Lender's agents, employees, representatives or independent contractors.
7.18 Severability. If any provision of the Loan Documents shall be
determined by a court of competent jurisdiction to be invalid, illegal or
unenforceable, that portion shall be deemed severed from the Loan Documents and
the remaining parts shall remain in full force as though the invalid, illegal or
unenforceable portion were not part of the Loan Documents.
7.19 Heirs, Successors and Assigns. The terms of the Loan Documents
shall be binding upon and inure to the benefit of the heirs, personal
representatives, successors and assigns of the parties; provided however, that
this section does not waive the provisions of section 7.14 hereof.
7.20 Rights Cumulative, No Waiver. All Lender's rights and remedies
provided in the Loan Documents, granted by law or otherwise, are cumulative and
may be exercised by Lender at any time. Lender's exercise of any right or remedy
shall not constitute a cure of any Default unless all sums then due and payable
to Lender under the Loan Documents are repaid and Borrower has cured all other
Defaults. No waiver shall be implied from any failure of Lender to take, or any
delay by Lender in taking, action concerning any Default or failure of condition
under the Loan Documents, or from any previous waiver of any similar or
unrelated Default or failure of condition. Any waiver or approval under any of
the Loan Documents must be in writing and shall be limited to its specific
terms.
7.21 Time. Time is of the essence of each term of the Loan Documents.
7.22 Headings. All headings appearing in any of the Loan Documents are
for convenience only and shall be disregarded in construing the Loan Documents.
7.23 Governing Law. The Loan Documents shall be governed by, and
construed in accordance with, the laws of the State of California.
7.24 Integration; Interpretation. The Loan Documents contain or
expressly incorporate by reference the entire agreement of the parties with
respect to the matters contemplated herein and supersede all prior negotiations.
The Loan Documents shall not be modified except by written instrument executed
by all parties. Any reference in any of the Loan Documents to the Property or
the Improvements shall include all or any parts of the Property or the
Improvements. Any reference to the Loan Documents in any of the Loan Documents
includes any amendments, renewals or extensions approved in writing by Lender.
Any reference in this Agreement to the Loan Documents shall include all or any
of the provisions of this Agreement and the other Loan Documents unless
otherwise specified.
7.25 Joint and Several Liability. The liability of all persons and
entities who are in any manner obligated under any of the Loan Documents shall
be joint and several.
15
7.26 Incorporation. Exhibits A, B, C, D and E, all attached hereto, are
incorporated into this Agreement.
IN WITNESS WHEREOF, Borrower and Lender have executed this Construction
Loan Agreement as of the date first hereinabove written.
111 PARTNERS, a California general
partnership
By________________________________
Xxxxxxx X. Xxxxx
General Partner
By________________________________
Xxxxx X. Xxxxx
General Partner
By________________________________
Xxxxxx X. Xxxx
General Partner
Borrower's Address:
00 Xxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
FAIR, XXXXX AND COMPANY,
INCORPORATED, a Delaware corporation
By________________________________
Xxxxxx de Kerchove
Executive Vice President
Lender's Address:
000 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx
16
EXHIBIT A
CONSTRUCTION LOAN AGREEMENT
(Description of Property)
All of the real property in the City of San Xxxxxx, County of Marin, State of
California, described as follows:
PARCEL ONE:
Parcel 3B, as shown upon that certain Parcel Map entitled "Parcel Map, Xxx 0 xx
Xxx xx Xxxxx Xxxxx, Xxxxxxxxx Portion 17 R.M. 39, San Xxxxxx, Xxxxx County,
California", filed for record August 13, 1991 in Book 25 of Parcel Maps, at Page
18, Marin County Records.
Reserving thereform an easement for access, parking, drainage and public
utilities over that portion of the herein described property lying within the
boundaries of that certain, "Mutual Access and Parking Easement, D.E. & P.U.E.",
as shown upon the filed map referred to above.
Said easement to be appurtenant to and for the benefit of Parcel 3A, as shown
upon the filed map referred to above.
PARCEL TWO:
An easement for access, parking, drainage and public utility purposes over that
portion of Parcel 3A, lying within the boundaries of that certain, "Mutual
Access and Parking Easement, D.E. & P.U.E.", as said parcel and easement are
shown upon that certain Parcel Map entitled, "Parcel Map, Xxx 0 xx Xxx xx Xxxxx
Xxxxx, Xxxxxxxxx Portion 17 R.M. 39, San Xxxxxx, Xxxxx County, California",
filed for record August 13, 1991 in Book 25 of Parcel Maps, at Page 18, Marin
County Records.
PARCEL THREE:
An easement for storm drainage purposes more particularly described as follows:
Beginning at the Easterly terminus of the course "South 81(0) 38' 00" East,
536.00 feet"; said point being on the Northerly line of Xxxxx Ranch Road and the
Southerly line of Lot 3, as shown and delineated on that certain map entitled,
"Map of Xxxxx Ranch - Northerly Portion", filed for record in Book 17 of Record
Maps at Page 39, Marin County Records; thence leaving said Northerly line of
said Xxxxx Xxxxx Xxxx (00 XX 39) along the Easterly line of said Xxx 0 (00 XX
00)xxx following courses and distances; Easterly along a tangent curve to the
left whose center bears North 8(0) 22' 00" East, having a radius of 20.00 feet,
through a central angle of 90(0) 00' 00", an arc length of 31.42 feet and thence
North 8(0) 22' 00' East, 23.00 feet; thence leaving said Xxxxxxxx xxxx xx xxxx
Xxx 0 (00 XX 00) South 13(0) 12' 17" East 46.24 feet to said Northerly line of
said Xxxxx Xxxxx Xxxx (00 XX 39); thence along said Northerly line of said Xxxxx
Xxxxx Xxxx (00 XX 39) North 81(0) 38' 00' West, 37.00 feet to the point of
beginning.
17
PARCEL FOUR:
An easement for storm drainage over a strip of land 10 feet in width and being 5
feet on each side of the following described line:
Beginning at the Easterly terminus of the course "South 81(0) 38' 00" East,
536.00 feet"; said point being on the Northerly line of Xxxxx Ranch Road and the
Southerly line of Lot 3, as shown and delineated on that certain Map entitled,
"Map of Xxxxx Ranch Northerly Portion", filed for record in Book 17 of Record
Maps at Page 39, Marin County Records; thence leaving said Northerly line of
said Xxxxx Xxxxx Xxxx (00 XX 39) along the Easterly line of said Xxx 0 (00 XX
00) the following courses and distances; Easterly along a tangent curve to the
left whose center bears North 8(0) 22' 00" East, having a radius of 20.00 feet,
through a central angle of 90(0) 00' 00", an arc length of 31.42 feet, and
thence North 8(0) 22' 00" East, 128 feet to the true point of beginning; thence
leaving said Easterly line of said Xxx 0 (00 XX 00) South 81(0) 38' 00' East
60.00 feet to the Westerly line of Parcel D, as shown on said "Map of Xxxxx
Ranch - Northerly Portion" (17 RM 39), being the terminus of this easement.
PARCEL FIVE:
An easement for access and public utility purposes more particularly described
as follows:
Beginning at the Easterly terminus of the course "South 81(0) 38' 00' East,
536.00 feet"; said point being on the Northerly line of Xxxxx Ranch Road and the
Southerly line of Lot 3, as shown and delineated on that certain Map entitled,
"Map of Xxxxx Ranch - Northerly Portion", filed for record in Book 17 of Record
Maps at Page 39, Marin County Records; thence leaving said Northerly line of
said Xxxxx Xxxxx Xxxx (00 XX 39) along the Easterly line of said Xxx 0 (00 XX
00) the following courses and distances; Easterly along a tangent curve to the
left whose center bears North 8(0) 22' 00" East, having a radius of 20.00 feet,
through a central angle of 90(0) 00' 00", an arc length of 31.42 feet; thence
North 8(0) 22' 00" East, 271.13 feet and thence Northeasterly along a tangent
curve to the left whose center bears North 81(0) 38' 00" West, having a radius
of 670 feet, through a central angle of 2(0) 00' 00", an arc length of 23.39
feet; thence leaving said Easterly line of said Xxx 0 (00 XX 00) South 81(0) 38'
00" East, 27.41 feet; thence South 8(0) 22' 00' West, 141.15 feet; thence
Southerly along a tangent curve to the left whose center bears South 81(0) 38'
00' East, having a radius of 292 feet, through a central angle of 10(0) 59' 17",
an arc length of 56.00 feet; thence Southerly along a reverse curve to the right
whose center bears, South 87(0) 22' 43" West, having a radius of 308.00 feet,
through a central angle of 10(0) 59' 17", an arc length of 59.07 feet; thence
South 8(0) 22' 00" West, 59.00 feet to said Northerly line of said Xxxxx Ranch
Road; thence along said Northerly line of said Xxxxx Ranch Road (17 RM 39) North
81(0) 38' 00" West, 58.00 feet to the point of beginning.
18
EXHIBIT B
CONSTRUCTION LOAN AGREEMENT
(Description of Improvements and
Plans and Specifications)
1. Description of Improvements. The Improvements consist of a general
purpose two-story office building, fully air conditioned and sprinklered, with
one elevator, of steel and wood frame construction, tar and gravel roof,
containing approximately 24,944 square feet of usable area (approximately 00,000
xxxxxx xxxx xx xxxxx xxxxxxxx xxxx), with on-site parking for 89 vehicles and
fully landscaped grounds, together with all appurtenances, fixtures, equipment
and interior tenant improvements.
2. Description of Plans and Specifications. The Plans and
Specifications described below were prepared for use by Borrower and Contractor
in constructing the Improvements, and Borrower hereby represents and warrants to
Lender that the description of the Plans and Specifications set forth below is
accurate and complete.
Latest
Revision
Description Date
(Sheet(s) or Page(s)) Prepared By Date if any
--------------------- ----------- ---- ------
19
EXHIBIT C
CONSTRUCTION LOAN AGREEMENT
(Loan Documents)
The loan documents numbered 1 through 8, inclusive, below, and
amendments, modifications and supplements thereto which have received the prior
written consent of Lender, and any documents executed in the future that are
approved by Lender and that recite that they are "Loan Documents" for purposes
of this Agreement, are collectively referred to as the "Loan Documents":
1. This Agreement;
2. Promissory Note of even date herewith, in the original principal
amount of the Loan, made by Borrower and payable to the order of Lender
("Note");
3. Construction Deed of Trust, Assignment of Rents and Security
Agreement of even date herewith executed by Borrower, as trustor, to California
Land Title Company of Marin, a California corporation, as trustee, for the
benefit of Lender, as beneficiary ("Deed of Trust");
4. Assignment of Lessor's Interest in Leases of even date herewith
executed by Borrower in favor of Lender;
5. Environmental Indemnity of even date herewith executed by Borrower
in favor of Lender;
6. State of California Uniform Commercial Code - Financing Statement -
Form UCC-1 executed by Borrower, as debtor, in favor of Lender, as secured
party; and
7. Assignment of Architect's/Engineer's Agreements and Plans and
Specifications and Architect's/Engineer's Consent of even date herewith executed
by Borrower and Architect in favor of Lender.
20
EXHIBIT D
CONSTRUCTION LOAN AGREEMENT
(Financial Requirement Analysis)
The financial analysis set forth herein represents an analysis of the
total costs necessary, in Borrower's estimation, to perform Borrower's
obligations under the Loan Documents through final completion of the
Improvements. Column A, "Total Costs," sets forth Borrower's representation of
the maximum costs for each Item specified in Column A. Column B, "Costs Paid By
Borrower," sets forth Borrower's representation of costs that Borrower has paid
or has caused to be paid from other sources of funds for each Item specified in
Column B. Column C, "Costs To Be Paid By Borrower," sets forth Borrower's
representation of costs that Borrower will pay or will cause to be paid from
other sources of funds for each Item specified in Column C. Column D,
"Disbursement Budget," sets forth the portion of the Loan and Borrower's Funds
which has been allocated for each Item specified in Column D and will be
disbursed pursuant to the terms, covenants, conditions and provisions of Exhibit
E and the Loan Documents. Unless specified otherwise, all references to Columns
or Items in this Agreement refer to Columns or Items in this Exhibit D.
21
FINANCIAL REQUIREMENT ANALYSIS
-------------------------------------------- -------------------- -------------------- ----------------------- ---------------------
(A) TOTAL COSTS (B) COSTS PAID (C) COSTS TO BE (D) DISBURSEMENT
BY BORROWER PAID BY BORROWER BUDGET (a) (b)
-------------------------------------------- -------------------- -------------------- ----------------------- ---------------------
1. LAND COST
-------------------------------------------- -------------------- -------------------- ----------------------- ---------------------
*2. Construction Costs of
Improvements
($____ sq. ft)
*3. Tenant Improvement Costs
($____ sq. ft)
*4. Site Work Costs
($____ sq. ft)
*5. Offsite Costs
($____ sq. ft)
6. Architect and Engineering Fees
7. Government Fees (permits,
bonds, etc.)
8. Operating Costs during
construction (job supervision,
utilities, etc.)
*9. Contingency Reserve
(____% of #'s 2-5)
10. Other Hard Costs
a. _____________
b. _____________
c. _____________
11. TOTAL HARD COSTS
(Lines 2-10) $ $ $ $
-------------------------------------------- -------------------- -------------------- ----------------------- ---------------------
12. Interest Reserve
13. Taxes during construction
14. Insurance during construction
15. Lender Loan Fee
16. Permanent Loan Fee
17. Title, Recording and
Escrow expenses
18. Legal Fees
19. Promotion and Advertising
20. Commission Expense
21. Organization Expenses
(developer overhead)
22. Soft Costs Contingency
23. Other Soft Costs:
a. _____________
b. _____________
c. _____________
24 TOTAL SOFT COSTS
(Lines 12-23) $ $ $ $
-------------------------------------------- -------------------- -------------------- ----------------------- ---------------------
25. CUMULATIVE TOTALS
(Lines 1, 11 & 24) $ $ $ $
-------------------------------------------- -------------------- -------------------- ----------------------- ---------------------
Footnotes:
(a) Borrower's Funds in the amount of $__________ are included in the total
shown on line #25 of the Disbursement Budget. Unless specified otherwise,
all such funds shall be disbursed prior to any disbursement of Loan
proceeds.
(b) These funds will be available on or after the Effective Date as defined
in the Construction Loan Agreement.
* Items requiring retention.
------------------------------------------------------------------------------------------------------------------------------------
22
EXHIBIT E
CONSTRUCTION LOAN AGREEMENT
(Disbursement Plan)
A. Timing of Disbursements. On or about the ____( ) day of each month,
or at such other times as Lender may deem appropriate, Borrower shall submit to
Lender a written itemized statement ("Application for Payment"), signed by
Borrower, setting forth:
1. A description of the work performed, materials supplied and costs
incurred or due for which disbursement is requested with respect to any line
item ("Item") shown in Column D ("Disbursement Budget") of the Financial
Requirement Analysis attached as Exhibit D to this Agreement; and
2. The total amount incurred, expended or due for each requested Item
less prior disbursements.
Each Application for Payment by Borrower shall constitute a
representation and warranty by Borrower that Borrower is in compliance with all
the conditions precedent specified in section 2.1 of this Agreement.
B. Lender's Right to Condition Disbursements. Lender shall have the
right to condition any disbursement upon Lender's receipt and approval of the
following:
1. The Application for Payment and an itemized requisition for payment
of Items 2 through 10 as shown in the Disbursement Budget ("Hard Costs");
2. Bills, invoices, documents of title, vouchers, statements, payroll
records, receipts and any other documents evidencing the total amount expended,
incurred or due for any requested Items;
3. Evidence of Borrower's use of a lien release, joint check and
voucher system acceptable to Lender for payments or disbursements to any
contractor, subcontractor, materialman, supplier or lien claimant;
4. Architect's, inspector's or engineer's periodic certifications of
the percentage or stage of construction that has been completed and its
conformance to the Plans and Specifications and the Requirements based upon any
such architect's, inspector's or engineer's periodic, physical inspections of
the Property and the Improvements;
5. Waivers and releases of mechanics' liens, stop notice claims,
equitable lien claims or other lien claim rights;
6. Evidence of Borrower's compliance with the provisions of sections
3.2 and 5.1 of this Agreement;
23
7. Valid, recorded Notice(s) of Completion for the Improvements or any
portions of the Improvements for which Notice(s) of Completion may be recorded
under applicable law;
8. The Architect's and Engineer's, if any, Certificate of Substantial
Completion prior to the final retention disbursement of Hard Costs
9. Any other document, requirement, evidence or information that Lender
may request under any provision of the Loan Documents; and
10. In the event that any Application for Payment includes the cost of
materials stored on the Property ("Onsite Materials"), such Application for
Payment shall include each of the following: (a) evidence that the Onsite
Materials have been paid for in full by Borrower; (b) evidence that the Onsite
Materials are insured as required hereunder; and (c) evidence that the Onsite
Materials are stored in an area on the Property for which adequate security is
provided against theft and vandalism. Borrower acknowledges that this approval
process may result in disbursement delays and Borrower consents to all such
delays.
C. Periodic Disbursements. The Disbursement Budget (Column D) shall be
disbursed by Lender into the Account or to or for the benefit or account of
Borrower, as determined by Lender, periodically as follows:
1. Land Cost. The portion allocated to Land Cost, Column D, Item ____,
initially totaling ____dollars ($____), shall be disbursed as follows:
____________________________.
2. Construction Costs, Site Work Costs and Offsite Costs. The portion
allocated to Construction Costs, Site Work Costs and Offsite Costs, Column D,
Items ____, initially totaling ____ dollars ($____), shall be disbursed as
construction progresses for the payment of Construction Costs, Site Work Costs
and Offsite Costs Items up to ninety percent (90%) of the amount allocated for
any requested Item less prior disbursements. The remaining ten percent (10%) of
the amounts allocated to Construction Costs, Site Work Costs and Offsite Costs
Items shall be disbursed after the Improvements are fully completed in
accordance with the Plans and Specifications and the Requirements, the statutory
lien period has expired, and Lender has received a lien-freeLP-10 re-write of
the Title Policy and evidence satisfactory to Lender of lien-free final
completion.
3. Tenant Improvement Costs. The portion allocated to Tenant
Improvement Costs, Column D, Item ____,initially totaling ____dollars ($____),
shall be disbursed as construction progresses for the payment of Tenant
Improvement Costs up to the maximum of the lower of ____ dollars ($____) per
square foot or the actual cost per square foot of completed Tenant Improvements
less prior disbursements. The remaining ____dollars ($____) of the amount
allocated to Tenant Improvement Costs shall be disbursed after the Tenant
Improvements are fully completed in accordance with tenant improvement plans and
specifications (that have previously been approved in writing by Lender) and the
Requirements, the statutory lien period has expired, and Lender has received a
lien-free LP-10 re-write of the Title Policy and evidence satisfactory to Lender
of lien-free final completion.
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4. Architect and Engineering Fees. The portion allocated to Architect
and Engineering Fees, Column D, Item ____, initially totaling ____ dollars
($____ ), shall be disbursed for the payment of Architect and Engineering Fees.
5. Government Fees. The portion allocated to Government Fees, Column D,
Item ____ , initially totaling ____ dollars ($____), shall be disbursed for the
payment of Government Fees.
6. Operating Costs. The portion allocated to Operating Costs, Column D,
Item ____, initially totaling ____ dollars ($____), shall be disbursed for the
payment of Operating Costs incurred during construction as Operating Costs
become due and payable.
7. Contingency Reserve. The portion allocated to Contingency Reserve,
Column D, Item ____, initially totaling ____ dollars ($____), and any increases
in the Contingency Reserve pursuant hereto, shall be reallocated periodically to
such other Items as Borrower shall, from time to time, request in writing and
Lender shall approve in writing. After any such reallocation, the portion of the
Contingency Reserve that has been reallocated will be disbursed in accordance
with the provisions governing the disbursement of the Item(s) to which such
portion of the Contingency Reserve has been allocated. If the actual cost or a
revised guaranteed cost of an Item is less than the maximum amount of the
Disbursement Budget allocated to any such Item, then any such excess amounts may
be reallocated to the Contingency Reserve from time to time upon Borrower's
written request and Lender's written approval. Any amounts reallocated to this
Item will be disbursed in accordance with this paragraph. The increase,
reallocation or depletion, or refusal of Lender to increase, reallocate or
deplete, the Contingency Reserve shall not release Borrower from any of
Borrower's obligations under the Loan Documents.
8. Other Hard Costs. The portion allocated to Other Hard Costs, Column
D, Item ____, initially totaling ___ dollars ($____), shall be disbursed as
construction progresses for the payment of Other Hard Costs.
9. Interest Reserve. The portion allocated to Interest Reserve, Column
D, Item ____, initially totaling ____ dollars ($____), shall be disbursed
directly to Lender for the payment of interest which accrues and becomes due
under the Note during construction. Lender is hereby authorized to charge the
Loan directly for such interest payments as they become due. Lender shall
provide Borrower with a monthly interest statement. Depletion of the Interest
Reserve shall not release Borrower from any of Borrower's obligations under the
Loan Documents, including, without limitation, paying interest accruing under
the Note and depositing Borrower's Funds with Lender pursuant to section 2.1(b)
of this Agreement.
10. Taxes. The portion allocated to Taxes, Column D, Item ____,
initially totaling ____ dollars ($____), shall be disbursed for the payment of
Taxes incurred during construction as Taxes become due and payable. Funds with
Lender pursuant to section 2.1(b) of this Agreement.
11. Insurance. The portion allocated to Insurance, Column D, Item ____,
initially totaling ____ dollars ($____), shall be periodically disbursed for the
payment of Insurance premiums during construction as Insurance premiums become
due and payable.
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12. Lender Loan Fee. The portion allocated to Lender Loan Fee, Column
D, Item____, initially totaling ____ dollars ($____), shall be disbursed
directly to Lender for Borrower's credit on the Effective Date for the payment
of Lender's Loan Fee.
13. Permanent Loan Fee. The portion allocated to Permanent Loan Fee,
Column D, Item ____, initially totaling ____ dollars ($____), shall be disbursed
for the payment of a Permanent Loan Fee for permanent financing.
14. Title, Recording and Escrow Expenses. The portion allocated to
Title, Recording and Escrow Expenses, Column D, Item ____, initially totaling
____ dollars ($____), shall be disbursed for the payment of Title, Recording and
Escrow Expenses.
15. Legal Fees. The portion allocated to Legal Fees, Column D, Item
____, initially totaling ____ dollars ($____), shall be disbursed for the
payment of Legal Fees.
16. Promotion and Advertising. The portion allocated to Promotion and
Advertising, Column D, Item ____, initially totaling ____ dollars ($____), shall
be disbursed for the payment of Promotion and Advertising expenses.
17. Commission Expense. The portion allocated to Commission Expense,
Column D, Item ____, initially totaling ____ dollars ($____), shall be disbursed
for the payment of Commission Expense.
18. Organization Expense. The portion allocated to Organization
Expense, Column D, Item ____, initially totaling ____ dollars ($____), shall be
disbursed for the payment of Organization Expense incurred during construction
as Organization Expense becomes due and payable.
19. Soft Costs Contingency. The portion allocated to Soft Cost
Contingency, Column D, Item ____, initially totaling ____ dollars ($____), shall
be periodically reallocated, at the written request of Borrower and with the
written approval of Lender, within the Disbursement Budget, Column D, Items , or
disbursed for cost overruns that have been approved by Lender for Column D,
Items , in accordance with paragraphs hereof, depending upon the intended use of
any such funds.
20. Other Soft Costs. The portion allocated to Other Soft Costs, Column
D, Item ___, initially totaling ____ dollars ($____), shall be disbursed for the
payment of Other Soft Costs.
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