CONSTRUCTION LOAN AGREEMENT
Exhibit 10.1
This
Agreement is made on the date stated below among the Borrower and Lender who are
identified below. This Agreement relates to the manner of
disbursement of the loan proceeds from the Note described below to or for the
benefit of Borrower and for the construction of the Improvements on the Property
described below. The Note is secured by a first and superior Deed of
Trust lien on the Property.
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BORROWER:
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XXXXXX
FAMILY COMMUNITIES, INC.
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LENDER:
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LNZCO,
LLC
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NOTE:
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Promissory
Note dated even date herewith, executed by Borrower payable to Lender in
the principal amount of $[_______]
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PROPERTY:
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[Insert
lot description]
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IMPROVEMENTS/
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BUDGET:
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Construction
of a single family residence [insert Plan] in accordance with the Budget
described on Exhibit A attached
hereto and made a part hereof.
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COMMENCEMENT
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DATE:
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Immediately
after execution.
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COMPLETION
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DATE:
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On
or before 270 days after the date
hereof.
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1.
Agreement to
Loan. Lender shall make a loan (the "Loan") to Borrower in the
amount stated above to be used for (i) $[______] for refinancing a portion of
the purchase price of the Property and (ii) the remainder toward costs of labor
performed and materials furnished (collectively called the "Work") pursuant to
this agreement. The amount loaned will not exceed 65% of the anticipated sales
price of the improved property.
2.
Conditions for Initial
Advance. Prior to, or at the time of the initial advance of
the proceeds of the Loan to Borrower, Lender shall be in receipt of the
following:
a. This
Agreement;
b. Note
executed by Borrower and payable to the order of Lender;
c. Deed
of Trust covering the Property and all Improvements constructed or to be
constructed thereon (collectively called the "Improvements") and securing the
obligations of borrower hereunder, together with all documents executed in
connection with the Loan as may be required by Lender;
d. A
Mortgagee's Policy of Title Insurance, or Interim Construction Binder if
acceptable to Lender, insuring that the lien created by the Deed of Trust
constitutes a valid lien on the Improvements and has the dignity and priority
required by the Lender;
e. Proof
of payment of premiums for insurance policies for (i) public liability insurance
and Worker's Compensation insurance for Borrowers; (ii) hazard insurance
(builder's risk) providing all risk coverage on the Improvements, including
material stored on the Property or elsewhere; and (iii) flood insurance, if
applicable; all policies with standard mortgage clauses attached in favor of
Lender which shall provide that such insurance may not be canceled without
thirty (30) days prior written notice to Lender;
f.
Evidence that the plans and specifications for the construction of the
Improvements and the actual construction thereof have been met and are meeting
the approval of the appropriate subdivision planning committee, if any, and
comply with the requirements of any restrictions and zoning ordinances applying
to the Property;
g.
Satisfactory survey of the Property, with such certificate thereon as Lender may
reasonably require; and
h. Proof
that Borrower has expended on the improvements, for and up to the amounts
budgeted therefore, the amount of the budget in excess of the loan
amount.
i.
Borrower, at Borrower's expense, shall provide Lender any inspections Lender
desires in connection with the improvements and/or property condition, from such
parties as Lender shall require.
j. Proof
acceptable to Lender that the amount funded by Lender never exceeds 65% of the
lesser of the fair market value of the Property as of the date of such funding
(as determined by Lender, or the costs of the property and improvements through
the date of each such advance.
k. Full
compliance with and funding under all other loans and agreements between
Borrower and Lender whether or not related to this loan or this
Property.
l. Such
other documents as may be required by Lender.
3.
Free of
Liens. Borrower agrees to complete the actual construction of
the Improvements free of liens or rights of liens of mechanics, materialmen,
laborers, or any governmental agencies, in accordance with the agreed upon plans
and specifications, and agrees that no materials, fixtures, or any other part of
such Improvements shall be purchased or installed under conditional sales
agreements or under any other arrangements wherein the right is reserved or
accrues to anyone to remove or to repossess any such items, or to consider them
as personal property. In the event that any materials, fixtures, or
any other part of the Improvements shall have been accomplished, purchased, or
installed under conditional sales agreements, or under any other arrangement
prior to the date hereof, Borrower shall furnish waivers in recordable form
deemed sufficient by Lender waiving any rights reserved or accrued to anyone, or
shall furnish a bond deemed sufficient by Lender to assure the priority of the
Lender's lien upon the Improvements.
4.
First Advance/Progress
Payments. A portion of the proceeds of the Loan will be
advanced to refinance a portion of the purchase price for the Property. The
remaining sums will be advanced only for Work done preceding the date of request
as required by Lender, but only after Borrower has expended sums under the
budget in excess of the loan amount. Written application for each
advance, in form approved by Lender, shall be filed a reasonable time before the
date upon which an advance is desired, certified to by the architect, if any,
and (if required by Lender) approved by Lender's inspector, and shall contain
such information as Lender may request. The amount of each advance of
the Loan shall be the amount which has actually been incurred for labor and
materials (but in no event in excess of the amount allocated thereto on the
Budget), as approved by Lender, less amounts for which sums have previously been
advanced and less ten percent (10%) (the "Retainage") if required by Lender, and
such amount shall be advanced under the Loan on behalf of Borrower. Except as
provided herein, all advances shall be evidenced by (a) a check issued jointly
to Borrower and any contractor or supplier, or (b) a deposit to an account
established for that purpose, at Lender's option. Borrower, at Borrower's
expense, shall provide Lender any inspections Lender desires in connection with
the improvements and/or property condition, from such parties as Lender shall
require.
a. Condition
Precedent. As a condition precedent to each disbursement of
the loan proceeds, Borrower shall furnish or cause to be furnished to Lender the
following documents covering each disbursement as required by
Lender:
1. A
certificate executed by Borrower that he is not in default under any of the loan
documents and that all representations and warranties of Borrower contained in
any such loan documents remain accurate, true and correct;
2.
Evidence satisfactory to Lender that the remaining undisbursed funds are
sufficient to complete construction of the premises;
3. A
summary of amounts actually spent from previous advances;
4.
Executed lien waivers in recordable form, deemed sufficient by Lender, signed by
the general contractor and all subcontractors as provided below;
5.
Certificates from Borrower of acceptance of the improvements for which a draw is
made;
6.
Borrower, at Borrower's expense, shall provide Lender any inspections Lender
desires in connection with the improvements and/or property condition, from such
parties as Lender shall require;
7.
Borrower shall provide Lender (i) proof that the house being constructed
contains square feet of liveable space acceptable to Lender, (ii) proof that the
cost of construction does not exceed a per square feet cost acceptable to
Lender, and (iii) proof that Borrower has paid or contributed any sums necessary
in excess of the loan funds available; and
8. Such
other items as Lender shall reasonably require.
b. Disbursements. Disbursements
will be made by Lender in accordance with the schedule hereinabove set forth,
subject, however, to the condition that no advance shall be made unless at the
time of such advance all work previously done has been done in good and
workmanlike manner. If requested by Lender, affidavits or other
evidence shall be furnished establishing to Lender's satisfaction that the
undisbursed loan money is sufficient to complete the building, free and clear of
all liens and encumbrances, and to pay all costs and expenses in connection with
the making of the Loan. Lender may at its option require as a
condition precedent to the making of the first disbursement any or all of the
following:
1.Satisfactory
survey showing the location of the improvements thereon;
2.Partial
or full compliance with the requirements and with the contingencies heretofore
and hereinafter made with regard to the construction in the amount to be
disbursed; and
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3.A
satisfactory showing (including affidavits, lien waivers or receipts if
requested by Lender) of the payment of all bills for labor performed and
material furnished in the construction of the Improvements up to the time of
demand for such payment.
c. No
Default. Each request for an advance shall be deemed a
representation and warranty by Borrower to Lender that, as of the date of such
request, no default exists in the terms of this Agreement. Anything
to the contrary notwithstanding, Lender may in any event withhold payment of any
advance until it has been furnished with satisfactory evidence that all bills
for labor and material have been paid or, in lieu thereof (at Lender's sole
option), it has been provided with lien waivers or bonds deemed sufficient by
Lender. Lender shall have no obligation to require or obtain lien
waivers or receipts, and even if it requires presentation to it of lien waivers
or receipts, it shall have no responsibility for the validity thereof or for the
correctness of the amount thereof. Lender shall have no obligation to
see that the advances made by it are actually used to pay for labor and
materials furnished and used in the construction of the
Improvements. Borrower understands that these are Borrower's
responsibilities, and Borrower assumes all risks in connection
therewith.
d. Limitations on
Advances. Lender reserves the right, at any time when Lender
shall in its sole judgment and discretion deem it necessary or desirable, to
limit a part or all of any or all advances to those amounts necessary to pay the
costs incurred or to be incurred in the actual development or construction of
the Improvements and to exclude from any or all advances those amounts which, in
Lender's sole judgment and discretion, are merely incidental to the development
or construction of the Improvements or are excessive or not properly
documented.
e. Plans and
Specifications. The Borrower shall furnish to Lender from time
to time, as and when reasonably required by Lender, evidence reasonably
satisfactory to Lender that the Borrower has or can obtain all necessary
material as and when required for the completion of the construction in
accordance with the plans and specifications. The Lender shall be the
sole judge of the sufficiency of such evidence and the furnishing thereof
acceptable to lender shall be a condition precedent to the making of any
disbursement on the loan by Lender. If at any time preceding or
during the disbursements of this loan it appears that the net proceeds remaining
undisbursed of the Loan amount will be insufficient to complete the Improvements
on the Property, in accordance with plans and specifications, and to pay all
labor, materials and costs, the Borrower shall, upon demand, deposit with Lender
additional money which shall, when added to the undisbursed portion of such
amount, be sufficient to complete and pay for Improvements, costs and expenses
in connection with the Property and the Improvements thereon. The
amount so deposited shall be disbursed by Lender for and in connection with the
construction at Lender's discretion.
f. Payments to
Subcontractors. Lender may, at its discretion, make payments
for the cost of construction of the Improvements directly to any contractor,
subcontractor, materialman, or to any vender of fixtures and
equipment. Borrower shall have no right of offset, counterclaim or
defense against Lender for any such payments.
5.
Construction. Construction
on the Property herein described is to be commenced according to a schedule
mutually agreeable to the parties hereto and completed according to the approved
plans and specifications on or before the completion date stated above, free and
clear of any claim for labor or material in connection therewith and without
violating or breaching any covenants, conditions or restriction of record, or
any building or zoning ordinances of the city or county in which the premises
are situated, and without encroaching upon any other property, easements, or
rights. Extras or changes in plans and specifications are to be first
approved by Lender in writing and, if required by Lender, an additional sum
shall be deposited with Lender which will in its opinion amply cover costs
thereof. All fixtures and/or chattels used in completing the
construction and installed for use therein shall constitute and become a part of
the realty and to be paid for in full and not purchased under lease, chattel
mortgage or conditional sales contract. The Lender may, but is not
obligated to, apply for and obtain a renewal and extension of a Permanent Loan
Commitment and Borrower agrees to reimburse Lender for fees, if any, paid to the
permanent Lender for such renewal.
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6.
Cessation of
Work. In the event of abandonment or cessation of work on any
improvement contemplated hereby for more than ten (10) days, or failure to
complete in accordance herewith, Lender may, at its option, enter into
possession of the premises and perform and cause to be performed and furnish any
work and materials it deems necessary or desirable for the completion of the
Improvements and their protection, substantially according to the plans and
specifications, and to this end do any act and enter into any contract it deems
desirable for such purposes. Any and all costs incurred by Lender for
the completion and protection of said Improvements shall be paid from the
proceeds of the Loan and as disbursement thereof, and shall be secured under the
terms and provisions of the security instrument. In any such event or
in the event of failure of the Borrower to comply with, or cause to be complied
with, the conditions and the provisions of this commitment for the advancement
of the Loan, Lender may, at its option, apply undisbursed sums of any portion
thereof on the principal amount of the Loan. Such application shall
not constitute a waiver of any, or operate to cure any default that may then or
thereafter exist under the terms of the Note and security instrument, nor shall
any such sums be deemed to be applied on current or accruing payments
thereof. In any such event, Lender may, at its sole option, disburse
any portion of the proceeds of the Loan. The occurrence of any of the
foregoing events shall, in addition to any other rights or remedies accruing to
Lender, constitute an event of default under the security instrument and the
entire Loan shall thereupon become due and payable at the election of
Lender.
7.
Payment of
Assessments. All assessments or installments now due and
payable, all current and prior general taxes, and any other tax, assessment or
charge if required to be paid by the Borrower, shall be paid in full before any
disbursement is made.
8.
Final
Payment. Any Retainage and "holdbacks" shall be payable upon
the expiration of thirty-one (31) days from the date of final completion of the
Improvements and acceptance by Lender and by any financial institution providing
for the permanent financing of the Improvements, if any; provided, however, that
the Improvements shall not be considered complete unless and until all the work
requiring inspection by any homeowners association or similar entity, or
municipal or other governmental authorities having jurisdiction, has been duly
inspected and approved by such entities or authorities as have been duly issued;
and provided further, that Lender may withhold approval of final payment until
evidence satisfactory to Lender shall have been presented to Lender showing
payment in full of all obligations incurred in connection with construction and
completion of the Improvements.
9.
Payments to
Borrower. Borrower shall be entitled to no sums for his labor
or profit on any of the property until completion of Improvements thereon and
until all bills for labor and materials are paid and all interest and attorney's
fees, if any, have been paid. In the event Lender exercises any
rights or takes any action under the foregoing Paragraph 6, Lender shall have no
liability to the Borrower, and the Borrower hereby waives any lien right for its
services in such event.
10. Limitations of Lender's
Liability. Lender has no liability, obligation or
responsibility whatsoever with respect to the Work related to the construction
of the Improvements except to advance the proceeds of the Loan as herein
agreed. Lender is not obligated to inspect the Improvements or the
construction thereof, nor is Lender liable for the performance or default of any
contractor or subcontractor, or for any failure to construct, complete, protect
or insure the Improvements, or for the payment of any cost or expense incurred
in connection therewith, or for the performance or nonperformance of any
obligation of Borrower to any such parties; and nothing, including, without
limitation, any disbursement hereunder or the deposit or acceptance of any
document or instrument, shall be construed as a representation or warranty,
express or implied, on Lender's part. Borrower agrees that Lender has
a valid lien and security interest for all sums advanced under the Loan,
irrespective of a default by any contractor or for his failure to complete or
perform all Work required. Borrower shall have no right of offset, counterclaim
or defense against Lender for payment of any indebtedness owing which Lender has
advanced payment for under the Loan because of any claim Borrower may have
against any contractor. The obligation arising under any contract
between any contractor and Borrower is separate and independent of any
obligation arising hereunder among the undersigned.
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11. Right of
Inspection. Lender shall have the right, but not the
obligation, at any time and from time to time during construction of the
Improvements to inspect the progress of the Work. If the Work is not
being done in accordance with the plans and specifications, Lender shall have
the right to require compliance therewith and the remedying of all defects and
shall also have the right to withhold all advances under the Loan until the Work
complies with the plans and specifications, and if the Work does not so comply
within ten (10) days after notice by Lender, such failure shall constitute a
default under the Loan. By inspecting the Work, Lender assumes no
responsibility to Borrower, any contractor, or any permanent lender for any
defective material or work in the Improvements. Borrower agrees that
the inspection is for the sole purpose of protecting the security of Lender, and
that such inspection is not to be construed as a representation by it that
Lender is in any way responsible for determining strict or substantial
compliance with the plans and specifications, or that the construction shall be
free from faulty material or workmanship. Lender assumes no
responsibility for the completion of the Improvements according to the plans and
specifications; provided, however, if the Improvements fail for any reason to be
completed pursuant to this Agreement, Lender shall have the right, but not the
obligation, to complete the Improvements. Lender shall have the right
to use such funds which Lender may find necessary to advance, to complete, or
partially to complete the Improvements, to pay amounts necessary to obtain the
release of any liens, as may be necessary, in its discretion, to protect its
security in the Improvements, and all money so used shall be secured by the
liens and security interests granted.
12. No Work
Commenced. Borrower, as an inducement to Lender to make the
Loan, represents and warrants to Lender that no material has been furnished,
labor performed, or improvements, erections, or repairs made upon the Property
as of the date hereof; that no material or equipment has been delivered to the
Property; and that no construction contract has been executed and recorded on
any of the Improvements contemplated to be constructed on the Property, all as
of the date hereof. Borrower agrees that no material shall be
furnished, labor performed, or improvements, erections, or repairs made until
after the Deed of Trust has been fully executed by the parties thereto and
recorded in the office of the County Clerk in the county where the Property is
located. Borrower shall make no amendments or modifications to the
plans and specifications without the prior written consent of
Lender.
13. Costs of
Closing. Costs of closing of the Loan shall be paid by the
Borrower including, but not limited to, fees for renewing and extending the
commitment from time to time as Lender may require, attorneys' fees, escrow
fees, if any, recording charges and other expenses incident to the making of the
Loan, including any payment due under the terms of the security
instrument. The Lender shall have the right and option to pay any
such sums from the Loan funds and any such payment shall be deemed a
disbursement of the Loan to the extent thereof.
14. Further
Assurances. During the term of the aforementioned Note the
Borrower agrees to provide such affidavit, title certificate or other evidence,
if, as and when required by Lender which will evidence to the satisfaction of
Lender of the existence and continuance of the security instrument as a first
and valid lien on the premises for the amount to be disbursed and that the title
record does not disclose the existence of any conditions contrary to the
conditions on which this Loan is made.
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15. Assignment of Construction
Contract. As additional security for the payment of the Loan,
Borrower hereby transfers and assigns to Lender all of Borrower's rights and
interest, but not its obligations, in, under, and to all Contracts for the
construction of any part of the Improvements. Neither this assignment nor any
action by Lender shall constitute an assumption by Lender of any obligation
under the Construction Contract, and Borrower shall continue to be liable for
all obligations of Borrower thereunder. Borrower indemnifies and holds Lender
harmless against and from any loss, cost, liability, or expense (including, but
not limited to, attorneys' fees and expenses) resulting from any failure of
Borrower to so perform. Lender shall have the right at any time (but shall have
no obligation) to take in its name or in the name of Borrower such action as
Lender may at any time determine to be necessary or advisable to cure any
default under any Construction Contract or to protect the rights of Borrower or
Lender thereunder. Lender shall incur no liability if any action so
taken by it or in its behalf shall prove to be inadequate or invalid, and
Borrower agrees to hold Lender free and harmless against and from any loss,
cost, liability or expense (including, but not limited to, attorneys' fees and
expenses) incurred in connection with any such action. Borrower hereby
irrevocably constitutes and appoints Lender as Borrower's attorney-in-fact, in
Borrower's name or in Lender's name, to enforce all rights of Borrower under any
Construction Contract.
16. Assignment of
Plans. As additional security for the payment of the Loan,
Borrower hereby transfers and assigns to Lender all of Borrower's right, title,
and interest in and to any and all plans and specifications, and agreements in
connection therewith, regarding the Property and/or Improvements. Lender may use
the Plans for any purpose relating to the Improvements, including but not
limited to inspections of construction and the completion of the Improvements.
Lender's acceptance of this assignment shall not constitute approval of the
Plans by Lender. Lender has no liability or obligation whatsoever in
connection with the Plans and no responsibility for the adequacy thereof or for
the construction of the Improvements contemplated by the
Plans. Lender has no duty to inspect the Improvements, and, if Lender
should inspect the Improvements, Lender shall have no liability or obligation to
Borrower arising out of such inspection. No such inspection nor any
failure by Lender to make objections after any such inspection shall constitute
a representation by Lender that the Improvements are in accordance with the
Plans or constitute a waiver of Lender's right thereafter to insist that the
Improvements be constructed in accordance with the Plans.
17. Miscellaneous.
a. Attorneys'
Fees. If any party should be required to engage an attorney to
file suit for the enforcement or interpretation of this Agreement, the
prevailing party(ies) shall be reimbursed by the non-prevailing party(ies) for
expenses of litigation including reasonable attorneys' fees.
b. Governing
Law. This Agreement and the Construction Agreement shall be
governed and constructed according to the laws of the State of Texas and shall
both be performable in Xxxxxx County, Texas. Borrower and the
Contractor agree and consent to the jurisdiction of the District Courts of
Xxxxxx County, Texas, and of the Untied States District Court for the Western
District of Texas (Austin Division) and acknowledge that such courts shall
constitute proper and convenient forums for the resolution of any actions with
respect to the subject matter hereof and agree that such courts shall be the
sole and exclusive forums for the resolution of any actions with respect to the
subject matter hereof, unless there are mandatory venue liens in another county,
in which case, Borrower and Contractor agree that such actions shall be brought
in such county.
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c. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
d. Assignment. Lender
reserves the right to assign any or all of its rights and obligations hereunder
to any party. Borrower may not assign any rights or obligations
hereunder without the prior written consent of Lender.
e. Severability. Every
provision of this Agreement is intended to be severable. If any terms
or provisions of this Agreement or any of the above mentioned instrument or
other documents called for or contemplated hereby, or any other understandings
contemplated hereby or thereby, shall be invalid, illegal, or unenforceable for
any reason whatsoever, the validity, legality, and enforceability of the
remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
f. Plural
Reference. All pronouns herein shall be considered singular or
plural, and masculine, feminine, or neuter gender, as the case may
be.
DATED:
___________
___, 2009.
| BORROWER'S SIGNATURE: | |||
| XXXXXX FAMILY COMMUNITIES, INC. | |||
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BY:
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| NAME: | |||
| TITLE: | |||
| LENDER'S SIGNATURE: | |||
| LNZCO, LLC | |||
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BY:
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| NAME: | |||
| TITLE: | |||
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EXHIBIT
A
BUDGET
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