EXHIBIT #10.15
CONSTRUCTION LOAN AGREEMENT
THIS AGREEMENT, made and entered into this 23rd day of October, 2003,
by and between NAVARRE CORPORATION, a Minnesota corporation ("Borrower"), whose
address is 0000 00xx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000 and THE BUSINESS BANK
("Lender"), whose address is 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000.
W I T N E S S E T H, THAT:
WHEREAS, Borrower is contemplating building on the Premises described
in Schedule "A" attached hereto the following Improvements: An approximately
115,286 square foot office/warehouse facility to be located on approximately
5.69 acres of land;
WHEREAS, Borrower has made application to Lender for a Construction
Loan to defray the costs of constructing such Improvements;
WHEREAS, Lender has issued to Borrower its Commitment to make a
construction loan in the amount hereinafter specified, subject to compliance
with the terms and conditions of this Construction Loan Agreement;
NOW, THEREFORE, in consideration of the making of the Loan and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
1. "Application" shall mean Borrower's application to the Lender for
the Loan the terms and conditions of which are incorporated herein by reference.
2. "Architect's Contract" shall mean Borrower's contract with the
Project Architect.
3. "Bonds" - INTENTIONALLY DELETED.
4. "Commitment" shall mean Lender's commitment to Borrower agreeing to
make this Construction Loan.
5. "Completion Date" shall mean midnight, June 1, 2004.
6. "Contractor(s)" shall mean those firms directly engaged by Borrower
to construct the Improvements, whether one or more.
7. "Contract Documents" shall mean the Project Architect's Contract,
Plans and
Specifications and the Construction Contracts.
8. "Construction Costs" shall mean land costs, all costs paid to
construct and complete the Improvements including, but not limited to,
demolition costs, site preparation costs, architectural fees, contractor's fees,
engineering fees, survey and environmental costs, all loan fees and carrying
charges, and all costs of labor and material paid or necessarily incurred by
Borrower.
9. "Construction Contracts" shall mean the contracts between Borrower
and Contractor(s) for the furnishing of labor, services or materials to the
Premises in connection with the construction of the Improvements.
10. "Financing Statements" shall mean one or more financing statements
between Borrower and Lender covering the personal property and fixtures included
in the Premises.
11. "Force Majeure" shall mean a delay in the progress of construction
due to any strike, boycott, or similar obstructive action by employees or labor
organizations beyond the control of the Borrower; or by fire, unusual delay in
transportation, acts of God, adverse weather conditions not reasonably
anticipatable, unavoidable casualties or shortages of materials which are beyond
the control of the Borrower.
12. "Improvements" shall mean the structures and other improvements to
be constructed on the Premises in accordance with the Plans and Specifications.
13. "Inspecting Architect" shall mean Xxxxxxx Consulting LLC, the
architect hired by Lender to perform inspections of the Premises.
14. "Loan" shall mean the loan to be made pursuant to the Commitment
and not to exceed the lesser of the total Construction Costs or the maximum loan
amount as specified in the Commitment.
15. "Loan and Carrying Charges" shall mean all fees, taxes and charges
incurred under the Loan and in the construction of the Improvements including,
but not limited to non-refundable commitment fees, loan or brokerage fees paid
to the Lender; interest charges, service and inspection fees, attorney's fees,
title insurance fees and charges, recording fees and insurance premiums.
16. "Loan Documents" shall mean the Note, Mortgage, Financing
Statement, Assignment of Rents, Assignment of Leases and such other documents as
Lender may reasonably require to be given to the Lender as security for the
Loan.
17. "Mortgage" shall mean a Mortgage and Security Agreement to be
executed and delivered by Borrower to Lender and mortgaging the Premises to the
Lender as security for the Loan.
18. "Note" shall mean a Promissory Note to be made by Borrower payable
to the order of Lender to evidence the Loan and being in the principal amount of
the Loan.
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19. "Owner Equity" shall mean the total Construction Costs less the
amount of the Loan.
20. "Plans and Specifications" shall mean the plans and specifications
prepared by the Project Architect, copies of which have been initialed by the
parties hereto and are incorporated by reference into this Agreement.
21. "Premises" shall mean the real property legally described as Xxx 0,
Xxxxx 0, Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxx, together with all
improvements and fixtures thereon.
22. "Project" shall mean the construction of the Improvements on the
Premises.
23. "Project Architect" shall mean KKE Architects, Inc., the architect
retained by Borrower to design and supervise construction of the Improvements.
24. "Sub-Contracts" shall mean the contracts between the Contractor(s)
and its materialmen and mechanics in the furnishing of labor or materials for
the Project.
25. "Sub-Contractors" shall mean those persons furnishing labor or
materials for the Project pursuant to the Sub-Contracts.
26. "Title" shall mean Commonwealth Land Title Insurance Company, the
title insurer issuing the mortgagee's title insurance policy.
ARTICLE II
THE LOAN
Subject to compliance with the provisions of this Agreement Lender
agrees to loan to Borrower. The Loan shall be advanced in stages by Lender to
Title and disbursed by Title pursuant to the provisions of Article VIII hereof.
The Loan, or so much thereof as has been advanced hereunder, shall bear interest
at the rate and shall be repaid in accordance with the terms of the Loan
Documents. The proceeds of the Loan shall be used for the purposes of defraying
total Construction Costs.
ARTICLE III
EXECUTION OF LOAN DOCUMENTS
Prior to any request for funds, Borrower agrees to authorize, execute
and deliver to Lender and record the Loan Documents and other items required by
this Agreement. Borrower agrees the Loan Documents and all other matters
required under this Agreement shall be subject to the approval of Lender's
Counsel.
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ARTICLE IV
CONSTRUCTION OF IMPROVEMENTS
Borrower has commenced construction of the Improvements, and Borrower
agrees to diligently pursue said construction to completion and to supply such
moneys and to perform such duties as may be necessary to complete the
construction of said Improvements pursuant to the Plans and Specifications and
in full compliance with all terms and conditions of the Commitment, this
Agreement and the Loan Documents, all of which shall be accomplished on or
before the Completion Date, and without liens, claims or assessments (actual or
contingent) asserted against the Premises for any material, labor or other items
furnished in connection therewith, and all in full compliance with all
construction, use, building, zoning and other similar requirements of any
pertinent governmental jurisdiction, evidence of satisfactory compliance with
all of which Borrower will provide to Lender upon request therefor by Lender.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
Borrower hereby represents and warrants to the Lender that:
1. VALIDITY OF LOAN DOCUMENTS - The Loan Documents are in all respects legal,
valid and binding according to their terms and grant to Lender a direct, valid
and enforceable first lien upon and security interest in the Premises and the
personal property and fixtures to be located thereon, as well as the rents and
leases of the Premises, but excluding the removable trade fixtures, inventory
and personal property of any tenant of the Premises.
2. PRIORITY OF LIEN ON PERSONALTY - No chattel mortgage, xxxx of sale, security
agreement, financing statement, or other title retention agreement (except those
executed in favor of Lender) has or will be executed with respect to any
personal property, chattel or fixture used in conjunction with the construction,
operation or maintenance of the improvements, except with respect to the
removable trade fixtures, inventory and personal property of the Borrower and of
any tenant of the Premises.
3. CONFLICTING TRANSACTION OF BORROWER - The consummation of the transactions
hereby contemplated and the performance of the obligations of Borrower under and
by virtue of the Loan Documents will not result in any breach of, or constitute
a default under, any mortgage, lease, bank loan or credit agreement, corporate
charter, by-laws, partnership agreement, or other instrument to which Borrower
is a party or by which it may be bound or affected.
4. PENDING LITIGATION - There are no actions, suits or proceedings pending, or
to the knowledge of Borrower threatened, against or affecting it or the
Premises, or involving the validity or enforceability of any of the Loan
Documents or the priority of the lien thereof, at law or in equity, or before or
by any governmental authority, except actions, suits and proceedings which are
fully covered by insurance or which, if adversely determined would not
substantially impair the ability of Borrower to perform each and every one of
its obligations under and by virtue of the Loan Documents; and to the Borrower's
knowledge it is not in default with respect to any order, writ, injunction,
decree or demand of any court or any governmental authority.
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5. VIOLATIONS OF GOVERNMENTAL LAW, ORDINANCES OR REGULATIONS - Borrower has no
knowledge of any violations or notices of violations of any federal or state law
or municipal ordinance or order or requirement of the State in which the
Premises are located or any municipal department or other governmental authority
having jurisdiction affecting the Premises, which violations in any way relate
to or affect the Premises.
6. COMPLIANCE WITH ZONING ORDINANCES AND SIMILAR LAWS - The Plans and
Specifications and construction pursuant thereto and the use of the Premises
contemplated thereby comply and will comply with all governmental laws and
regulations and requirements, zoning ordinances, standards, and regulations of
all governmental bodies exercising jurisdiction over the Premises, including
environmental protection and equal employment regulations, and appropriate
supervising boards of fire underwriters and similar agencies. Borrower agrees to
provide the Project Architect's certification to such effect.
7. BORROWER'S STATUS AND AUTHORITY - If the Borrower be a corporation, trust or
a partnership, Borrower warrants and represents that (i) it is a duly organized,
existing and in good standing under the laws of the state in which it is
incorporated or created; (ii) it is duly qualified to do business and is in good
standing in the state in which the Premises are located; (iii) it has the
corporate or other power, authority and legal right to carry on the business now
being conducted by it and to engage in the transactions contemplated by this
Agreement and the Loan Documents; and (iv) the execution and delivery of this
Agreement and the Loan Documents and the performance and observance of the
provisions hereof and thereof have been duly authorized by all necessary trust,
partnership, or corporate actions of Borrower. Borrower will furnish such
resolutions, affidavits and opinions of counsel to such effect as Lender may
reasonably require.
8. AVAILABILITY OF UTILITIES - All utility services necessary for the proper
operation of the Improvements for their intended purposes are available at the
Premises or will be available at the Premises prior to commencement of
Construction, at standard utility rates and hook-up charges, including water
supply, storm and sanitary sewer facilities, gas, electricity and telephone
facilities. Borrower shall furnish evidence of such availability of utilities
from time to time at Lender's request.
9. BUILDING PERMITS - All building permits required for the construction of the
Improvements have been, or will be obtained prior to the commencement of the
construction of the Improvements and copies of same will be delivered to Lender.
10. CONDITION OF PREMISES - Except as disclosed to the Lender prior to the date
hereof, the Premises are not now damaged or injured as a result of any fire,
explosion, accident, flood or other casualty, nor subject to any action in
eminent domain.
11. APPROVAL OF PLANS AND SPECIFICATIONS - The Plans and Specifications conform
to the requirements and conditions set out by applicable law or any effective
restrictive covenant, to all governmental authorities which exercise
jurisdiction over the Premises or the construction thereon, no funds shall be
advanced until said Plans and Specifications shall have been approved by Lender.
Except for tenant finishes that do not exceed the budgeted amount as shown on
the Sworn
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Construction Statement. No changes are to be made in the Plans and
Specifications as approved without Lender's prior consent.
12. CONSTRUCTION CONTRACTS - Borrower has entered into contracts with the
Contractor(s) or separate contracts with materialmen and laborers providing for
the construction of the Improvements. Borrower will cause the Contractor(s) to
promptly furnish Lender with the complete list of all Sub-contractors or
entities which Contractor(s) propose to engage to furnish labor and/or materials
in constructing the Improvements and will from time to time furnish Lender with
true copies of all Contracts and Sub-contracts therefor and with the terms of
all verbal agreements therefor.
13. BROKERAGE COMMISSIONS - No brokerage commissions are due in connection with
the transaction contemplated hereby or if there are commissions due or payable
the same will be paid by Borrower. Borrower agrees to and shall indemnify Lender
from any liability, claims or losses arising by reason of any such brokerage
commissions. This provision shall survive the repayment of the Loan and shall
continue in full force and effect so long as the possibility of such liability,
claims or losses exists.
14. NO PRIOR WORK - Except as may have been permitted by Lender and Title
pursuant to its early start coverage, no work or construction has been commenced
or will be commenced by or on behalf of Borrower on the Premises, nor has
Borrower entered into any contracts or agreements for such work or construction
which could result in the imposition of a mechanic's or materialmen's lien on
the Premises or the Improvements prior to or on parity with the lien of the
security interest evidenced by the Mortgage.
15. ENVIRONMENTAL IMPACT STATEMENT - All required environmental impact
statements as required by any governmental authority having jurisdiction over
the Premises or the construction of the Improvements have been duly filed and
approved.
16. ACCESS - The Premises front on a publicly maintained road or street or have
access to such a road or street under easement which is not subject to a
reversion in favor of any party.
17. FINANCIAL INFORMATION - Any financial statements heretofore delivered to
Lender are true and correct in all respects, have been prepared in accordance
with generally accepted accounting practice, and fairly present the respective
financial conditions of the subject thereof as of the respective dates thereof
and no materially adverse change has occurred in the financial conditions
reflected therein since the respective dates thereof.
ARTICLE VI
COVENANTS OF BORROWER
Borrower hereby covenants and agrees with Lender as follows:
1. SURVEYS - Prior to execution of any Loan Documents and prior to any request
for a Disbursement, Borrower shall furnish to Lender three copies of a current
perimeter land survey, in form and substance satisfactory to Lender, certified
to Lender, giving a description of the Premises
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and showing all encroachments onto or from the Premises, currently certified by
a registered surveyor and bearing his registry number and showing access rights,
easements, or utilities, rights of way, all setback requirements upon the
Premises, improvements, matters affecting title and such other items as Lender
may reasonably request. After the foundation walls for the Improvements are
completed, the Borrower shall, upon Lender's request, promptly furnish the
Lender with three copies of the survey revised to show the location of the
Improvements and certifying that the Improvements are within the boundary lines
of the Premises and the building restriction lines, if any, and that the
Improvements do not encroach upon any easement, utility or right of way.
2. TITLE INSURANCE - Prior to any request for Disbursement, Borrower shall
furnish Lender with an ALTA policy of title insurance in form and substance
satisfactory to Lender issued at the Borrower's expense and written by Title
insuring the Premises to be marketable, free from exceptions for mechanic's and
materialmen's liens and free from other exceptions not previously approved by
the Lender, naming Lender as an insured and insuring that the Mortgage is a
valid first lien to the extent of advances made or to be made hereunder subject
only to such exceptions as may be approved by Lender.
3. OTHER DOCUMENTS - To furnish the Lender with copies of such other documents,
instruments or materials as may be required by the Commitment.
4. RESTRICTIONS ON CONVEYANCE OR SECONDARY FINANCING - Borrower will not
transfer, sell, convey or encumber the Premises or subject the Premises to any
secondary financing in any way without the written consent of the Lender save
and except that Borrower may enter into an agreement to sell the Premises
provided that the Loan shall be due and payable in full upon the closing of such
sale.
5. INSURANCE - To obtain or cause Contractor(s) to obtain and maintain such
insurance or evidence of insurance as Lender may reasonably require, including
but not limited to the following:
(a) BUILDER'S RISK INSURANCE - Builder's Risk Insurance written on the
so-called "Builder's Risk-Completed Value Basis" in an amount equal to the full
replacement cost of the Improvements at the date of completion with coverage
available on the so-called multiple peril form of policy, including coverage
against collapse and water damage, with standard non-contributing mortgagee
clauses, such insurance to be in such amounts and form and written by such
companies as shall be approved by Lender, and the originals of such policies
(together with appropriate endorsement thereto, evidence of payment of premiums
thereon and written agreements by the insurer or insurers therein to give Lender
ten (10) days' prior written notice of any intention to cancel) shall be
promptly delivered to Lender, said insurance coverage to be kept in full force
and effect at all times until the completion of construction of the
Improvements.
(b) HAZARD INSURANCE - Fire and Extended Coverage Insurance, and such
other hazard insurance as Lender may require in an amount equal to the full
replacement cost of the Improvements with standard non-contributing mortgagee
clauses, such insurance to be in such amounts and form and written by such
companies as shall be approved by Lender, and the originals of such policies
(together with appropriate endorsements thereto, evidence of payment of premiums
thereon and written agreement by the insurer or insurers therein to give Lender
ten (10) days' prior
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written notice of any intention to cancel) shall be promptly obtained and
delivered to Lender immediately upon completion of the construction of the
Improvements and before any portion is occupied by Borrower or any tenant of
Borrower with such insurance to be kept in full force and effect at all times
thereafter until the payment in full of the Loan evidenced by the Note.
(c) PUBLIC LIABILITY - Comprehensive public liability insurance
(including operations, contingent liability operations, operations of
sub-contractors, completed operations and contractual liability insurance) in
acceptable limits of coverage.
(d) WORKMEN'S COMPENSATION INSURANCE - Evidence of compliance with the
required coverage under statutory workmen's compensation requirements.
(e) BONDS - Unless waived by the Lender to promptly furnish to Lender
originals of the Bonds written in such amounts and form by a surety acceptable
to Lender together with evidence of payment of the premiums therein and written
agreement by the surety to give Lender ten (10) days' prior written notice of
any intention to cancel the same.
6. COLLECTION OF INSURANCE PROCEEDS - To cooperate with Lender in obtaining for
Lender the benefits of any insurance or other proceeds lawfully or equitably
payable to it in connection with the transaction contemplated hereby and the
collection of any indebtedness or obligation of the Borrower to Lender incurred
hereunder (including the payment by Borrower of the expense of an independent
appraisal on behalf of Lender in case of a fire or other casualty affecting the
Premises).
7. APPLICATION OF LOAN PROCEEDS - To use the proceeds of the Loan solely for the
purpose of paying for Construction Costs and such incidental costs relative to
the construction as may be approved from time to time in writing by Lender, and
in no event to use any of the Loan proceeds for personal, corporate or other
purposes.
8. EXPENSES - To pay all costs of closing the Loan and all expenses of Lender
with respect thereto, including, but not limited to, legal fees by Lender's
counsel and all other reasonable attorney's fees, costs of title insurance,
transfer taxes, license and permit fees, recording expenses, surveys, intangible
taxes, appraisal fees, Inspecting Architect fees, expenses of foreclosure
(including maximum lawful attorney's fees) and similar items.
9. LAWS, ORDINANCES AND ETC. - To comply promptly with any law, ordinance,
order, rule or regulation of all authorities exercising jurisdiction over the
Premises or the construction thereon, including appropriate supervising boards
of fire underwriters and similar agencies and the requirements of any insurer
issuing coverage on the Project.
10. RIGHT OF LENDER TO INSPECT PREMISES - To permit Lender, Title and their
representatives and agents to enter upon the Premises and to inspect the
Improvements and all materials to be used in construction thereof and to
cooperate and cause Contractor(s) to cooperate with Lender, Title and their
representatives and agents during such inspections; provided, however, that this
provision shall not be deemed to impose upon Lender or Title any duty or
obligation whatsoever to undertake such inspections, to correct any defects in
the Improvements or to notify
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any person with respect thereto.
11. BOOKS AND RECORDS - To set up and maintain accurate and complete books,
accounts and records pertaining to the Project including the working drawings in
a manner reasonably acceptable to Lender. The Lender, Title and Inspecting
Architect shall have the right at all reasonable times to inspect, examine and
copy all books and records of Borrower relating to the Project, and to enter and
have free access to the Premises and Improvements and to inspect all work done,
labor performed and material furnished in or about the Project. Notwithstanding
the foregoing, Borrower shall be responsible for making inspections as to the
Improvements during the course of construction and shall determine to its own
satisfaction that the work done or materials supplied by the Contractor(s) and
all Subcontractors has been properly supplied or done in accordance with the
applicable contracts. Borrower will hold Lender and Title harmless from and
Lender and Title shall have and have no liability or obligation of any kind to
Borrower or creditors of Borrower in connection with any defective, improper or
inadequate workmanship or materials brought in or related to the Improvements or
the Premises, or any mechanic's liens arising as a result of such workmanship or
materials. Upon Lender's request, Borrower shall replace or cause to be replaced
any such work or material found to be deficient. Any inspections made by
Inspecting Architect, Title or Lender are for the sole benefit of Lender and
neither Borrower nor any creditor, tenant or vendee of Borrower shall be
entitled to rely on such inspection.
12. DELIVERY OF LEASES TO LENDER - To deliver to Lender an executed counterpart
of all Leases of the Premises and amendments thereto whether executed before or
after the date of this Agreement, together with a specific assignment to Lender
of said Leases, when so required by Lender. Unless otherwise agreed to by
Lender, all leases are to be subordinate to the Mortgage, however, the Lender
reserves the right to require specific leases to be made superior to the
Mortgage. Borrower agrees that it will obtain execution by tenants of such
instruments including attornment agreements, acceptance letters and estoppel
certificates as shall be required by Lender from time to time. Borrower further
agrees that it will not amend any lease or enter into any future lease upon the
Premises without the prior written consent of Lender and that Lender, at its
option, but at Borrower's expense, may record any such lease.
13. CORRECTION OF DEFECTS - To promptly correct any structural defects in the
Improvements or any departure from the Plans and Specifications not previously
approved by Lender. The advance of any Loan proceeds shall not constitute a
waiver of Lender's right to require compliance with this covenant.
14. SIGN REGARDING CONSTRUCTION FINANCING - To allow Lender to erect and
maintain at a suitable site on the Premises a sign indicating that construction
financing is being provided by Lender.
15. ADDITIONAL DOCUMENTS - To furnish to Lender all instruments, documents,
initial surveys, footing or foundation surveys, certificates, plans and
specifications, appraisals, financial statements, title and other insurance
reports and agreements and each and every other document and instrument required
to be furnished by the terms of the Commitment, all at Borrower's expense; to
assign and deliver to Lender such documents, instruments, assignments and other
writings, and to do such other acts necessary or desirable to preserve and
protect the collateral at any time securing
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or intended to secure the Note, as Lender may require; and to do and execute all
and such further lawful and reasonable acts, conveyances and assurances for the
carrying out of the intents and purposes of this Agreement and the Commitment,
as Lender shall reasonably require from time to time.
16. ARCHITECTS AND CONSTRUCTION CONTRACTS - To permit no default under the terms
of the Architects or Construction Contracts; To waive none of the obligations of
the parties thereunder; To do no act which would relieve such parties from their
obligations thereunder; To make no amendments to such contracts, without the
prior written consent of Lender; To enter into no change orders that result in
an increase or decrease in the Contract Sum by more than $25,000.00 for any line
item, or more than $100,000.00 in the aggregate (provided that copies of all
change orders shall be provided to Lender upon the execution thereof by
Borrower, each change order shall be reflected on the applicable draw request
form and no change order, whether consented to by Lender or not, shall be deemed
to be a waiver or modification of the obligation to keep the Loan in balance as
required under paragraph VII, 3., below) or extras without Lender's consent; To
allow all such contracts to be subject to the approval of Lender for its loan
purposes; To allow Lender to take advantage of all the rights and benefits of
the contracts upon any default by Borrower; and to submit evidence to Lender
that both the Architect and the Contractor(s) will permit Lender to acquire
Borrower's interest under their respective contracts and the Contract Documents
without additional charge or fee should an event of default occur hereunder.
17. ENFORCE PERFORMANCE OF SUB-CONTRACTS - To enforce or cause to be enforced
the prompt performance of the Sub-Contracts in accordance with their terms and
not to approve any changes in the same without Lender's prior written consent.
18. COMPLIANCE WITH RULES - To comply with and to require the Contractor(s) to
comply with all rules, regulations, ordinances and laws bearing on the conduct
of the work on the Improvements, including the requirements of any insurer
issuing coverage on the Project and the requirements of any supervising boards
of fire underwriters or similar agencies.
19. OPINIONS OF COUNSEL - To furnish such opinions of counsel as may be
reasonably requested of the Borrower in connection with the matters contemplated
by this Agreement.
20. SOIL TESTS - To provide the Lender with a soil report prepared by an
acceptable engineer certifying as to the status of the soil conditions on the
Premises, the need or lack of need for special pilings and foundations and that
either any pilings and foundation necessary to support the Improvements have
been placed in a manner and quantity sufficient to provide the required support
or that no such pilings and foundations are necessary for the support and
construction of the Improvements.
21. MARKETABLE TITLE - To execute and deliver or cause to be executed and
delivered such instruments as may be required by the Lender and Title to provide
Lender with a marketable, valid and First Lien on the Premises subject only to
such exceptions to title as may be approved by Lender.
22. APPRAISAL - To deliver to Lender an MAI Appraisal of the Premises
satisfactory to
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Lender and conforming to the requirements of the Commitment.
ARTICLE VII
CONDITIONS PRECEDENT TO A DISBURSEMENT
It shall be a condition precedent to each Disbursement under this Loan Agreement
that:
1. LOAN DOCUMENTS - The Loan Documents shall have been duly executed and
delivered to Lender and shall be in full force and effect.
2. OWNER EQUITY - Borrower shall have paid all of the Owner Equity funds into
the Project before the first Disbursement and Borrower shall deliver evidence of
such payment reasonably satisfactory to Lender.
3. LOAN BALANCE - As of the date immediately prior to any Disbursement, the
total amount of unadvanced proceeds of the Loan shall be sufficient, in the
opinion of Lender and Title to complete the Improvements free of liens. To the
extent the total of the unadvanced proceeds of the Loan shall be insufficient,
at any time, in Lender's or Title's opinion, to complete the Improvements, or be
less than the Total Construction Costs not yet paid for or not yet incurred, the
Borrower shall immediately deposit with the Lender or with Title, as additional
Owner Equity funds, an amount equal to such deficiency and such additional Owner
Equity funds shall be disbursed by Title prior to the Disbursement of any
further advance or advances under this Agreement.
4. NO DEFAULT - No event of default shall exist under this Agreement or the Loan
Documents.
5. REPRESENTATIONS AND WARRANTIES - The representations and warranties in
Article V hereof shall be true and correct on and as of the date of each
Disbursement.
6. COVENANTS - Borrower shall have complied with all of the covenants made by it
in Article VI hereof.
7. SWORN CONSTRUCTION STATEMENT - Prior to the initial disbursement hereunder,
the Borrower shall have submitted to Lender and Title a Construction Cost
Statement sworn to by Borrower and Contractor(s) and all major Sub-Contractors
or materialmen who shall then be engaged in furnishing labor, materials or
supplies for the Improvements. The list should show the name of each and every
Contractor, Sub-Contractor and materialman, his address and an estimate of the
dollar value of the work, labor and materials to be done or supplied and a
general statement of the nature of the work to be done or materials to be
supplied by each. The Borrower shall furnish to the Lender any amendments or
additions to the original statement as so submitted. The Borrower shall also
submit a sworn statement of all Loan and carrying charges certified to Lender.
8. APPLICATION FOR PAYMENT - Lender shall have received an Application for
Payment pursuant to Article VIII hereof.
9. TITLE - Title shall, if required, issue its endorsement to the title policy
insuring the
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Mortgage to be a first lien under the policy in the aggregate amounts of all
prior Disbursements and the requested Disbursement.
10. WORK IN PLACE - All work or materials for which a Disbursement is requested
shall be in place and incorporated into the Improvements.
ARTICLE VIII
METHODS OF DISBURSEMENT OF LOAN PROCEEDS
The Loan shall be disbursed as follows:
1. PROCEDURE - Not more often than monthly, Borrower may submit an Application
for Payment requesting the Disbursement of proceeds under the Loan, which
request shall be submitted to Lender and to Title at least five (5) business
days prior to the date on which a Disbursement is requested. Provided the
conditions of this Loan Agreement are met on the date requested for such
advance, Lender shall advance to Title amounts certified to be currently payable
by Borrower (excluding the retainage hereinafter specified) for the then
incurred portion of Total Construction Costs pursuant to the Application for
Payment. All costs shall have been approved in writing by the Project Architect,
Borrower, Contractor, and if required by Lender, by the Inspecting Architect.
All interest payable on the Note and all Loan and Carrying Charges shall be
approved by the Lender and to the extent payable to Lender need not be disbursed
to Title but may be immediately and automatically credited by Lender to the Loan
account. Title shall disburse all funds advanced to it by Lender in accordance
with the terms and provisions of this Agreement and any special escrow
requirements imposed by Title as a condition to its acting as the disbursing
agent hereunder. The Proceeds of the Loan shall bear interest from and after the
date of disbursement to Title or the date of credit by Lender provided that in
the event Title shall fail to disburse any advances within five (5) business
days after the date set for an advance, the Borrower may request Title to return
said advance to Lender and interest on such advance shall xxxxx from and after
the date of such return. Any amounts disbursed to Title and returned by Title to
the Lender shall not be deemed to be advanced under the Loan Documents. Each
Application for Payment shall clearly set forth the amounts due to Borrower and
to each Contractor out of the requested Loan and shall upon the request of Title
or the Lender be accompanied by the following:
(a) A certificate signed by the Borrower, Project Architect and
Contractor certifying as to the Improvements completed at the time; that each
contractor or materialman specified in the relevant draw request has
satisfactorily completed the work or furnished the materials for which payment
is requested in accordance with the applicable contract; that all work for which
a draw request is made conforms to the Contract Documents and any approved
changes, and is in place; and in the case of the Contractor and Borrower that
sufficient funds remain of the undisbursed loan amounts to complete the Project
and that all funds previously disbursed have been applied as per the previous
Requests for Disbursement.
(b) A certificate by the Inspecting Architect stating that all work
done as specified in the draw request conforms to the Contract Documents; that
the amount requested for work done or material furnished reasonably approximates
the value of such work or materials and is in place and that undisbursed funds
hereunder are then, in its opinion, sufficient to complete the Project.
12
(c) Conditional Waivers of Mechanic's Liens and Materialman's Liens
executed by all Contractor(s), Sub-Contractors and workmen and materialmen for
all work done and all materials furnished to the Premises and included in such
current draw request along with Unconditional Waivers for payments made on the
prior payments disbursed.
(d) Such other supporting evidence, including invoices and receipts as
may be requested by Lender or Title to substantiate all payments which are to be
made out of the Disbursement or to substantiate all payments then made in
respect to the Project.
2. INTEREST ADVANCE - If interest has accrued on the Loan and is unpaid or fees
are payable to the Lender hereunder, Lender shall be, and hereby is, authorized
at any time to advance to itself from the proceeds of the Loan the total amount
of such accrued interest and fees, whether or not a draw request has been
submitted by the Borrower and the same shall be deemed to be an advance of the
proceeds of the Loan under this Agreement in the same manner and with the same
effect as if advanced under the provisions above. It is understood Lender may
establish an automatic interest reserve whereby Lender may withdraw from the
Loan account on a regular basis the accrued interest on the Loan and credit the
Loan balance with the same.
3. ASSESSMENT AND TAX ADVANCE - Unless Borrower has paid the taxes and
assessments on or before the date on which they are due, as taxes and
assessments become due on the Premises, Lender shall be, and hereby is,
authorized to advance to itself automatically from the proceeds of the Loan, the
total amount of such taxes and assessments and the same shall be deemed to be an
advance of the proceeds of the Loan under this Agreement in the same manner and
with the same effect as if advanced under the provisions above. It is understood
Lender will establish an automatic tax reserve whereby Lender will withdraw from
the Loan on a regular basis the taxes and assessments on the Premises and credit
the Loan balance with the same.
4. DISBURSE UNDER LOAN DOCUMENT - All sums advanced and disbursed hereunder
shall be disbursed under and shall be secured by the Loan Documents.
5. PAYMENTS TO SUBCONTRACTORS - In its discretion Title may make payments
directly to any Subcontractor.
6. RETAINAGE - Each Disbursement shall be limited to an amount equal to
ninety-five percent (95%) of the value, exclusive of Borrower and/or
Contractor's profit and overhead, of the materials and labor furnished to the
Premises and the balance (herein called the Retainage) shall be retained by
Lender, provided that thirty (30) days after completion by each of his
Subcontract, Lender will disburse to such party, or to the Contractor on behalf
of such party the Retainage withheld from said party, provided that as a
condition to such disbursement the Borrower, the Project Architect and the
Inspecting Architect shall certify to Lender the date that such Subcontractor's
Subcontract has been fully and satisfactorily completed and the Subcontractor
shall have supplied Title with satisfactory final lien waivers, including final
lien waivers for any of its submaterialmen or sub-contractors and the
requirements of any bonding company issuing the Bonds shall have been fulfilled.
Any Retainage due the Contractor(s) for work performed or materials furnished by
the Contractor(s) shall be disbursed on the Final Disbursement pursuant to
Article IX
13
hereof.
ARTICLE IX
FINAL LOAN BALANCE
At no time and in no event shall Lender be obligated to disburse the balance of
the proceeds of the Loan, including any Retainage until:
1. Lender shall have received satisfactory evidence of the final
completion of the Improvements in accordance with the Contract Documents and the
Certificate of Final Completion from the Project Architect accepted by the
Contractor and Borrower.
2. Lender shall have received a satisfactory as-built survey reflecting
the final location of the Improvements as fully completed on the Premises in
accordance with the Contract Documents, said survey to be prepared by a
registered or licensed surveyor bearing his registry number, certifying to
Lender as to the legal description of the Premises and showing all Improvements
located on the Premises and indicating the street address of the Improvements,
absence of any encroachments on the Premises or from the Premises onto adjacent
land, showing all access points, and showing conformance to all set back
requirements and delineating all utility easements, rights of way and other
matters affecting the Premises, and certifying as to the total acreage of the
land, the exterior dimensions of the Improvements, and the number of parking
spaces, if any, and such other matters as Lender may reasonably request.
3. Lender shall have received a requisite affidavit of the Borrower,
Contractor and Project Architect, and approved by the Inspecting Architect
certifying as to the final cost of the Improvements.
4. Title shall have been furnished with such final lien waivers
sufficient in the opinion of Title to dissolve any possible Mechanic's and
Materialman's Liens affecting title to the Premises.
5. Lender shall have received evidence that all of the terms,
provisions and conditions on the part of the Borrower to be performed or caused
to be performed have been fulfilled to the satisfaction of Lender.
6. Lender shall have received a copy of the Final Certificate of
Occupancy issued by the appropriate governmental authority covering the
Improvements indicating that the Improvements as built comply with all building
codes and zoning ordinances.
7. All remaining uncompleted "punch list" items shall have been
satisfactorily completed.
8. The requirements of all bonding companies with respect to release of
Retainage shall have been met.
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ARTICLE X
EVENTS OF DEFAULT
An "event of default" shall be deemed to have occurred hereunder if:
1. DEFAULT UNDER LOAN DOCUMENTS - Any default or Event of Default occurs under
any of the Loan Documents and continues after the expiration of all grace
periods provided for therein as defined therein; or
2. FAILURE TO COMPLETE CONSTRUCTION - Borrower shall fail for any reason to
complete the construction of the Improvements by the Completion Date, except
that in the event of a Force Majeure, in which event the Completion Date shall
be extended as is reasonably necessary; or
3. BREACH OF AGREEMENT - Borrower breaches or fails to perform, observe or meet
any covenant or condition of this Agreement and such failure continues after the
expiration of all grace periods; or
4. BREACH OF WARRANTY - Any warranties made or agreed to be made in any of the
Loan Documents or this Agreement shall be breached by Borrower or shall prove to
be false or misleading; or
5. FILING OF LIENS AGAINST THE PREMISES - Any lien for labor, material, taxes or
otherwise shall be filed against the Premises and such lien shall not be
immediately bonded over to Lender's satisfaction; or
6. LITIGATION AGAINST BORROWER - Any suit shall be filed against Borrower, which
if adversely determined, could substantially impair the ability of Borrower to
perform each and every one of its obligations under and by virtue of the Loan
Documents; or
7. LEVY UPON THE PREMISES - A levy be made under any process on the Premises and
such levy shall not be immediately Bonded over and shall continue unstayed for
sixty (60) days or more; or
8. ACCELERATION OF OTHER DEBTS - Borrower does, or omits to do, any act, or any
event occurs, as a result of which any material obligation of Borrower, not
arising hereunder, may be declared immediately due and payable by the Holder
thereof and which affects Borrower's ability to perform its obligations
hereunder; or
9. TRANSFER OF PREMISES - Borrower shall without the prior written consent of
Lender, voluntarily or by operation of law, sell, transfer, convey or encumber
all or any part of its interest in the Premises or in any of the personalty
located thereon, or used or intended to be used in connection therewith; or
10. FAILURE TO DISPROVE DEFAULT - Lender shall reasonably suspect the occurrence
of one or more events of default and Borrower upon written request of the
Lender, shall fail to provide
15
evidence reasonably satisfactory to Lender that such event or events of default
have not in fact occurred; or
11. ABANDONMENT - Except in the event of a Force Majeure, Borrower abandons the
project or delays or ceases work thereon for a period of fifteen (l5) days, or
delays construction or suffers construction to be delayed for any period of time
for any reason whatsoever so that completion of Improvements cannot be
accomplished in the judgment of Lender on or before the Completion Date; or
12. BANKRUPTCY - Borrower shall make an assignment for the benefit of its
creditors or shall admit in writing its inability to pay its debts as they
become due or shall file a petition in bankruptcy or shall be adjudicated a
bankrupt or insolvent or shall file a petition seeking any reorganization,
dissolution, liquidation, arrangement, composition, readjustment, or similar
relief under any present or future bankruptcy or insolvency statute, law or
regulation, or shall file an answer admitting to or not contesting the material
allegations of a petition filed against it in any such proceedings, or shall not
have the same dismissed or vacated, or shall seek or consent or acquiesce in the
appointment of any trustee, receiver or liquidator of a material part of its
properties, or shall not after the appointment without the consent or
acquiescence of it of a trustee, receiver, or liquidator of any material part of
its properties have such receiver, liquidator or appointment vacated; or
13. EXECUTION LEVY - Execution shall have been levied against the Premises or
other properties subject to the Mortgage or any lien creditors commence suit to
enforce a judgment lien against the Premises or such action or suit shall have
been brought and shall not be immediately bonded over and shall continue
unstayed and in effect for a period of more than 60 consecutive days; or
14. ATTACHMENT - Any part of the Lender's commitment to make the advances
hereunder shall at any time be subject or liable to attachment or levy at the
suit of any creditor of the Borrower or at the suit of any subcontractor or
creditor of the Contractor which shall not be removed by either payment or
bonding over such claim to the reasonable satisfaction of the Lender; or
15. DESTRUCTION - Any part of the Improvements are materially damaged or
destroyed by fire or other casualty and the loss shall prove not to be
adequately covered by insurance actually collected or in the process of
collection; or
16. EMINENT DOMAIN - The Premises shall be the subject of an eminent domain
proceeding or a temporary taking.
ARTICLE XI
REMEDIES OF LENDER
Borrower hereby agrees that the occurrence of any one or more of the events of
default set out in Article X hereof shall also constitute an event of default
under each of the Loan Documents, thereby entitling Lender, at its option, to
proceed to exercise any or all of the following remedies:
1. EXERCISE OF REMEDIES - To exercise any of the various remedies provided in
any of
16
the Loan Documents, including the acceleration of the indebtedness evidenced by
the Note and the foreclosure of the Mortgage, and such other rights, options and
privileges provided by law.
2. CUMULATIVE RIGHTS - Cumulatively to exercise all other rights, options and
privileges provided by law.
3. CEASE MAKING ADVANCES - To refrain from making any advances under this
Agreement but Lender may make advances after the happening of any such event
without thereby waiving the right to refrain from making other further advances
or to exercise any of the other rights Lender may have.
4. RIGHTS TO ENTER - To require Borrower to vacate the Premises and permit
Lender (whether prior to a foreclosure sale or during any period of redemption
after a foreclosure sale):
(a) To enter into possession;
(b) To perform or cause to be performed any and all work and labor
necessary to complete the Improvements in accordance with the Plans and
Specifications;
(c) To employ security watchmen to protect the Premises; and
(d) To disburse that portion of the Loan Proceeds not previously
disbursed (including any Retainage) to the extent necessary to complete the
construction of the Improvements in accordance with the Contract Documents and
if the completion requires a larger sum than the remaining undisbursed portion
of the Loan, to disburse such additional funds, all of which funds so disbursed
by Lender shall be deemed to have been disbursed to Borrower and shall be
secured by the Mortgage. For this purpose, Borrower hereby constitutes and
appoints Lender its true and lawful attorney-in-fact with full power of
substitution to complete the construction of the Improvements in the name of the
Borrower, and hereby empowers Lender as said attorney to take all actions
necessary in connection therewith including but not limited to using any funds
of Borrower including any balance which may be held in escrow and any funds
which may remain unadvanced hereunder for the purpose of completing the said
portion of the Improvements in the manner called for by the Contract Documents;
to make such additions and changes and corrections in the Contract Documents
which shall be necessary or desirable to complete the said portion of the
Improvements in substantially the manner contemplated by the Contract Documents;
to employ such contractors, subcontractors, agents, architects, and inspectors
as shall be required for said purposes; to pay, settle or compromise all
existing or future bills and claims which are or may be liens against said
Premises, or may be necessary or desirable for the completion of the said
portion of the Improvements or the clearance of title to the Premises; to
execute all applications and certificates in the name of Borrower which may be
required by any construction contract and to do any and every act with respect
to the construction of the said portion of the Improvements which Borrower may
do in its own behalf. It is understood and agreed that this power of attorney
shall be deemed to be a power coupled with an interest which cannot be revoked
by death or otherwise. Said attorney-in-fact shall also have power to prosecute
and defend all actions and proceedings in connection with the construction of
the said portion of the Improvements and to take such action and require such
performance as it deems necessary. In accordance therewith, Borrower hereby
17
assigns and quitclaims unto Lender all sums to be advanced hereunder including
Retainage. Any funds so disbursed or fees or charges so incurred shall be
included in any amount necessary for the Borrower to pay to redeem the premises
after any foreclosure sale over and above and notwithstanding the bid price at
any foreclosure sale.
(e) To discontinue making advances hereunder to the Borrower and to
terminate Lender's obligations under this Agreement.
5. RIGHTS NON-EXCLUSIVE - No right or remedy by this Agreement or by any Loan
Document or instrument delivered by the Borrower pursuant hereto, conferred upon
or reserved to the Lender shall be or is intended to be exclusive of any other
right or remedy and each and every right and remedy shall be cumulative and in
addition to any other right or remedy or now or hereafter arising at law or in
equity or by statute. Except as Lender may hereafter otherwise agree in writing,
no waiver by Lender or any breach by or default of Borrower of any of its
obligations, agreements, or covenants under this Agreement shall be deemed to be
a waiver of any subsequent breach of the same or any other obligation, agreement
or covenant, nor shall any forbearance by Lender to seek a remedy for such
breach be deemed a waiver of its rights and remedies with respect to such a
breach, nor shall Lender be deemed to have waived any of its rights and remedies
unless it be in writing and executed with the same formality as this Agreement.
6. EXPENSES - The Loan and this Agreement and the performance by the Lender of
its obligations hereunder shall be without cost and expense to the Lender, all
of which costs and expenses the Borrower agrees to pay and hold Lender harmless
of and payment of which shall be secured by the Loan Documents. Specifically,
Borrower agrees to pay all title charges, surveyor's fees, appraisals, loan fees
and the like incurred in connection with this Agreement.
ARTICLE XII
GENERAL CONDITIONS AND MISCELLANEOUS
The following conditions shall be applicable throughout the term of this
Agreement:
1. RIGHTS OF THIRD PARTIES - All conditions of the obligations of Lender
hereunder, including the obligation to make disbursements are imposed solely and
exclusively for the benefit of Borrower, and no other person shall have standing
to require satisfaction of such conditions in accordance with their terms or be
entitled to assume that Lender will refuse to make advances in the absence of
strict compliance with any or all thereof, and no other person shall, under any
circumstances, be deemed to be a beneficiary of such conditions, any and all of
which may be freely waived in whole or in part by Lender at any time if in its
sole discretion it deems it desirable to do so. In particular, Lender makes no
representations and assumes no duties or obligations as to third parties
concerning the quality of the construction of the Improvements or the absence
therefrom of defects. In this connection, Borrower agrees to and shall indemnify
Lender from any liability, claims or losses resulting from the disbursement of
the Loan proceeds or from the condition of the Premises whether related to the
quality of construction or otherwise and whether arising during or after the
term of the Loan made by Lender to Borrower in connection therewith unless such
claim relates to the intentional misconduct, fraud or gross negligence of the
Lender. This provision shall survive the repayment of said Loan and shall
continue in full force and effect so long as the
18
possibility of any such liability, claims or losses exists.
2. EVIDENCE OF SATISFACTION OF CONDITIONS - Any condition of this Agreement
which requires the submission of evidence of the existence or non-existence of a
specified fact or facts, implies as a condition the existence or non-existence,
as the case may be, of such fact or facts, and Lender shall, at all times, be
free independently to establish to its satisfaction and in its absolute
discretion such existence or non-existence.
3. ASSIGNMENT - Borrower may not assign this Loan Agreement or any of its rights
or obligations hereunder without the prior written consent of Lender.
4. SUCCESSORS AND ASSIGNS INCLUDING IN PARTIES - Whenever in this Agreement one
of the parties hereto is named or referred to, the heirs, legal representatives,
successors and assigns of such parties shall be included and all covenants and
agreements contained in this Agreement by or on behalf of the Borrower or by or
on behalf of the Lender shall bind and inure to the benefit of their respective
heirs, legal representatives, successors and assigns, whether so expressed or
not.
5. HEADINGS - The headings of the sections, paragraphs and subdivisions of this
Agreement are for the convenience of reference only, and are not to be
considered a part hereof and shall not limit or otherwise affect any of the
terms hereof.
6. INVALID PROVISIONS TO AFFECT NO OTHERS - If fulfillment of any provision
hereof, or any transaction related thereto at the time performance of any such
provision shall be due, shall involve transcending the limit of validity
prescribed by law, then, ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity; and such clause or provision shall be
deemed invalid as though not herein contained, and the remainder of this
Agreement shall remain operative in full force and effect.
7. NUMBER AND GENDER - Whenever the singular or plural number, masculine or
feminine or neuter gender is used herein, it shall equally include the other.
8. AMENDMENTS - Neither this Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought.
9. NOTICES - Any notice which any party hereto may desire or may be required to
give to any of the parties shall be in writing and the mailing thereof by
certified mail, or equivalent, to the respective parties' addresses set forth
hereinabove or to such other place such party may by notice in writing designate
as its address shall constitute service of notice hereunder.
19
10. GOVERNING LAW - This Construction Loan Agreement is made and executed
pursuant to and is intended to be governed by the laws of the State where the
Premises are located.
IN WITNESS WHEREOF, Borrower and Lender have hereunto caused these presents
to be executed on the date first above written.
NAVARRE CORPORATION, a Minnesota
corporation
By
-------------------------------
Its
------------------------------
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _____ day of
___________________________, 2003, by ____________________________________, the
_____________________________ of Navarre Corporation, a Minnesota corporation,
on behalf of the corporation.
------------------------------
NOTARY PUBLIC
20
THE BUSINESS BANK
By
-------------------------------
Its
------------------------------
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _____ day of
___________________________, 2003, by ____________________________________, the
_____________________________ of The Business Bank, a
_________________________________, on behalf of the _____________________.
-----------------------------
NOTARY PUBLIC
21
JOINDER BY COMMONWEALTH LAND TITLE INSURANCE COMPANY
Commonwealth Land Title Insurance Company ("Title") hereby agrees with
the Borrower and Lender named in the foregoing Construction Loan Agreement (the
"Agreement"):
1. To act in the disbursement of funds and in the insuring of the
Mortgage defined in the Agreement, all pursuant to and under the terms and
conditions set forth in the Agreement.
2. To be bound and comply with all of the terms and conditions of the
Agreement applicable to it, notwithstanding the waiver by Lender of any
requirement, duty or covenant therein to be performed by any person or entity
other than the Lender.
3. To record, at the request of Lender, the Loan Documents requested by
Lender, at Borrower's expense.
COMMONWEALTH LAND TITLE
INSURANCE COMPANY
By
-------------------------------
Its
------------------------------
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me this ____ day of
___________, 2003, by ____________________________, the ____________________ of
Commonwealth Land Title Insurance Company, on behalf of the company.
------------------------------
22
