DEVELOPMENT LOAN AGREEMENT
THIS AGREEMENT is made effective as of July 16 , 1997, is entered into by
and between CONCEPTS DIRECT, INC., a Delaware Corporation, (the "Borrower"),
and BANK ONE, COLORADO, NA (the "Bank").
RECITALS
This Agreement is entered into upon the basis of the following facts and
circumstances:
A. The Borrower owns the real property located in the City of Longmont,
County of Weld, State of Colorado, and described in Exhibit A, which
Borrower proposes to develop into platted parcels for construction of
office, manufacturing and warehouse space. The real property described in
Exhibit A, and all appurtenances thereto, all developmental improvements and
infrastructure, and all other real and personal property used in connection
with development thereof or otherwise a part of the collateral for the Loan
are referred to it collectively as the Property .
B. Borrower proposes to develop the Property and construct certain
improvements and infrastructure in the nature of grading, utility lines,
roads, curbs and gutters and other developmental improvements
("Improvements") in accordance with development plans and specifications to
be prepared by Borrower (the "Plans"), which are subject to approval by the
Bank, in compliance with applicable zoning, subdivision and development laws
and regulations governing the development of property for sale as office,
manufacturing and warehouse space (the "Project").
C. Borrower has applied to the Bank for a loan to finance the development
of the Property and construction of the Improvements thereon in an amount
not to exceed One Million Three Hundred Thousand and no/100ths Dollars
($1,300,000.00) (the "Loan") for payment of the individual costs itemized on
the Approved Budget attached hereto as Exhibit 1, subject to change upon
reasonable approval by the Bank. The Loan is evidenced by the Loan
Documents.
D. The Bank is willing to make the Loan to Borrower for the purposes set
forth above, all upon the terms and conditions as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants
and conditions, representations and warranties contained herein, the parties
hereto agree as follows:
The following terms when used in this Agreement shall, except where the
context otherwise requires, have the following meanings (such definitions to
be equally applicable to the singular and the plural forms thereof):
1.1 "Advances" shall mean disbursements under the Loan pursuant to the
terms of this Agreement.
1.2 "Agreement" shall mean this Agreement as originally executed and as
amended, modified or supplemented from time to time.
1.3 "Business Day" shall mean every day except a Saturday, Sunday or
public holiday under the laws of the United States or the State of Colorado.
1.4 "Closing Date" shall mean the day agreed between by the Borrower and
Bank for closing of the Loan; provided, however, that all of the conditions
precedent specified in this Agreement to closing shall have been satisfied.
1.5 "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
1.6 "Development Funds" shall mean any and all Loan proceeds disbursed in
accordance with the Note and this Agreement.
1.7 "Default" shall mean any event which if continued uncured would, with
notice or lapse of time or both, constitute an Event of Default.
1.8 "Event of Default" shall mean any Event of Default described in
Section 9. 1.
1.9 " GAAP " shall mean generally accepted accounting principles
consistently applied and maintained throughout the period indicated.
Whenever any accounting term is used herein which is not otherwise defined,
it shall be interpreted in accordance with GAAP.
1.10 "Governmental Entity" shall mean any governmental or
quasi-governmental entity, agency, authority, board, commission, or
governing body authorized by federal, state or local laws or regulations as
having jurisdiction over the Property or the development thereof.
1.11 "Liabilities" shall have the meaning given to that term in accordance
with generally accepted accounting principles consistently applied.
1.12 "Loan Documents" shall mean any and all documents evidencing and
securing the Loan and shall include the Note, this Agreement, the Deed of
Trust, Assignment- of Right to Participation Payments, Financing Statements,
Environmental Indemnity Agreement, collateral assignments of the
Construction Contract, Architect's Contract, Subcontracts, Development
Items, the Assignments of Purchase Contracts, and any documents or
instruments executed or delivered to further evidence or secure the Loan.
1.13 "Loan Party" shall mean the Borrower, and each other Person that from
time to time is or becomes obligated to the Bank under any Loan Document.
1.14 "Material Adverse Occurrence" shall mean any change in the assets,
business, financial condition, operations, prospects, or results of
operations of any Loan Party or the Property or any other event or condition
that in the reasonable opinion of Bank (i) could materially affect the
likelihood of performance by any Loan Party of any of the Obligations, (ii)
could materially affect the ability of any Loan Party to perform any of the
Obligations, (iii) could affect the legality, validity, or binding nature of
any of the Obligations or any Lien or Encumbrance securing any of the
Obligations, (iv) could materially impair the economic value of the
Property, or (iv) could affect the priority of any Lien or Encumbrance
securing any of the Obligations.
1.15 "Maturity" shall mean the earlier of (i) the date upon which the Note
is due, or (ii) the date on which the Note is accelerated and declared due
as a result of an Event of Default.
1.16 "Maximum Allowed Development Loan Advances" means the least of (I)
$1,300,000.00; (ii) fifty-five (55 %) of the completed and stabilized value
of the Property as evidenced in the Appraisal and approved by the Bank;
(iii) 47.3% of the total costs of the Project as shown on the Approved
Budget.
1.17 "Note" shall mean the Promissory Note of even date herewith in the
principal amount of $1,300,000.00, made by the Borrower to the order of the
Bank.
1.18 "Obligations" shall mean the obligations in connection with the Loan
as evidenced by the Note, this Agreement, and the Loan Documents.
1.19 "Official Records" shall mean the records of the Clerk and Recorder
of the County in which the Property is located.
1.20 "Person" shall mean any natural person, corporation, firm,
association, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
1.21 "Prime Rate" shall mean the rate of interest announced by Bank One,
Colorado, NA from time to time, as its Prime Rate. The Bank may lend to its
customers at rates which are at, above or below the Prime Rate.
Other terms defined herein shall have the meaning ascribed to them herein.
SECTION 2 LOAN COMMITMENT AND ADVANCES
2.1 Subject to the conditions herein set forth, Bank agrees to make the
Loan available to or for the benefit of Borrower, and Borrower agrees to
draw upon the Loan, in the manner and upon the terms and conditions herein
expressed, amounts that shall not exceed the sum of $1,300,000.00.
2.2 The Loan shall be evidenced by a Promissory Note (the "Note") of
Borrower, executed and delivered simultaneously with the execution of this
Agreement, in the amount of $1,300,000.00, payable to Bank upon the terms
and conditions contained therein which may include, but need not be limited
to, the following:
a. Interest Rate. Interest shall accrue on Advances from the date of
disbursement at the rate of one and one-half percent (I. 5 %) per annum in
excess of the Prime Rate. The interest rate shall change from time to time
on the effective date of, and in conformity with, changes in the Prime Rate.
b. Interest Payments. All accrued interest shall be due and payable on the
first day of each and every month commencing with the first month after the
date of the Note.
C. Principal and Interest Payments. Commencing on December 1, 1997 (the
"Amortization Date") and on the first (lst) day of each month thereafter
until the Note is paid in full, Borrower shall pay to Bank payments
consisting of (i) interest accruing on the outstanding principal balance at
the Interest Rate, adjusted on a daily basis, as and when the Prime Rate
changes, and (ii) principal payments in the amount of $21,668.00 ((i) and
(ii) are collectively referred to as the "P&I Payment") which shall be
applied to the then outstanding balance under the Note; provided, however,
that if less than the Maximum Allowed Development Loan Advances has been
disbursed as of the Amortization Date, the P&I Payment shall be recalculated
to reflect the lower principal amount. In addition, Borrower shall pay to
the Bank in prepayment of the Loan (i) the Release Price (defined in Section
15 below) for all parcels released from the lien of the Deed of Trust, and
(ii) all reimbursements from the City of Longmont pursuant to the Memorandum
of Agreement for Public Improvements dated March 25, 1997. Such prepayments
shall not reduce or postpone the monthly P&I Payment due under the Note.
d. Note Maturity. The entire unpaid principal balance, all accrued and
unpaid interest, and all other amounts payable under the Note shall be due
and payable in full on July 10 , 2000.
2.3 Bank shall make Advances, subject to all of the terms and conditions
provided herein, in the following manner, only in the amounts and for the
cost items set forth in the Approved Budget attached hereto as Schedule "B":
a. Initially, Bank shall make an Advance in an amount not to exceed the
amounts set forth on the Approved Budget for the costs items identified
thereon as Bank Legal, Title and Close, Bank Loan Fee, Appraisal, and such
other amounts as Bank may deem appropriate.
b. The portion of the Loan allocated on the Approved Budget for Interest
Reserve shall be held by Bank as an interest reserve (the "Interest
Reserve"), and Bank shall make Advances thereof to pay interest when due
under the Loan. If funds are not available from the Interest Reserve to pay
interest due under the Loan or if Bank shall deter-nine that Borrower will
have cost overruns, then, upon ten (10) days' prior written notice to
Borrower, Borrower shall pay such interest from its own funds.
C. Bank shall make Advances of the remaining portion of the Loan, allocated
on the Approved Budget for direct and indirect costs and expenses for
construction of the Improvements, in accordance with one or more of the
options described below; upon the occurrence of any event described in
Option Two below, Bank may cease Advances under Option One and thereafter
make Advances under Option Two:
Option One
Upon receipt by Bank of a Disbursement Request described below, together
with all of the items described in Section 7 hereof that are required by
Bank in connection with that Advance, Bank shall make Advances on or before
the date ten (10) days after receipt by Bank of the Disbursement Request and
the satisfaction of all of the conditions to such Advance, no more
frequently than monthly, as construction progresses, in amounts equal to:
(i) expenditures for labor performed and material supplied under the
construction contract for construction of the Improvements in accordance
with the Plans during the period immediately preceding that Advance plus
(ii) indirect construction costs actually paid or incurred by Borrower that
have not been covered by previous Advances. Indirect construction costs
shall mean those costs related to the construction of the Improvements,
other than the cost of labor and materials, and include, but are not limited
to, title insurance premiums, permit fees, architect and engineering fees,
legal fees, loan fees, taxes and interest during construction, but do not
include any profit to Borrower or any affiliate of Borrower. Notwithstanding
the foregoing, at Bank's option, Bank may hold back ten percent (10%) of the
costs of construction (hereinafter called the "Retention Funds") related to
labor but not materials. Subject to the provisions of this Agreement, and
so long as there is no Event of Default hereunder, any remaining Retention
Funds shall be disbursed upon a date to be determined at Bank's discretion
but not later than forty-five (45) days after receipt by Bank of the items
specified above and receipt and approval by Bank of the items described in
Section 3.2 hereof.
Option Two
Upon the occurrence of any Event of Default, or at any time that Bank
determines from its own inspection that the Improvements are not being
constructed according to the Plans and Specifications or in conformity with
cost estimates approved by Bank or that requisite and acceptable standards
of workmanship are not being met, Bank shall have the right, but not the
obligation, to take over and complete construction of the Improvements by or
through any agent, contractor or subcontractor of its selection and may make
Advances and disburse any funds deposited with Bank by Borrower in payment
of the costs, expenses, fees, attorneys' fees and other charges, together
with reasonable allowances for supervision, incurred in connection with such
taking over and completion. In the event proceeds of the Loan and amounts
deposited by Borrower @e insufficient to pay all of the same, the unpaid
amount thereof shall be an indebtedness of Borrower to Bank, payable
immediately without demand or notice, shall bear interest at the highest
rate payable under the Note, and shall be secured by all of the Loan
Documents.
2.4 Loan Advance Rates. Bank shall not be obligated to make any Advance of
the Development Loan, if at any time or from time to time, the Bank, in its
sole and absolute judgment determines that the total of the outstanding
Advances of the Development Loan plus the unadvanced balance of the
Development Loan exceeds the Maximum Allowed Development Uan Advances.
Within ten (10) days following notice from the Bank that such an excess
exists, the Loan Parties shall provide additional Owner's Equity in an
amount necessary to bring the Development Loan into compliance with the
foregoing limit.
2.5 Deadline for Disbursement of all Loan Proceeds. Any other provision
contained in this Agreement to the contrary notwithstanding, if for any
reason the total amount of the Development Funds, together with the Owner's
Equity, has not been fully disbursed prior to the Amortization Date, except
for such amounts as are required or permitted under the Loan Agreement, then
Bank shall not be obligated to approve any further disbursement(s) thereof,
and any then undisbursed Development Funds and undisbursed Owner's Equity
may be applied by Bank in any manner or order, such as: first to any costs
and expenses incurred by Bank in connection with the Loan; then, to unpaid
accrued interest on the Note; and then, to any amounts owing under any of
the Loan Documents, including but not limited to principal owing under the
Note. Any such or other application shall not constitute a waiver or
operate to cure any breach or Default existing under any of the Loan
Documents, nor to invalidate any notice of Default or any act done pursuant
to such notice and shall not prejudice any rights or powers of the Bank
under the Deed of Trust or other Loan Documents.
2.6 Cross-Default and Cross-Collateral. The Borrower and the Bank have
entered into a loan transaction (the "Construction Loan") regarding the
construction of improvements on real property adjacent to the Property
pursuant to which the Borrower has executed and delivered to Bank a
Construction Loan Agreement of even date herewith, (the "Construction Loan
Agreement") and other documents and instruments in connection with the
Construction Loan as described in the Construction Loan Agreement (the
"Construction Loan Documents"). The Construction Loan Documents provide
that the Obligations under the Construction Loan are additionally secured by
the Loan Documents encumbering the Property and that any default under the
Construction Loan Documents shall be a default under the Loan Documents.
Further, repayment of the Loan is additionally secured by the Construction
Loan Documents and any default under the Loan Documents shall be deemed a
default under the Construction Loan Documents.
At such time as the Construction Loan is paid in full, the Borrower and Bank
will either execute a modification of the Loan to extinguish the
cross-default and cross-collateral provisions with respect to the
Construction Loan or the Bank will xxxx the Construction Note "paid in full
and cancelled, " but will retain the original thereof in order to effect a
release of the Deed of Trust when the Note is paid in full.
SECTION 3 LOAN FEES
3.1 In connection with the Loan, Bank has earned and Borrower has paid or
shall pay to Bank at the time of recording of the Deed of Trust, a
non-refundable Loan fee in the amount of $13,000.00, representing one
percent (1 %) of the principal amount of the Note.
SECTION 4 SALE CONTRACTS
4.1 Borrower will enter into agreements for the sale of developed building
sites ("Sites") within the Project to one or more qualified purchasers
("Contracts"). Borrower has unconditionally assigned to the Bank as
additional security for the Loan its rights as seller under each Contract
(each, an "Assignment of Purchase Contract"), including, without limitation,
Borrower's rights to the cash down payment deposits, if any, deposited by
purchaser into escrow accounts. Borrower shall, subsequent to the Closing
Date, execute any additional documentation as may be required by the Bank in
order to more fully unconditionally assign to the Bank its rights as seller
under each Contract (including the cash down payment escrow deposits).
4.2 Notwithstanding any provision in the Loan Documents to the contrary, in
the event of a default by Purchaser under a Contract, at a time when
Borrower is in default, which default remains uncured after any applicable
cure period under the terms of any of the Loan Documents, or when facts or
circumstances exist which, with the giving of notice or the passage of time,
or both, would constitute an Event of Default under the Loan Documents, any
and all remaining amounts of Purchaser's xxxxxxx money deposit shall, upon
forfeiture by Purchaser, become the property of the Bank, and shall be
delivered by Borrower to the Bank upon demand, and shall be applied by the
Bank as a prepayment of principal in accordance with the terms of the Note;
provided, however, that no such prepayment shall apply toward Borrower's
mandatory Site Release Price payment obligations set forth in Section
15.2(c) below, or otherwise reduce or postpone any other payments under the
Loan Documents as the same may become due from time to time.
SECTION 5 SECURITY
5.1 Borrower shall cause the Loan and Borrower's obligations under this
Agreement are secured by the following:
a. A Deed of Trust, Security Agreement, Financing Statement and
Assignment of Rents and Revenues (severally and collectively, the "Deed of
Trust") constituting:
(1) A valid lien on the Property and Improvements, subject only to the lien
of the Construction Loan and such matters as specifically approved by Bank;
(2) A valid and effectual security agreement granting Bank a security
interest in all of the property described below in, to, or under which
Borrower now has or hereafter acquires any right, title or interest, whether
present, future, or contingent: all equipment, inventory, accounts, general
intangibles, instruments, documents, and chattel paper, as those terms are
defined in the Uniform Commercial Code, and all other personal property of
any kind (including without limitation money and rights to the payment of
money), whether now existing or hereafter created, that are now or at any
time hereafter (i) in the possession or control of Bank in any capacity
(except for deposit account funds maintained by Borrower in a fiduciary
capacity, held for the benefit of third parties for purposes unrelated to
this Agreement, in escrow or other fiduciary accounts designated as such);
(ii) erected upon, attached to, or appurtenant to, the Property; (iii)
located or used on the Property or identified for use on the Property
(whether stored on the Property or elsewhere); or (iv) used in connection
with, arising from, related to, or associated with the Property or any of
the personal property described herein, the construction of any improvements
on the Property, the ownership, development, maintenance, leasing,
management, or operation of the Property, the use or enjoyment of the
Property, or the operation of any business conducted on the Property;
together with all products and proceeds of all of the foregoing, in any
form. The security interest of Bank as set forth in this paragraph shall be
subject only to the security interest created by the Construction Loan
Documents;
(3) A valid and effectual assignment of rents and leases covering the
Property and Improvements;
b. Valid and effectual assignments of Borrower's interest in the Plans, all
construction and architects' contracts, all operating, management and
supervision agreements, and all other documents relating to the ownership,
development, construction, maintenance, leasing, management and operation of
the Property and Improvements, if any;
together with any UCC financing statements for filing and/or recording and
any other items required by Bank to fully perfect the liens and security
interests of Bank.
5.2 All of the documents required by Bank to grant and perfect the liens
and security interests required herein shall be in form satisfactory to Bank
and may be referred to herein as the "Loan Documents."
The obligation of Bank to make the Loan, and each and every Advance, is
subject to the following express conditions precedent, all of which, unless
otherwise provided below, or otherwise waived by Bank, shall have been
satisfied prior to the recording of the Deed of Trust:
6.1 The Bank shall have received and approved fully executed copies of the
Loan Documents which shall have been duly authorized, executed (and, where
appropriate, acknowledged), and delivered by the Borrower and any and all
other documents the Bank may deem reasonably necessary with respect to the
Loan;
6.2 Bank shall have received the Loan fee required in paragraph 3.1
hereof.
6.3 Borrower, at its expense, shall have obtained and delivered to Bank
(except that the appraisal required below shall be ordered by Bank at
Borrower's expense) the following items, all of which shall be in form and
content satisfactory to Bank and shall be subject to approval by Bank, which
approval shall not be unreasonably withheld:
(a) Acquisition Documents. A copy of the conveyance deed by which Borrower
acquired the Property and a copy of the fully-executed closing settlement
sheets for the purchase of the Property;
(b) Current Financial Statements. Personally certified current financial
statements of Borrower, less than 180 days old; copy of the extension forms
for 1996 federal tax returns for Borrower including all schedules and
exhibits, and a summary of 1997 cash flow.
(c) Pre-closing Expenses. Evidence reasonably satisfactory to the Bank and
the Title Company that all pre-closing development costs on the Project have
been paid in a timely fashion or will be paid at closing, which evidence
shall include without limitation lien waivers, paid invoices, governmental
inspections and approvals, as applicable;
(d) Plans. Two (2) complete sets of final Plans which have also been
approved by all Governmental Entities having jurisdiction therefor;
(e) Subcontracts. If requested by Bank, copies of all Subcontracts from
all material suppliers, and subcontractors who will be providing materials
or labor for construction of the Improvements.
(f) Subcontract List. If requested by Bank a list of all Subcontractors,
with name of contact person, telephone number and address, required to be
updated when new Subcontracts are made, a general statement of the nature of
the work to be done or materials supplied and the dollar value of the work
to be done, certified by the Borrower;
(g) Soils Report. An engineer's report prepared and certified by a
qualified engineer acceptable to Bank, showing locations and results of all
borings, together with recommendations for the design of the foundations of
the Buildings and certifying in a manner reasonably satisfactory to Bank the
adequacy of the existing soils condition, indicating that the Plans for
construction of the Improvements are satisfactory in view of the condition
of the soil;
(h) Engineer's Certificate. A certificate from Park Engineering certifying
that the Improvements as shown on the Plans, are designed to be in
compliance with all applicable governmental requirements; and
(i) Development Items. Copies of all engineering reports, land planning
maps, or plats, soils tests, environmental reports, surveys prepared for the
orderly planning of the Improvements, marketing materials and brochures,
building pen-nits or licenses, utility taps or supply agreements,
governmental or private agreements, indemnities, waivers, rights to
reimbursements, abatements or benefits of whatsoever nature regarding the
Property, to the extent assignable, and other documents prepared and
existing for the development of the Project available at Closing, with
subsequent submissions to the Bank of reports and studies not required to be
available at Closing, if requested by Bank (collectively called "Development
Items");
0) Development Documents. Receipt of copies of any agreements, existing or
proposed, with Governmental Entities, in the nature of a subdivider's
agreement, public improvements agreement, or annexation agreement affecting
the development of the Project or requiring cash equivalent collateral, or
imposing building restrictions in lieu of collateral, as a condition to
development of the Project (collectively, the "Development Documents");
(k) Budget. Approved Budget attached hereto as Exhibit B, which shall be
based upon executed subcontracts or firm bids satisfactory to the Bank and
its Project Inspector;
(1) Appraisal. The Appraisal;
(m) Environmental Audits. The Phase I Environmental Audit prepared by an
environmental engineering company approved by the Bank and in substance
satisfactory to Bank regarding the Property;
(n) Environmental Reports. Copies of any environmental impact statements,
Material Safety Data Sheets filed or to be filed with OSHA, the State of
Colorado or any local emergency planning commission or the local fire
department ("Environmental Reports"), if any;
(o) Utilities. Receipt of evidence satisfactory to Bank of the
availability to the Property boundaries of all Utilities;
(p) Plats. Three copies of any proposed or existing recorded plat, showing
all easements, ditches, streets, lot lines and proposed location for all
Improvements on the Property and evidence satisfactory to the Bank that the
transfer of ownership of the Property as a consequence of foreclosure or
deed in lieu of foreclosure will not result in a violation of subdivision
laws.
(q) Zoning/PUDS/PDP. Evidence of zoning or a copy of the final approved
preliminary development plan ("PDP") or other development plan for the
Property permitting the construction of the Project, and containing all use
or building conditions or restrictions affecting the Project and approved by
the appropriate Governmental Entity;
(r ) Opinions. Legal opinions of counsel for the Borrower ("Legal
Opinion"), in form and substance reasonably satisfactory to the Bank,
opining that the Borrower is duly organized and in good standing under the
laws of the State of Delaware and the State of Colorado, and has the power
to enter into and perform its obligations under the Loan, that the Loan is
not usurious under any applicable law, that the loan transaction and the
execution and delivery of the Loan Documents have been duly authorized by
all necessary parties, and that the Loan Documents are legal, valid and
binding and enforceable in accordance with their terms, subject to customary
exceptions;
(s) Tax Certificate. A Tax Certificate (defined below);
(t) Special Districts. Identification of any special district affecting
the Property, together with a boundary map of the special district,
financial statements and outline of the debt structure, if requested by the
Bank;
(u) Deposits. Any deposit of money, which may be required pursuant to
this Agreement or the Loan Documents, including, without limitation, the
Owner's Equity (defined below) and/or satisfactory evidence of the
contribution or availability of Owner's Equity to the Project.
(v) Corporation, Limited Liability Company, or Partnership) Documents. If
any Loan Party is a corporation, a limited liability company, or a
partnership, certified copies of (i) resolutions of its board of directors
or, if all managers or all general partners do not sign the Loan Documents,
resolutions of the managers of the limited liability company or partners of
the partnership, as the case may be, authorizing such Loan Party to execute,
deliver, and perform its Loan Documents and to grant to Bank the Liens and
Encumbrances on the Property in the Loan Documents and certifying the names
and signatures of the officer(s), member(s), manager(s), or partner(s), as
the case may be, of such Loan Party authorized to execute the Loan Documents
and, in the case of Borrower, to request Advances on behalf of Borrower,
(ii) the certificate of incorporation and bylaws, limited liability company
operating agreement, or partnership agreement, as the case may be, of such
Loan Party and all amendments thereto, (iii) if any Loan Party is a general
partnership or joint venture, the filed or recorded fictitious name
certificate for such Loan Party and all amendments thereto, (iv) if any Loan
Party is a limited partnership, the filed or recorded certificate of limited
partnership of such Loan Party and all amendments thereto, and (v) a
certificate of good standing as a corporation, limited liability company, or
limited partnership, as the case may be, from the jurisdiction of formation
or organization of such Loan Party, and if such jurisdiction is not the
State of Colorado, a certificate of qualification as a foreign corporation,
limited liability company, or limited partnership, as the case may be,
authorized to transact business in the State of Colorado.
6.4 Fees. All taxes, fees and other charges in connection with the
execution, delivery and recording of the Loan Documents shall have been
paid, and all delinquent taxes, assessments or other governmental charges or
liens affecting the Property, if any, shall have been paid. Borrower shall
provide a treasurer's tax certificate ("Tax Certificate") disclosing that no
general and special taxes or assessments encumbering the Property are
delinquent and that the Property does not lie within any special or general
assessment district except as approved by Bank.
6.5 Title and Other Matters. Title to the Property, the legal description
of the Property, and all documents and other matters relating in any way to
the Loan or to the Property must be to the satisfaction of Bank. At
Borrower's expense, Borrower shall furnish Bank with a 1992 ALTA loan policy
(the "Title Policy"), in the face amount of the Loan, insuring the Deed of
Trust as a valid first lien on the Property, together with all endorsements
as Bank may reasonably require, including without limitation, deletion of
standard exceptions 1 through 3, containing no exceptions other than those
Bank approves, issued in substance and in form by a company or companies
acceptable to Bank. The Title Policy shall contain "pending disbursements"
provisions satisfactory to the Bank, and, as Bank may reasonably require,
reinsurance with companies and in amounts reasonably acceptable to the Bank,
as well as direct access agreements with such reinsurers The Bank hereby
reserves the right to require the mechanic lien endorsement 101 (mechanic
lien disbursement endorsement), the cost of which shall be borne by the
Borrower.
6.6 Zoning, Pen-nits, Approvals. Borrower shall provide to Bank
satisfactory evidence that Borrower has complied with all covenants,
conditions, restrictions and reservations affecting the Property, including
the Covenants, that the Property is duly and validly zoned for the intended
use, and that Borrower has obtained all zoning, subdivision, and
environmental approvals, pen-nits and maps required to be obtained in order
to construct the Improvements ("Zoning Confirmation") and that the Property
meets all applicable requirements of the subdivision zoning regulations and
any local ordinances adopted pursuant thereto, except as specifically
permitted in Section 7.1 hereof to be a condition precedent to Initial
Advance and shall not be a condition precedent to closing. Bank shall
further require proof that all permits, consents and approvals required
pursuant to Section 6 hereof have been obtained, and any condition to such
approvals must be reasonably acceptable to Bank.
6.7 Insurance. In addition to the insurance policies required in Section 4
of the Deed of Trust which shall be provided at Closing, Borrower shall
maintain and deposit with the Bank or cause the Contractor to maintain and
deposit with the Bank original certificates of insurance policies issued by
insurance companies with current Best's Key Ratings of not less than A/V and
written in form and content acceptable to Bank, with appropriate mortgagee
clauses in favor of Bank, providing @e following minimum insurance
coverages:
(a) Comprehensive general public liability insurance in amounts not less
than $1,000,000.00 (combined single limit for bodily injury and property
damage), and an umbrella excess liability coverage in an amount not less
than $5,000,000.00 shall be in effect with respect to Borrower, the
contractors, architect and any engineer, with the Bank named as an
additional insured. In addition, Borrower shall maintain in full force and
effect business auto liability insurance, including any non-owned and hired
automobiles Such policies must be written on an occurrence basis so as to
provide blanket contractual liability, broad form property damage coverage,
and coverage for products and completed operations;
(b) All-risk course of construction insurance with standard
non-contributing mortgage clause, a lender's Loss Payable Endorsement naming
the Bank and/or assigns as loss payee, providing for a deductible not in
excess of $5,000, attached together with a full replacement cost endorsement
(provided that in no event, however, may the amount of coverage to be
maintained by Borrower be less than the amount of coverage necessary to
prevent Borrower's co-insurance of loss) ("Builder's Risk Insurance");
(c) Engineer's professional liability insurance in an amount
satisfactory to the Bank, with the Bank named as an additional insured, if
required by the Bank;
(d) Worker's Compensation Insurance covering all persons engaged in the
construction of the Improvements;
Each of the foregoing policies shall contain a clause requiring thirty (30)
day notice to Bank of cancellation, termination or material modification.
Borrower shall provide proof of premiums paid and, throughout the term of
the Loan, shall provide evidence to Bank no later than thirty (30) days
prior to expiration of each annual policy of payment of renewal premiums and
continuation of insurance coverage.
6.8 Survey. Borrower shall have furnish to Bank, at Borrower's expense, a
current improvement survey plat ("Survey") of the Property acceptable to
Bank and the title insurance company issuing the Title Policy (the "Title
Insurer") indicating, without limitation, that all foundations or other
Improvements currently constructed, if any, are located within the lot
lines, without infringement on established easements or rights-of-way and
not in violation of any ordinance including zoning ordinances which impose
lot line setback requirements and parking requirements ' The survey shall
show the legal description of the Property as it will be insured by the
Title Insurer, the courses and distances of the Property lot lines, all
appurtenant and servient easements, setbacks, building lines and width of
abutting streets, distance to nearest intersecting streets affording ingress
and egress to and from the Property, and the location and dimensions of all
encroachments, improvements, above or below ground easements and utilities,
and designated parking spaces. The survey shall show the proposed location
of all Improvements to be built on the Property as identified by Borrower to
the surveyors, with appropriate notation to distinguish between constructed
Improvements or foundations and proposed Improvements. The surveyor shall
also certify whether or not any portion of the Improvements is located
within a Federal Emergency Management Agency identified flood-prone area of
a community and if located thereon, state the map number and whether or not
the Property appears in the "Flood Hazard Area," or other known flood plain
dimensions affecting the Property. The survey must be certified as accurate
by a licensed surveyor in the State of Colorado and contain a certificate
imprinted thereon in the form approved by the American Land Title
Association stating that the survey is made for the benefit of the Bank and
the Title Insurer. In the event Borrower shall have obtained a replat of
the Property within sixty y (60) days prior to Closing, the Bank may elect
in its reasonable discretion to accept the recorded replat with appropriate
certifications and additional notations from the surveyor in lieu of the
Survey, provided, however, that the recorded replat is sufficient to induce
the Title Company to delete standard exceptions from the Title Policy
regarding matters that would be shown by an ALTA survey.
6.9 Owner's E@l . Prior to closing, Borrower shall provide Bank with
evidence of owner's equity ("Owner's Equity") in the amount of
$1,516,193.00, in the form of cash deposits and/or approved acquisition or
construction cost payments, which shall mean those payments actually made by
Borrower for acquisition of the Property or to third-party contractors or
suppliers for costs described in the Approved Budget, which costs shall be
evidenced by payment receipts (or other proof of payment satisfactory to the
Bank, and executed mechanic lien waivers (for lienable work or materials)
or, in the case of acquisition costs, certified postclosing settlement
sheets. The Loan is intended solely for the funding of the costs, expenses
and fees described in the Approved Budget as allocated from Development
Funds. All other costs, expenses, and fees for development and construction
of the Project, shall be contributed by the Borrower in the form of Owner's
Equity. The amount of Owner's Equity at Closing and subsequently may
increase as a function of the overall Approved Budget, the Appraisal, the
requirements of Sections 7 and 9 and the approval by the Bank of any
non-cash Owner's Equity. The Bank may, in its reasonable judgment, advance
Owner's Equity concurrently with Development Funds in a manner consistent
with the Approved Budget.
6.10 All representations and warranties by Borrower shall remain true and
correct in all material respects and all agreements that Borrower is to have
performed or complied with by the date hereof shall have been performed or
complied with in all material respects.
6.11 No Event of Default exists, and no event has occurred and no condition
exists that, after notice or lapse of time (other than applicable cure
periods), or both, would constitute an Event of Default.
6.12 Notwithstanding any provision hereof to the contrary, Bank shall not
be required to make any Advance until Borrower shall have provided to Bank
all plans and specifications for the construction of the Improvements,
together with any and all other documentation required by Bank, and said
documentation has been reasonably approved by Bank in accordance with its
customary pre-construction review procedure.
SECTION 7
GENERAL PROVISIONS FOR ALL ADVANCES
7.1 Prior to the Initial Advance of Development Funds, Borrower shall
provide the Bank with the following items, all in form reasonably
satisfactory to the Bank:
a. Final approved and recorded Plat of Concepts Direct Phase I;
b. Access permits issued by the Colorado Department of Transportation
consistent with the final recorded Plat;
C. Acquisition of all interests in, or resolution reasonably
satisfactory to the Bank of location of, oil and gas rights to which the
Property is subject;
d. Work in Public Right-of-Way Permit issued by the City of Longmont;
e. Use of Public Places Agreement between the City of Longmont and St.
Vrain Sanitation District;
f. Evidence of exclusion of the Property from Mountain View Fire
Protection District; and
g. Letter from the City acknowledging compliance with or items to be
completed under any Subdivision Agreements or Annexation Agreements or any
other development agreement to which the Property is subject.
7.2 When Borrower believes it is entitled to an Advance, Borrower shall
furnish Bank with the following, all in form reasonably satisfactory to
Bank:
a. At Bank's request, a list of names and material dealers, laborers and
subcontractors with whom written agreements have been made by Borrower with
respect to the construction of the Improvements in question.
b. A Disbursement Request, together with AIA Forms G702 and G703 (or such
other forms as may from time to time be approved or required by Bank),
setting forth such details concerning the construction of the Improvements
as Bank may reasonably require, including the amounts expended to the date
of the Disbursement Request for the Improvements (herein the "Disbursement
Requests"), the amounts then due and unpaid for construction of the
Improvements and an itemized estimate of the amount necessary to complete
the Improvements. Any materials covered by any Disbursement Request must be
suitably stored at the construction site, inventoried, and safeguarded and
insured against loss, damage, and theft.
C. The certification by Borrower, the supervising architect, if any, the
general contractor, if any, and at Bank's option an independent architect or
engineer of Bank's selection, if reasonably required under the
circumstances, that: (i) all work performed is in substantial accordance
with the Plans; (ii) all governmental licenses and pen-nits required for the
Improvements as then completed have been obtained and will be exhibited to
Bank upon request; (iii) the Improvements as then completed do not violate,
and, if further completed in accordance with the Plans, will not violate,
any law, ordinance, rule or regulation; and (iv) the remaining undisbursed
proceeds of the Loan plus the then existing balance of any Borrower's funds
account held by Bank pursuant to Section 9.16 hereof are sufficient to pay
for the movements.
d. The certification by Borrower that no Event of Default exists under the
Loan, and no event has occurred and no condition exists that, after notice
or lapse o Event of Default.
e. Receipted invoices or bills Of sale shall be available for Bank's review
together with unconditional releases and waivers of liens from each material
dealer supplier, laborer and subcontractor who has done work or furnished
materials in connection w the construction of the Improvements in question
for all work through the date of the previous
f. Evidence that any inspection required by any state, city or other
governmental authority has been completed with results satisfactory to that
authority.
g. Such other invoices, bills and statements as may be reasonably required
by Bank substantiate the Disbursement Request.
h. Throughout the course of construction of the Improvements, Bank shall
have the right to employ, at Borrower's sole cost and expense, an inspector
or inspectors who shall review as agent for Bank all construction activities
undertaken in regard to the Improvements.
i. Such other information and documents as Bank may reasonably require.
J. The Owner's Equity required under Section 6.9 hereof.
7.3 Upon completion of the Improvements, Borrower shall furnish Bank
with the following, all in form and content satisfactory to Bank, as a
condition precedent to disbursement of any remaining Retention Funds:
a. Such additional endorsements to the Title Policy (hereinafter defined),
including downdate endorsements, or if the Bank has received Form 101
covering a current ALTA Endorsement No. 10 1. 2 (Mechanic's Lien
Disbursement Endorsement) and additional policies of title insurance with
endorsements thereto as Bank may reasonably require with a liability limit
not less than the Title Policy amount, issued by the title company issue the
Title Policy with coverage and in form reasonably satisfactory to Bank,
insuring Bank's interest under the Deed of Trust (hereinafter defined) as a
valid lien on the Property, except only such items as shall have been
previously approved in writing by -Bank under the provisions of Section 6.5
below, and such additional items as may be approved by Bank in writing;
b. If requested by Bank, the execution of AIA Form G704 or other
document satisfactory to Bank by Borrower's engineer, contractor (if any)
and Borrower;
C. If requested by Bank, a notice of completion on Bank's approved form
executed by Borrower and duly recorded in the county recorder's office where
the Property is located;
d. If requested by Bank, an "as-built" ALTA survey of the Property,or other
satisfactory evidence,showing the location of the completed Improvements,
the location of all points of access to the Property and the Improvements
and the location of all easements affecting the Property and certifying that
there are no encroachments of the Improvements onto any easements affecting
the Property or onto any adjoining property and that all applicable setback
requirements and other restrictions have been complied with;
e. If requested by Bank, "as-built" plans and specifications of the
Improvements, showing the final specifications of all completed
Improvements;
f. If requested by Bank, the execution of AIA Form G706 (Contractor's
Affidavit of Payment of Debts), AIA Form G706A (Contractor's Affidavit of
Release of Liens), and AIA Form G708 (Consent of Surety of Final Payment);
g- Unconditional lien waivers on Bank's approved form from any party that
has recorded a preliminary notice of lien against the Property and
Improvements or such lien shall be bonded over in a manner reasonably
satisfactory to Bank; and
h. Final offsite acceptance letter or other evidence satisfactory to Bank
from the applicable governmental authority as may be reasonably necessary to
evidence completion of the Improvements.
7.4 Borrower shall pay for all reasonable and customary charges for
inspections, whether made by an independent architect, engineer, or other
inspector, or by Bank. To the extent not otherwise provided for in the
Approved Budget, Borrower shall pay such costs from funds other than the
proceeds of the Loan.
7.5 In the event that Borrower fails to make such payments when due, Bank
may in its sole but reasonable discretion require one or more disbursements
of part or all of the Development Funds or Owner's Equity to be paid
directly to any person(s) to whom any amount disbursed is payable,
including, but not limited to, contractors, subcontractors, laborers,
materialmen and/or Bank, or Bank may authorize any such disbursement jointly
to Borrower and such other person(s). Borrower hereby authorizes Bank to so
require the disbursement of the Development Funds and/or the Owner's Equity
by any manner or method to Borrower and/or to any other person(s) to whom
any amount disbursed is payable, and Borrower agrees that any and every
disbursement in any manner to any person(s) hereby authorized shall
constitute disbursement to Borrower.
7.6 Upon notice thereof to Borrower, Bank may withhold from any Advance or,
on account of subsequently discovered evidence, withhold from a later
Advance, or require Borrower to repay to Bank any earlier Advance, as Bank
in its sole but reasonable discretion considers necessary to protect Bank
from loss on account of (i) defective work on the Improvements that has not
been remedied, (ii) any obligation required by this Agreement to have been
performed that has not been performed, (iii) liens filed against the
Property or Improvements or reasonable evidence that such liens will be
filed (other than in connection with work the cost of which is being
properly contested in accordance with Section 9.1 hereof), (iv) failure of
Borrower to make payments to contractors or subcontractors for material or
labor (other than in connection with work the cost of which is being
properly contested in accordance with Section 9.1 hereof), or (v) a
reasonable doubt by Bank that construction of the Improvements can be
completed with the undisbursed proceeds of the Loan, plus any amounts
deposited by Borrower with Bank. Subject to the other provisions of this
Agreement, any amount so withheld shall be disbursed after the basis for
such withholding has been cured or removed or, with respect to the condition
set forth in (v) above, if Borrower demonstrates, to the reasonable
satisfaction of Bank, that all such amounts are, in fact, sufficient to
complete construction of the Improvements.
7.7 Under any option for Advances, Bank, in its reasonable discretion, may
withhold any payment or portion thereof until Bank has received releases of
lien, waivers of lien or paid bills in form reasonably satisfactory to it.
Bank shall have no obligation to require and/or obtain lien waivers or
receipts, and, although Bank requires presentation to it of lien waivers
and/or receipts, Bank shall have no responsibility for the validity thereof
nor for the correctness of the amounts indicated thereon. No Advance by
Bank shall constitute approval of any certification or relieve any person
making such certification of responsibility therefor.
7.8 Bank, from time to time, may, but shall not be obligated to, make
Advances in payment of insurance premiums, taxes, assessments, liens or
encumbrances existing against the Property and Improvements, interest
accrued and payable upon the Loan, and any charges and expenses that are the
obligation of Borrower under this Agreement or any Loan Document and any
charges or matters necessary to preserve the Property and the Improvements
or to cure any Event of Default.
7.9 Although Bank shall have no obligation to make any Advance unless and
until all of the conditions and prior performances set forth herein have
been kept, fulfilled or performed, and until all inspections,
certifications, releases, waivers, or paid bills or other requirements set
forth in Sections 6 or 7, as the case may be, have been made, delivered and
complied with, Bank, at its sole discretion, may make Advances prior to that
time without waiving or releasing any of the requirements or conditions of
this Agreement; but Borrower shall continue to be strictly obligated and
subject thereto, and all such conditions, prior performances and other
requirements shall nevertheless be strictly and punctually complied with,
fulfilled and performed; and, notwithstanding any such disbursement, Bank,
at its sole discretion, may discontinue any further Advances at any time
until all of the conditions, prior performances and other requirements of
this Agreement have been strictly fulfilled, performed and complied with.
7.10 In the event of any dispute that Borrower is unable to resolve upon
ten (10) days' notice from Bank, which, in the good faith opinion of
Bank, may endanger the timely completion of the Improvements or the
fulfillment of any condition precedent or covenant herein, Bank may agree to
make Advances for the account of Borrower without prejudice to Borrower's
rights, if any, to recover such funds from the party to whom paid. Such
agreement or agreements may take any form that Bank in its reasonable
discretion deems proper, including, without limitation, agreements to
indemnify a title insurer against possible assertion of lien claims and
agreements to pay disputed amounts to contractors in the event Borrower is
unable or unwilling to pay the same. All sums paid or agreed to be paid
pursuant to such agreement shall be for the account of Borrower and shall be
charged as an Advance.
7.11 Borrower shall have no right to any Advance other than to have the
same disbursed by Bank in accordance with one or more of the disbursement
provisions contained in this Agreement. Any assignment or transfer,
voluntary or involuntary, of this Agreement or any right hereunder shall not
be binding upon or in any way affect Bank without its written consent; Bank
may make Advances under one or more of the disbursement provisions herein,
notwithstanding any such assignment or transfer.
7.12 As of the date immediately prior to any Advance, the total amount of
the unadvanced Development Funds (not including Retainage for prior work),
together with the required Owner's Equity, shall be sufficient, in
Bank's reasonable opinion, taking into account the Approved Budget, to
complete the Improvements and to pay all costs of the Loan, including
interest, through the balance of the construction phase of the Loan to the
Amortization Date. To the extent the total amount of the unadvanced
Development Funds, together with required Owner's Equity, shall be
insufficient, in the Bank's reasonable opinion, taking into account the
Approved Budget, to complete the Improvements or to satisfy known interest
requirements, Borrower shall, within ten (10) days following written notice
from the Bank, deposit with the Bank an amount equal to such deficiency as
additional Owner's Equity, and such Owner's Equity shall be retained and
disbursed by the Bank as required with any future Advances under this
Agreement until the Improvements are completed and all hard costs and soft
costs incurred in connection with the construction of the Improvements,
including costs incurred in connection with the Loan, are paid and provided
that no Event of Default then exists.
7.13 Borrower shall immediately repay any Advance received by Borrower in
excess of the amount Borrower is entitled to under the provisions of this
Agreement.
7.14 Borrower and Bank shall agree on a day each month on or before which
Borrower shall provide Bank with Disbursement Requests, and Bank shall be
obligated to make Advances no more frequently than once per month.
SECTION 8 REPRESENTATIONS AND WARRANTEES
In order to induce Bank to make the Loan, Borrower represents, warrants and
covenants as follows, which representations, warranties and covenants shall
be true and correct as of the execution hereof and shall survive the
execution and delivery of the Loan Documents:
8.1 The Borrower is a corporation, duly formed and validly in existence
under the laws of the State of Delaware and in good standing under the laws
of the State of Colorado and is authorized to own real property in the State
of Colorado. Borrower is duly qualified to do business and is in good
standing in each jurisdiction where the nature of its business makes such
qualification necessary and where the failure to so qualify permanently
precludes the Borrower from enforcing its contracts. Borrower has the right
and power to occupy and develop the Property, and has full power and
authority to enter into this Agreement, to borrow money as contemplated
herein and to execute and carry out the provisions of the Loan Documents.
The execution, delivery and performance of the Loan Documents have been duly
authorized by all necessary partnership action of the Borrower, and no other
action of the Borrower is required for the execution, delivery and
performance of the Loan Documents. The Loan Documents which have been
executed and delivered pursuant to this Agreement constitute, or, if not yet
executed or delivered, will when so executed and delivered, constitute valid
and binding obligations of the Borrower, each enforceable in accordance with
its respective terms.
8.2 Any loan applications, financial statements, supporting schedules, and
financial reports heretofore delivered to the Bank in connection with the
Loan Documents by or on behalf of each Loan Party are true and correct in
all material respects, and, as to each Loan Party, have been prepared in
accordance with GAAP, consistently applied, and fairly represent the
respective financial conditions of the subjects thereof as of the dates
thereof and for the periods covered thereby, and no Material Adverse
Occurrence has occurred in the financial conditions presented therein since
the respective dates thereof.
8.3 There are no actions, suits or proceedings pending, or to the knowledge
of the Loan Party threatened against or affecting the Loan Party, or any of
the property or assets of the Loan Party, in any court at law or in equity,
or before or by any governmental or municipal authority which might
materially adversely affect the ability of the Loan Party to perform their
respective obligations hereunder or under any of the Loan Documents to which
the Loan Party is a party, or might adversely affect the priority of the
Bank's liens and security interests with respect to the Borrower's property
or assets.
8.4 Borrower has good and marketable title to the Property, free and clear
of all liens and encumbrances, excepting only the lien for general taxes for
the current year and the Permitted Exceptions (as defined in the Deed of
Trust), and subject only to the exceptions, if any, specifically consented
to by Bank and has good and marketable title to all Personalty, which secure
repayment of the Note.
8.5 Borrower has complied and will continue to comply with all applicable
statutes and regulations to be complied with in connection with the
construction of the Improvements, including, without limitation, all
statutes and regulations regarding environmental issues, the Americans with
Disabilities Act, and historical preservation acts and regulations. All
permits, consents, approvals or authorizations by, or registrations,
declarations, withholding of objections or filings with any governmental
body or private entity necessary in connection with the valid execution,
delivery and performance of this Agreement, the Loan Documents, and any and
all other documents executed in connection with any of the foregoing, or
presently necessary for the commencement of construction of the
Improvements, will be obtained prior to the commencement of the construction
of any part of the Improvements and will be valid, adequate and in full
force and effect. Construction of the Improvements and the intended use
thereof will in all respects conform to and comply with all covenants,
conditions, restrictions and reservations affecting the Property, with all
applicable zoning, including parking requirements, subdivision,
environ-mental protection, use and building codes, laws, regulations and
ordinances, including without limitation any covenants and restrictions
recorded in the Official Records (collectively, the "Covenants").
8.6 Borrower represents, warrants, and covenants that the Property, and the
use, occupancy and operation of the Project will strictly comply with all
covenants and agreements of Borrower regarding Hazardous Substances as
defined and contained in the Deed of Trust and the Environmental Indemnity
Agreement during the period of Borrower's ownership and, to the best of
Borrower's knowledge, presently complies.
8.7 All roads, streets, traffic turn lanes, and access ways necessary for
the full utilization of the Property for its intended purposes have either
been completed or the necessary rights of way have either been acquired by
the appropriate Governmental Entity or have been dedicated to public use and
accepted by the appropriate Governmental Entity, and all necessary steps
have been or will be taken by Borrower and the appropriate Govern-mental
Entity to assure the complete construction and installation thereof by the
time needed for construction and/or occupancy and operation of the
Improvements.
8.8 All utility services and facilities ("Utilities") necessary for the
construction of the Improvements and the operation thereof for its intended
purposes, including without limitation, water supply, storm and sewer
facilities, natural gas, electric, cable and telephone facilities, are
either available at the boundaries of the Property, or, if not, all
necessary steps have been taken by Borrower and the local authority or
public utility company which provides such services to assure the complete
installation and availability thereof when needed for construction and/or
occupancy and operation of the Improvements.
8.9 The Plans to be prepared shall include without limitation all waterways
and water features, landscaping, mechanical, electrical, structural and such
other drawings as may be required to complete the Improvements in accordance
with applicable building codes and any recorded plats or the Covenants, and
shall be reasonably acceptable in all respects to Bank and shall be true,
complete and an accurate reflection of the Improvements that Borrower will
construct. Prior to approval by Bank, the Plans shall be satisfactory to
and approved by Borrower, and shall have also been approved by all
governmental bodies or agencies having jurisdiction over the Property and
the Improvements and by any architectural control committee, if any, having
authority over the Property. Borrower represents that the Approved Budget
attached hereto as Exhibit B, is presently a good faith estimate of
necessary costs and expenses to be incurred in the construction of the
Improvements and that until such time as Bank approves a requested change in
the Approved Budget for the construction of the Improvements and the
necessary permits and approvals for the then applicable stage of
construction of the Improvements have been obtained, no Advances will be
made by the Bank. The Approved Budget may be adjusted to correspond to the
Plans; provided, however, the amount of the Loan shall not be adjusted
except as may be approved by the Bank and the Approved Budget shall at all
times be subject to the "in balance" provisions of Section 9.16.
8.10 As of the date hereof and for so long as the Loan Documents remain in
effect, Borrower is and will remain in full compliance with all of the terms
and conditions of this Agreement and the Loan Documents, and no Default has
or shall have occurred or shall have occurred and be continuing, which, with
the lapse of time or the giving of notice, or both, would constitute an
Event of Default under the foregoing.
8.11 The request by the Borrower for any Advance under this Agreement shall
constitute a certification by the Borrower that the representations,
warranties and covenants contained in this Section 8 are true and correct as
of the date of such request, except with respect to financial statements to
the extent that such statements have been prepared with respect to an
earlier date.
8.12 The proceeds of the Loan will be used by the Borrower solely for the
purposes permitted under this Agreement. The proceeds of the Loan shall not
be used to make loans to, or investments in, or purchases of any
corporation, partnership, joint venture, or third party.
8.13 No part of the proceeds of the Loan shall be used at any time by the
Borrower to purchase or carry margin stock (within the meaning of Regulation
U promulgated by the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any margin
stock. The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of
purchasing or carrying any such margin stock. No part of the proceeds of
the Loan hereunder will be used by the Borrower for any purpose which
violates, or which is inconsistent with, any regulations promulgated by the
Board of Governors of the Federal Reserve System.
8.14 The fair, salable value of the assets of the Borrower is in excess of
the total amount of its Liabilities as they become absolute and matured, and
the Borrower is able to meet its debts as they become due and payable in
accordance with the Borrower's ordinary business practices.
8.15 Borrower shall promptly comply with all provisions of any construction
contracts, any subcontracts and any other contract, agreement, Plans,
drawings, schedules or other items regarding construction of the
Improvements ("Construction Documents"), which require response or approval
by Borrower in a timely manner to insure completion of the Improvements
within the construction schedule provided in the Construction Documents.
8.16 All representations, warranties and covenants contained in this
Section 8 shall survive the delivery of the Note and the Loan Documents, and
the making of the Loan evidenced thereby and any investigation at any time
made by or on behalf of the Bank shall not diminish its rights to rely on
all of such representations and warranties; provided, however, that
Borrower's representations, warranties and covenants shall not survive the
sale of the Property by the Bank to a third party following foreclosure or
deed in lieu of foreclosure.
SECTION 9 AFFIRMATIVE COVENANTS
So long as Bank has any commitment to lend to Borrower hereunder and until
the Loan and all other indebtedness hereunder have been paid in full and all
of Borrower's obligations hereunder have been fully discharged:
9.1 Borrower shall promptly pay for all labor, materials, equipment and
fixtures used in connection with the construction of the Improvements and
all other costs relating to the Improvements except that Borrower may
contest in good faith the validity or amount thereof provided that Borrower
shall have furnished to Bank a cash deposit or other appropriate security in
an amount and form reasonably satisfactory to Bank to protect Bank against
the creation of any lien on, or any sale or forfeiture of, any property
encumbered by the Loan Documents. Upon the final determination of
Borrower's contest, Borrower shall promptly pay all sums, if any,
deter-mined to be due. Any deposit or security provided by Borrower shall
be promptly returned to Borrower upon the final determination of Borrower's
contest and the payment by Borrower of the sums, if any, deter-mined to be
due.
9.2 Borrower shall commence construction of the Improvements within a
reasonable time (not more than ninety (90) days) after the recording of the
Deed of Trust, proceed without interruption and promptly complete the
Improvements not later than the date six (6) months from the recording of
the Deed of Trust in a good and workmanlike manner according to the Plans,
free from all liens and encumbrances (other than the Permitted Exceptions),
and in accordance with all applicable ordinances and statutes, including
zoning laws, all covenants and restrictions running with the land, and all
regulations and building codes of any governmental or municipal agency
having jurisdiction over the Improvements.
9.3 Borrower warrants that no labor or material has been or will be
furnished for construction of the Improvements until the Deed of Trust has
been recorded and the title company has committed to issue the Title Policy;
or, if construction has commenced, Borrower shall assure that all necessary
indemnification or other agreements are made, in form satisfactory to the
title company, so that Bank receives the Title Policy without exception for
mechanics' or materialmen's liens, if required by Bank.
9.4 Borrower shall use its best efforts to enforce the contracts for the
construction of the Improvements to ensure that the contractors are required
to promptly and diligently perform all of their obligations thereunder and
in such a manner as to preserve Bank's security in the Property and
Improvements. No change, amendment or modification shall be made to such
contracts without the prior written consent of Bank, which consent shall not
be unreasonably withheld or delayed, except changes, amendments or
modifications that are to implement changes to the Plans permitted hereby.
9.5 Borrower, promptly upon request of Bank, shall furnish to Bank correct
lists of the contractor, all subcontractors, suppliers and materialmen
employed or retained in connection with the construction of the
Improvements, together with, if required by Bank, copies of each such
contract. Each such list shall show the name, address and telephone number
of each such person, a general statement of the nature of the work to be
done, the labor and materials to be supplied, the names of materialmen if
known, and the approximate dollar value of such labor or work with respect
to each. Bank shall have the right to telephone or otherwise communicate
with the contractor, each subcontractor and materialman to verify the facts
disclosed by said list or by any disbursement request, or for any other
purpose.
9.6 No materials, equipment, fixtures or any other part of the Improvements
shall be purchased or installed under any security agreement or other
arrangements wherein the seller reserves or purports to reserve the right to
remove or to repossess any such items or to consider them personal property
after their incorporation into the Improvements.
9.7 Borrower shall maintain in full force and effect all rights and
licenses necessary to carry on its business, and all permits, licenses,
consents and approvals necessary for the construction and maintenance of the
Improvements. Borrower shall maintain its present existence and shall
maintain executive personnel and management at a level of experience and
ability equivalent to present personnel and management.
9.8 Borrower shall maintain in full force and effect at all times all
insurance coverages required to be provided as a condition of any Advance.
9.9 Borrower shall make all payments of interest and principal on the Loan
and shall keep and comply with all terms, conditions and provisions of the
Loan Documents.
9.10 Bank, at its option and at Borrower's expense, may erect a sign upon
the Property indicating that Bank is the source of the financing of the
construction of the Improvements.
9.11 Borrower shall pay all of its current obligations before they become
delinquent, including all federal, state and local taxes or file such proper
extensions therefor, and all other payments required under federal, state or
local law. Notwithstanding the foregoing, Borrower shall have the right to
contest any such obligations in good faith, provided that Borrower shall
provide adequate security or other assurances reasonably satisfactory to
Bank, and shall, in any event, pay all such obligations prior to any
foreclosure sale of or execution upon any of the Property.
9.12 Borrower shall maintain, in a safe place, proper and accurate books
and records relating to its operations and its business affairs. Bank
shall, upon written, telephonic or other notice, have the right from time to
time as reasonably necessary during normal business hours to examine, and to
make abstracts from and photocopies of, any and all of Borrower's books and
records which in any way relate to the Property or the financial condition
of Borrower.
9.13 Borrower agrees with the Bank that, so long as the Loan shall be
outstanding, unless the Bank shall otherwise consent in writing, Borrower
covenants and agrees as follows:
Borrower will furnish to the Bank copies of the following financial
statements, reports and information:
(a)(i) As soon as available and in any event within ninety (90) calendar
days after the end of each calendar year a copy of Borrower's audited
financial reports, including balance sheet, related statements of earnings,
income statements and cash flow statement for such calendar year, prepared
in accordance with GAAP, audited by Borrower's independent certified public
accountant; the statements shall be accompanied by a certificate signed by
the officer of the Borrower responsible for financial matters stating that,
in his opinion, such audited financial statements fairly present the
financial position of the Borrower as of the date and for the period
covered, (ii) within thirty (30) days after the end of each calendar
quarter, copies of operating statements for the Property certified without
qualification or exception by the officer of Borrower responsible for
financial matters; (iii) within ninety (90) days after the end of each
fiscal year, a copy of Borrower's federal and state income tax returns or
extensions thereof, with all exhibits and schedules; (iv) within ninety (90)
days after the end of each fiscal year of Borrower, a statement of
Borrower's annual cash flow projections for the succeeding year; and (v)
within twenty (20) days after the end of each month, the certification by
the officer of Borrower responsible for financial matters that Borrower is
in compliance with the provisions of Section 10 below.
9.14 Borrower shall promptly inform Bank of any actions, suits or
proceedings involving Borrower that could materially and adversely affect
the repayment of the Loan, the performance by Borrower under this Agreement,
or the financial condition, business or operations of Borrower. ,
9.15 Borrower shall execute and deliver such additional documents and do
such other acts as Bank may reasonably require in connection with this Loan.
9.16 If at any time or from time to time Bank, in the exercise of its
reasonable business judgment, determines that the remaining undisbursed
proceeds of the Loan plus the then existing balance of any funds deposited
with Bank pursuant to this Section 9.16 and allocated to the Loan, are
insufficient to pay the total cost for the completion of the Improvements,
Borrower shall deposit within thirty (30) days after written demand therefor
by the Bank, an amount equal to such deficiency be deposited with Bank to
insure such completion and payment. Although held in a single account, all
sums deposited pursuant to this Section shall be allocated to the Loan as
appropriate. All funds deposited by Borrower pursuant to this Section 9.16
shall be: (i) held in an account selected by Bank in its sole and absolute
discretion, and (ii) disbursed by Bank in the manner provided herein for
Advances, prior to, in conjunction with or after any or all Advances. All
funds at any time in the Borrower's funds account are hereby assigned to
Bank as additional security for the Loan and all other indebtedness of
Borrower arising hereunder. Unless and until the Borrower deposits the
amount equal to any deficiency as set forth above, the Bank shall have no
obligation to make further Advances of the Development Funds.
9.17 Borrower shall comply with all public and private restrictions,
covenants, and conditions affecting the Property and shall give prompt
notice to the Bank of any notice of default or breach of any of the
foregoing received by Borrower.
9.18 Borrower shall promptly give notice in writing to Bank of (i) the
occurrence of any Event of Default (as defined below), (ii) any change in
the name of Borrower, and in the case of a reorganization, any change in
name, identity or corporate structure, or (iii) any uninsured or partially
insured loss through fire, theft, liability or property damage.
9.20 If the Improvements, or any part thereof, are damaged or destroyed by
fire or any other cause, and Borrower shall desire to restore the
Improvements or shall be required by the Bank to restore the Improvements,
Borrower shall, subject to the provisions of this Section, immediately
proceed with the restoration thereof in accordance with the Plans, and shall
diligently complete the work of restoration, provided that Bank makes
available to Borrower as restoration progresses any insurance proceeds
actually paid to Bank in respect to such damage or destruction. If (i) in
the Bank's reasonable judgment the insurance proceeds are sufficient to
complete the restoration prior to the Maturity Date or such later date as
Bank may elect and within the Approved Budget applicable to the Building to
be restored; and (ii) no Default exists under the Loan Documents
("Restoration Conditions"), the Bank shall advance the insurance proceeds to
Borrower as restoration progresses in the same manner as the Bank disburses
advances of the Loan proceeds hereunder. If any one or more of the
Restoration Conditions does not exist, the Bank shall have no obligation to
authorize further advances of Development Funds or Owner's Equity hereunder,
and may call the Loan immediately due and payable in accordance with the
following paragraph; provided, however, if, in the Bank's judgment the
insurance proceeds are insufficient to complete the restoration, Borrower
may satisfy such condition by depositing with the Bank as additional Owner's
Equity such money as in the Bank's reasonable judgment (based on bids or
estimates of reputable contractors) is sufficient to complete the
restoration in accordance with the Plans in a timely manner and fully pay
the costs thereof.
If in the Bank's reasonable judgment the Improvements cannot be restored in
accordance with the Plans and the Approved Budget in a timely manner as
described above or, if Borrower does not or cannot deposit as additional
Owner's Equity such money or additional money as in the Bank's judgment is
required to complete the restoration and fully pay the cost thereof, or if a
Default exists under the Loan Documents, such event shall be deemed an Event
of Default hereunder, and the Bank's obligations to authorize further
advances of Construction Funds or Owner's Equity hereunder or to make
insurance proceeds available for restoration shall immediately terminate.
The Bank may in such case apply any insurance proceeds and/or undisbursed
Development Funds and Owner's Equity in the manner set forth in Section 14
hereof, to reduce the outstanding indebtedness of Borrower under the Loan
and may exercise any of the other remedies which are described in this
Agreement or in the Loan Documents.
In the case of loss, the Bank is hereby authorized to participate in any
settlement or adjustment of claims under insurance policies, as its interest
may appear, and to collect and receipt for any proceeds. In the event the
Bank elects to apply the proceeds to restoration, in keeping with the
Restoration Conditions, such proceeds shall be made available, from time to
time, under substantially similar terms and conditions as provided in this
Agreement for advances from Development Funds and Owner's Equity.
9.21 If all or any part of the Property is expropriated, condemned, taken
by power of eminent domain, or transferred in anticipation of any such
circumstances by any competent authority, then the proceeds of any such
award or settlement made as compensation or damages for such expropriation,
condemnation, exercise of the power of eminent domain or the transfer in
anticipation of any such circumstance shall be paid to the Bank. The Bank,
at its election, may pay or apply such amount in any one or more of the
following ways and in such order as the Bank shall determine:
(a) to costs of collection thereof;
(b) payment of any expenses and fees of the Bank associated with this
Agreement and the other Obligations of the Borrower hereunder, the payment
of accrued and unpaid interest on the Loan, and the reduction of unpaid
principal of the Loan;
(c) to the payment of obligations incurred by the Bank or the Borrower in
the repair or replacement of damage to the Improvements;
(d) to make payment to the Borrower for the costs of restoration and repair
of the Improvements; or
If the Improvements, or any part thereof, are taken by condemnation or
subject to imminent threat of condemnation, Bank's obligation to authorize
further advances of Development Funds or Owner's Equity hereunder shall
immediately terminate unless, in the Bank's reasonable judgment, the
Improvements can be replaced and restored in a manner which will enable the
Improvements to be functionally and economically utilized and occupied as
originally intended, in which event the condemnation proceeds shall be made
available to Borrower for such purpose. Whether the Bank, in its reasonable
judgment, determines that the Improvements can be so restored and replaced
or not, the rights and obligations of Bank and Borrower thereafter, and the
handling and utilization of any condemnation proceeds actually paid to the
Bank and undisbursed Development Funds and Owner's Equity, shall be the same
as described in the immediately preceding Section 9.20 hereof.
9.23 Borrower shall indemnify and hold the Bank harmless from all liability
for any actual or alleged damage or injury of whatsoever nature arising out
of or in any way connected with the Property and/or the construction of the
Improvements or arising out of Borrower's breach of the provisions of this
Agreement except for the gross negligence or wilful misconduct of the Bank.
The Bank may commence, appear in or defend any action or proceeding
purporting to affect the rights, duties or liabilities of the parties
hereto, or the Property or the Improvements and Borrower shall pay all of
Bank's reasonable costs and expenses incurred thereby on demand. This
Section shall survive execution, delivery and performance of this Agreement,
the Deed of Trust and the Loan Documents.
9.24 Borrower will at any time and from time to time upon request of the
Bank take or cause to be taken any action, execute, acknowledge, deliver or
record any further documents, opinions, mortgages, security agreements,
financing statements or other instruments or obtain such additional
insurance as Bank in its discretion deems reasonably necessary or
appropriate to carry out the purposes of this Agreement and to preserve,
protect and perfect the security interests intended to be created and
preserved in the Property, the Project, the Personalty, and other properties
and assets securing the obligations of the Borrower under this Agreement and
the Loan Documents.
SECTION 10 FINANCIAL COVENANTS
Until the Loan and all indebtedness hereunder has been paid in full and all
Obligations hereunder have been fully discharged, each Borrower covenants
and agrees as follows:
10.1 Special Definitions. With respect to the subject matter of this
Article, the following terms shall have the following meanings:
" Capital Expenditure" shall mean, an expenditure for an asset that must be
depreciated or amortized under GAAP, for goodwill, or for any asset that
under GAAP must be treated as a capital asset, including payments under
Capital Leases.
"Capital Lease" shall mean any lease that has been or should be capitalized
under GAAP.
"Current Assets" shall have the meaning given that term in accordance with
GAAP.
"Current Liabilities" shall mean Liabilities payable within twelve (12)
months (including Mandatory Debt and Interest Payments).
"EBITDA" means, for any period of calculation, an amount equal to the sum of
(i) Net Income, (ii) federal, state and local income tax expense, (iii)
Interest Expense, (iv) losses on the sale or other disposition of assets,
(v) depreciation, (vi) amortization, and (vii) extraordinary losses, minus
(a) gains on the sale or other disposition of assets, and (b) extraordinary
gains, each calculated for such period.
"Funded Debt" shall mean the amount of all Indebtedness and Indirect
Obligations (without duplication) that by its terms or by the terms of any
instrument or agreement relating thereto matures more than on year from, or
is renewable or extendable at the option of guarantor to a date more than
one year from, the date of creation thereof (including without duplication a
line of credit or guaranty thereof whether or not maturing more than one
year from the date of creation), and includes any current maturities of such
Indebtedness and Indirect Obligations (without duplication).
"GAAP" shall mean those generally accepted accounting principles set forth
in Statements of the Financial Accounting Standards Board and in Opinions of
the Accounting Principles Board of the American Institute of Certified
Public Accountants or which have other substantial authoritative support in
the United States and are applicable in the circumstances, as applied on a
consistent basis.
"Indebtedness" shall mean, as to any Person at any particular date, any
contractual obligation enforceable against such Person (i) to repay borrowed
money; (ii) to pay the deferred purchase price of property or services;
(iii) to make payments or reimbursements with respect to letters of credit
whether or not there have been drawings thereunder; (v) with respect to
which there is any security interest in any property of such Person; (vi) to
make any payment or contribution to a Multi-Employer Plan; (vii) that is
evidenced by a note, bond, debenture or similar instrument; and (viii) under
any conditional sale agreement or title retention agreement.
"Indirect Obligation" shall mean, as to any Person, (a) any guaranty by such
Person of any obligation of another Person; (b) any security interest in any
property of such Person that secures any obligation of another person; (c)
any enforceable contractual requirement that such person (i) purchase an
obligation of another Person or any property that is security for such
obligation; (ii) advance or contribute funds to another Person for the
payment of an obligation of such other Person or to maintain the working
capital, net worth or solvency of such other Person as required in any
documents evidencing an obligation of such other Person; (iii) purchase
property, securities or services from another person for the purpose of
assuring the beneficiary of any obligation of such other Person that such
other Person has the ability to timely pay or discharge such obligation;
(iv) grant a security interest in any property of such Person to secure any
obligation of another Person; or (v) otherwise assure or hold harmless the
beneficiary of any obligation of another Person against loss in respect
thereof; and (d) any other contractual requirement enforceable against such
person that has the same substantive effect as any of the foregoing. The
term "Indirect Obligation" does not, however, include the endorsement by a
Person of Instruments for deposit or collection in the ordinary course of
business or the liability of a general partner of a partnership for
obligations of such partnership. The amount of any Indirect Obligation of a
Person shall be deemed to be the stated or determinable amount of the
obligation in respect to which such Indirect Obligation is made or, if not
stated or determinable, the maximum reasonable anticipated liability in
respect thereof as determined by such Person in good faith.
"Intangible Assets" means: (a) patents, copyrights, trademarks, tradename,
franchise, license agreements, goodwill, and other similar intangibles; (b)
unamortized debt discount and expenses; and (c) fixed assets to the extent
of any write-up in the book value thereof resulting from a revaluation
effective after the date of this Loan Agreement.
"Interest Expense" means, for any period of calculation, all interest,
whether paid in cash or accrued as a liability, without duplication, on
Indebtedness or Indirect Obligations of Borrower and any Subsidiary during
such period.
"Liabilities" shall have the meaning given that term in accordance with
GAAP.
"Mandatory Debt and Interest Payments" shall mean, at any date of
determination, the sum of all mandatory payments of principal and interest
(including payments due in connection with any Capital Lease) due during the
period of twelve (12) months from the date of determination.
"Net Income" shall have the meaning given that term under GAAP.
"Tangible Net Worth" means as of any date, total assets of Borrower as
determined in accordance with GAAP, minus the sum of (i) Liabilities and
(ii) Intangible Assets.
10.2 Current Asset Ratio. Prior to December 31, 1997, Borrower shall not
permit the ratio of Current Assets to Current Liabilities to fall below 1. 1
to 1 and, from and after January 1, 1998, Borrower shall not permit the
ratio of Current Assets to Current Liabilities to fall below 1.25 to 1, at
any time.
10.3 Ratio of Liabilities to Tangible Net Worth. Borrower shall not
permit the ratio of combined Liabilities to Tangible Net Worth to exceed
2.25 to 1, at any time.
10.4 Tangible Net Worth. Prior to December 31, 1997, Borrower shall not
permit its Tangible Net Worth to fall below $6,000,000.00 and, from and
after January 1, 1998, Borrower shall not permit its Tangible Net Worth to
fall below $7,000,000.00, at any time.
10.5 EBITDA Borrower shall not permit the ratio between EBITDA and
Funded Debt to fall below 1.30 to 1 as of the end of any fiscal year of
Borrower.
10.6 No Additional Financing. Borrower and its affiliates shall not incur
additional debt in the form of credit obligations from financial
institutions and/or leasing companies, without prior written Bank approval,
provided however, that this test does not include arbitrage line(s) of
credit, that are fully secured by cash or other existing debt acknowledged
by Bank as of the Closing Date.
10.7 Compliance Certificate. Within twenty (20) days after the end of each
month, Borrower shall execute and deliver to Bank a compliance certificate
("Compliance Certificate") in form acceptable to and approved by Bank,
certifying Borrower's continuing compliance with the financial covenants set
forth in this Section.
SECTION 11 NEGATIVE COVENANTS
So long as Bank has any commitment to lend to Borrower hereunder and until
the Loan and all other indebtedness hereunder have been paid in full and all
of Borrower's obligations hereunder have been fully discharged, Borrower
shall not, without receiving the prior written consent of Bank, in its sole
but reasonable discretion:
11.1 Dissolve or liquidate, or merge or consolidate with or into any other
entity, or turn over the management or operation of its property, assets or
business to any other person, firm or corporation.
11.2 Assign, transfer or convey any of its right, title and interest in
any property whether real or personal encumbered by the Loan Documents;
create or suffer to be created any mortgage, pledge, security interest,
encumbrance or other lien on any property encumbered by the Loan Documents
(other than liens arising from work the cost of which is being properly
contested in accordance with Section 9. 1 hereof); or, without obtaining the
prior written consent of the Bank, which consent shall not be unreasonably
withheld or delayed, create or suffer to be created any mortgage, pledge,
security interest, encumbrance or other lien on any other property or assets
which it now owns or hereafter acquires except in consideration of the
contemporaneous receipt by it of benefits equal or greater in value to the
lien created.
11.3 Make or permit any material change in the Plans. Any requested
changes shall be submitted on a form reasonably acceptable to Bank and
accompanied by a copy of the portion of the Plans applicable to the changes.
Prior to implementing any change order, Borrower shall deposit with Bank
sufficient cash to cover the cost of all change orders that increase the
cost of the Improvements. All such funds deposited with Bank shall be held
and disbursed in the manner provided in Section 9.16 hereof and are hereby
assigned to Bank as additional security for the Loan and all other
indebtedness of Borrower arising hereunder.
11.4 Change the times of commencement or termination of its fiscal year or
other accounting periods; or change its methods of accounting other than to
conform to generally accepted accounting principles applied on a consistent
basis.
11.6 Declare or set aside any sums of money or other assets or property for
the payment of any dividends or pay any sum of money or other asset or
property, on or with respect to any share of capital stock or ownership
interest or other equity interest in itself or any subsidiary, whether in
the form-n of equity or debt.
SECTION 12 INSPECTION BY BANK; STOPPAGE OF CONSTRUCTION
12.1 Bank shall have the right, but not the obligation, to enter at any
reasonable time with reasonable notice upon the Property and Improvements to
determine if the construction of the Improvements is in substantial
conformity with the Plans and all other requirements hereof and to examine
and make copies and extracts of any books, records, accounting data and
other documents, including without limitation all permits, licenses,
consents and approvals of governmental authorities having jurisdiction over
Borrower, the Improvements and the contractor and all subcontractors
supplying labor and/or materials in connection with the Improvements.
12.2 Bank shall have no duty to supervise or inspect any construction or to
inspect any books and records; any inspection by Bank shall be for the sole
purpose of protecting Bank's security and preserving Bank's rights
hereunder. Failure by Bank to inspect any work shall not constitute a
waiver of any of Bank's rights hereunder. Inspection not followed by notice
of an Event of Default shall not constitute a waiver of any Event of Default
then existing. Any inspection by Bank shall not be a representation by Bank
that there has been or will be compliance with the Plans or that the
construction is free from defective materials or workmanship, nor shall any
inspection by Bank constitute approval of any certification given to Bank or
relieve any person making such certification of responsibility therefor.
12.3 Upon discovery by Bank of any material deviation from the Plans or of
defective or unworkmanlike labor or materials being used in the construction
of the Improvements, Bank may immediately order stoppage of construction and
demand that any unsatisfactory work be replaced and that the condition be
corrected, whether or not any unsatisfactory work has already been
incorporated into the Improvements. After issuance of such an order in
writing, the condition shall be corrected within thirty (30) days from the
date of stoppage by Bank. Bank shall have the right to withhold all further
Advances until the condition is corrected and no other work shall be done on
the Improvements without the prior written consent of Bank unless, and
until, such condition has been fully corrected.
12.4 After notice thereof to Borrower and Borrower's failure to timely
proceed, within ten (10) days of notice thereof, Borrower irrevocably
appoints, designates, and authorizes Bank as its agent (said agency being
coupled with an interest) to file for record any notices of completion or
any other notice that Bank deems necessary or desirable to protect its
interest hereunder or under the Loan Documents. This power of attorney is
solely for the benefit and protection of Bank, and its successors and
assigns, and Bank shall have no obligation to exercise this power in any
event. This power of attorney is a power coupled with an interest and shall
be irrevocable so long as any part of the Loan or any indebtedness or
obligations of Borrower to Bank arising in connection with the Loan remain
unpaid or unperformed.
SECTION 13 WAIVER
13.1 Borrower waives presentment, demand, protest and notices of protest,
nonpayment and partial payment. Borrower consents to and waives notice of:
(i) the granting of indulgences or extensions of time of payment, (ii) the
taking or releasing of security, and (iii) the addition or release of
persons who may be or become primarily or secondarily liable for the Loan or
any other indebtedness arising in connection with the Loan, or any part
thereof, and all in such manner and at such time as Bank may deem reasonably
advisable.
13.2 No delay or omission by Bank in exercising any right, power or remedy
hereunder, and no indulgence given to Borrower, with respect to any term,
condition or provision set forth herein, shall impair any right, power or
remedy of Bank under this Agreement, or be construed as a waiver by Bank of,
or acquiescence in, any Event of Default.
Likewise, no such delay, omission or indulgence by Bank shall be construed
as a variation or waiver of any of the terms, conditions or provisions of
this Agreement. Any actual waiver by Bank of any Event of Default shall not
be a waiver of any other prior or subsequent Event of Default or of the same
Event of Default after notice to Borrower demanding strict performance.
SECTION 14 DEFAULT
14.1 The occurrence of any of the following events or conditions shall
constitute an "Event of Default" under this Agreement:
a. The Borrower shall default in the payment when due of any Obligations
owing to Bank under the terms of the Note (giving effect to any grace period
provided therein applicable to the Default).
b. A Default shall occur in the due performance and observance of any of
the covenants and conditions of this Agreement or the Loan Documents, other
than a monetary obligation or other Default described in this section, which
breach is not cured to Bank's satisfaction within the applicable cure period
for breach of such covenant or condition, and, if no specific cure period is
provided, within thirty (30) days of notice of such Default being sent by
the Bank to Borrower; provided, however that if such default is not curable
within such thirty (30) days, then, so long as Borrower delivers to Bank,
within ten (10) days after notice, its written undertaking to cure,
commences to cure such default within such thirty (30) day period and is
diligently pursuing such cure to completion, such default shall not
constitute an Event of Default unless such default remains uncured for such
sixty (60) days after such written notice to Borrower.
C. Any written representation, warranty or disclosure made by Borrower
proves to be materially false or misleading as of the date when made,
whether or not such representation or disclosure appears in this Agreement,
the Loan Documents, or items submitted by Borrower in connection therewith.
d. Any claim or lien shall be filed against the Property or any part
thereof; provided, however, that no Default shall exist hereunder as long as
Borrower has fully complied with any conditions provided herein to permit
Borrower's contest of such claim or lien.
e. Borrower fails to make any deposit of funds required hereunder, or under
the Loan Documents within the time required for payment, which failure shall
continue for five (5) days after written notice from Bank to Borrower.
f. Any material deviation shall occur in the work of construction from the
Plans without the approval of Bank, or the occurrence of defective
workmanship or materials not in accordance with the Plans or completed in
compliance with industry standards for similar projects, which deviations or
defects are not corrected, substantially corrected, or a plan for their
timely correction approved by the Bank within thirty (30) days after receipt
of written notice from Bank to Borrower.
g. The work of construction is delayed or suspended for a period of sixty
(60) calendar days or more beyond the construction schedule given to the
Bank for any reason except those which Bank reasonably determines to be
beyond the reasonable control of Borrower, or the work of construction is
not completed by the Completion Date or such later date as Bank may approve,
and Borrower has not submitted a reasonable plan for completion of
construction which Bank has approved.
h. There occurs any Material Adverse Occurrence.
i. Any of the Improvements encroach over the Property or setback lines or
upon an easement, or any structure upon an adjoining Property encroaches
upon the Property, to an extent reasonably deemed material by Bank, and an
appropriate title insurance endorsement or plans for the cure of which
encroachment are not provided to Bank's satisfaction within thirty (30) days
after written notice thereof from Bank to Borrower or Borrower shall fail to
diligently pursue such cure to completion within a reasonable time (not to
exceed thirty (30) days).
There occurs any event of default in the payment and performance of Borrower
under the Construction Loan or any of the Construction Loan Documents.
Borrower acknowledges and agrees that all material non-monetary defaults are
conclusively deemed to be and are defaults which impair the security of the
Loan Documents, and that Bank shall be entitled to exercise any appropriate
remedy, including without limitation, foreclosure of the Loan Documents upon
the occurrence of any such material non-monetary default after the
expiration of any cure period, if applicable.
14.2 Remedies. Upon the occurrence of any Event of Default and at any
time while such Event of Default is continuing, Bank may do one or more of
the following:
(a) Immediately terminate any further approval of advances of Development
Funds and/or Owner's Equity and use any portion of the Owner's Equity
held by the Bank to reimburse the Bank for any costs incurred under the Note
or this Agreement.
(b) Declare the Obligations under the Note immediately due and payable.
(c) Enter upon the Property and complete construction of the Improvements
in accordance with the Plans and Approved Budget, except as necessarily
increased by additional development and construction costs arising from
Borrower's default or additional costs approved by a court, with such
changes therein as Bank may from time to time and in its reasonable
judgment deem appropriate, all at the risk and expense of Borrower. The
Bank shall have the right at any time to discontinue any work commenced by
it in respect to the Improvements or to change any course of action
undertaken by it and not be bound by any limitations or requirements of
time whether set forth herein or otherwise. Bank shall have the right and
power to assume any construction contract made by or on behalf of Borrower
in any way relating to the Improvements and to take over and use all or any
part of the labor, materials, supplies and equipment contracted for, by or
on behalf of Borrower whether or not previously incorporated into the
Improvements, all in the discretion of Bank. In connection with any work
of construction undertaken by Bank pursuant to the provisions of this
Section, Bank may (i) engage builders, contractors, and others for the
purpose of furnishing labor, materials and equipment in connection with the
work of construction and architects and engineers as reasonably necessary
to complete construction of the Project, (ii) pay, settle or compromise all
bills or claims which may become liens against the Property or which have
been or may be incurred in any manner in connection with completing
construction of the Improvements or for the discharge of liens,
encumbrances or defects in title of the Property, and (iii) take such other
action, including the employment of watchmen to protect the Improvements,
or refrain from taking action under this Agreement as Bank may in its
discretion reasonably determine from time to time. Borrower shall be
liable to Bank for all sums paid or incurred for completing construction of
the Improvements whether the same shall be paid or incurred pursuant to the
provisions of this Section or otherwise, and all payments made or
liabilities incurred by Bank hereunder of any kind whatsoever shall be paid
by Borrower to Bank upon demand with interest at the rate set forth in the
Note, and all of the foregoing shall be deemed and shall constitute
advances under this Agreement and be secured by the Deed of Trust and Loan
Documents. For the purpose of carrying out the provisions and exercising
the rights, powers and privileges granted by this Section 9.2(c) hereof,
Borrower hereby unconditionally and irrevocably constitutes and appoints
Bank its true and lawful attorney-in-fact to enter into such contracts,
perform such acts and incur such liabilities as are referred to in said
Section in the name and on behalf of Borrower which are reasonably
necessary to complete development and construction of the Improvements.
This power of attorney is coupled with an interest. Nothing contained
herein shall relieve the Bank from its obligation to mitigate damages.
(d) Where substantial deviations from the Plans appear which have not been
approved as set forth herein, or defective or unworkmanlike labor or
materials are being used in the development of the Improvements, or upon
receipt of knowledge of encroachments to which there has been no consent,
Bank shall have the right to immediately order stoppage of the construction
and demand that such conditions be corrected. After issuance of such an
order in writing, no further work shall be done on that portion of the
Improvements where there is a substantial deviation from the Plans which has
not been approved as set forth herein or where there is defective or
unworkmanlike labor or materials, without the prior written consent of Bank
unless and until said condition has been fully corrected.
(e) Foreclose on or realize upon any security for the Loan without waiving
its rights to proceed against any other security or other entities or
individuals directly or indirectly responsible for repayment of the
Obligations or waive any and all security for the Obligations as Bank may in
its discretion so determine, and pursue any such other remedy or remedies as
Bank may so determine to be in its best interest as provided herein or in
the Loan Documents. All remedies of Bank provided for herein and in any
other Loan Document are cumulative and shall be in addition to all other
rights and remedies provided by law. The exercise of any right or remedy by
Bank hereunder shall not in any way constitute a cure or waiver of default
hereunder or under any other Loan Document or invalidate any act done
pursuant to any notice of default, or prejudice Bank in the exercise of any
of its rights hereunder or under any other Loan Documents unless, in the
exercise of its rights, Bank realizes all amounts owed to it under such Loan
Documents.
(f) Avail itself of any other relief to which Bank may be legally or
equitably entitled.
14.3 If at any time (a) an Event of Default under the Loan Documents has
occurred (giving effect of applicable cure and notice periods, if any,
contained in the Loan Documents ), (b) the Bank determines, in its sole but
reasonable judgment, that the collateral position of the Bank in relation to
the credit extended for the benefit of the Borrower has adversely changed as
a consequence of material, physical or economic impairment of the pledged
collateral, or (c) the Bank is required by law or regulation to obtain a new
Appraisal, the Bank may require a new Appraisal of the Property in form and
content acceptable to the Bank to be prepared at Borrower's expense.
14.4 Borrower shall pay all of the reasonable costs and expenses, including
without limitation costs of title searches and title policy commitments,
Uniform Commercial Code searches, court costs and reasonable in-house and
outside attorneys' fees, incurred by Bank in enforcing payment and
performance of the Loan and the other indebtedness and obligations of
Borrower hereunder or in exercising the rights and remedies of Bank
hereunder. All such costs and expenses shall be secured by all Loan
Documents. In the event of any court proceedings, court costs and
attorneys' fees shall be set by the court and not by jury and shall be
included in any judgment obtained by Bank.
SECTION 15 PARTIAL RELEASE PROVISIONS
Borrower may request a partial release from the Deed of Trust for a portion
of the Property shown on Exhibit C attached hereto and labeled the
"Construction Parcel" or other portions of the Property, upon the following
terms and conditions:
15.1 Release Conditions for Construction Parcel. Bank shall partially
release the Construction Parcel (defined below) upon the following terms and
conditions:
(a) Final Plat. Borrower shall deliver to the Bank for its approval, which
approval shall not be unreasonably withheld or delayed, three (3) copies of
a recorded plat ("Concepts Direct Filing I Plat") delineating the
dimensions of Xxx 0, Xxxxx 0, consisting of approximately 10.64 acres and
depicted on Exhibit C on which certain improvements described in the
Construction Loan are to be constructed ("Construction Parcel"), and
satisfactory ingress and egress to and from the Construction Parcel, which
Concepts Direct Filing 1 Plat must show all easements, ditches, streets, lot
lines, rights-of-way, any lot, block and street delineations or designations
affecting the Construction Parcel and satisfactory easements for utility
services, and encroachments, if any, affecting the Construction Parcel.
(b) Development Parcel Legal description@ion. A Survey certified to the
Bank and the Title Company in sufficient detail to identify the balance of
the Property after release of the Construction Parcel (the "Development
Parcel") and containing the legal description of the Development Parcel.
(c) No Consideration. Upon compliance with the terms of this Section 15.1
and Section 15.2, the Bank will release the Construction Parcel for no
additional consideration.
(d) Beneficial Use. Evidence satisfactory to the Bank of all easements
necessary for ingress and egress from the Development Parcel and the
Construction Parcel to a public street or road, and for installation and
maintenance of Utilities and for the beneficial use and enjoyment of the
Improvements for the purpose for which the Improvements were constructed.
15.2 Release Conditions for Other Parcels. Bank shall partially
release other parcels located within the Development Parcel, upon the
following terms and conditions:
(a) Final Plat. Borrower shall deliver to Bank for its approval, which
approval shall not be unreasonably withheld or delayed, the final recorded
plat of parcel to be released ("Release Parcel"), delineating the
dimensions of the Release Parcel and satisfactory ingress and egress to and
from the Release Parcel and the remainder of the Development Parcel, which
plat must show all easements, ditches, streets, lot lines, right-of-way, any
lot, block and street delineations or designations affecting the Release
Parcel and satisfactory easements for utility services and encroachments, if
any, affecting the remaining Development Parcel.
(b) Legal Description. A Survey certified to the Bank and the title
Company in sufficient detail to identify the balance of the Development
Parcel after release of the Release Parcel and a certification of the number
of square feet in the Release Parcel.
(c) Release Price. Borrower shall pay to Bank a release price for any
Release Parcel equal to the greater of (i) eighty-five percent (85 %) of the
net sales proceeds (gross sales proceeds less customary broker's commission,
title insurance premiums, and other seller costs customary in residential
transactions in the State of Colorado, but not including discount or
origination points paid by the seller in connection with purchaser's
financing), or (ii) $.50 per square foot of the Release Parcel (the "Site
Release Price").
15.3 General Release Conditions. With respect to the release of the
Construction Parcel or any Release Parcel, the Borrower shall comply with
the following terms and conditions:
(a) Segregated. The Construction Parcel and any Release Parcel shall be
segregated on the tax roll and assessed separately from the unreleased
portion of the Development Parcel or a reasonably and mutually satisfactory
agreement reached between Borrower and Bank as to the proration of the taxes
until such segregation occurs.
(b) No Default. No Event of Default shall exist at the time of request
for partial release or at the time of release.
(c) Other Documents. Such other standard documents or assurances as may
be required to accomplish the release in a manner satisfactory to Bank and
its counsel.
(d) Title Policy Endorsement. Upon the request of the Bank, Borrower shall
have submitted to Bank an endorsement to Bank's policy of title insurance,
ensuring that the priority of Bank's lien on the unreleased portion of the
Development Parcel is not impaired by reason of the release of the
Construction Parcel or any Release Parcel, and ensuring Bank's interest in
any retained easement and maintenance rights as a first and prior lien.
(e) Costs. Borrower shall directly pay for all costs and expenses
incurred in connection with compliance with the requirements set forth in
this Article 15, including, but not limited to, reasonable attorneys' fees,
title insurance premiums and survey expenses. In the event Bank incurs any
expenses arising out of Borrower's actions to comply with the provisions of
this Article 15, Borrower shall reimburse to Bank all such expenses as a
condition to Bank's obligations to partially release the Construction
Parcel or any Release Parcel.
15.4 Release Procedure. Borrower shall provide Bank with a fully prepared
request for partial release for the Construction Parcel or any Release
Parcel to be released, together with the items described in Section 15.1,
15.2 and 15.3 not less than ten (10) Business Days prior to the requested
release date.
SECTION 16 ACTION UPON AGREEMENT
16.1 This Agreement is made for the sole protection and benefit of the
parties hereto and no other person or organization shall have any right of
action hereon.
16.2 This Agreement embodies the entire Agreement of the parties with
regard to the subject matter hereof. There are no representations,
promises, warranties, understandings or agreements expressed or implied,
oral or otherwise, in relation thereto, except those expressly referred to
or set forth herein. Borrower acknowledges that the execution and delivery
of this Agreement is its free and voluntary act and deed, and that said
execution and delivery have not been induced by, nor done in reliance upon,
any representations, promises, warranties, understandings or agreements made
by Bank, its agents, officers, employees or representatives.
16.3 No promise, representation, warranty or agreement made subsequent to
the execution and delivery of this Agreement by either party hereto, and no
revocation, partial or otherwise, or change, amendment or addition to, or
alteration or modification of, this Agreement shall be valid unless the same
shall be in writing signed by all parties hereto.
16.4 Bank and Borrower each have separate and independent rights and
obligations under this Agreement. Nothing contained herein shall be
construed as creating, forming or constituting any partnership, joint
venture, merger or consolidation of Borrower and Bank for any purpose or in
any respect.
SECTION 17 GENERAL
17.1 Arbitration. The undersigned hereby agree that all controversies and
claims (including the existence of a Default or Event of Default) of any
nature arising directly or indirectly out of any and all loan transactions
between them and any related agreements, instruments or documents, shall at
the written request of any party be submitted to binding arbitration
pursuant to the applicable rules of the American Arbitration Association.
The arbitration shall proceed in Denver, Colorado, shall be governed by
Colorado law and shall be conducted in accordance with the Commercial
Arbitration Rule of AAA. Judgment upon any award rendered by the
arbitrator(s) may be entered in any court having jurisdiction.
(a) A single arbitrator shall have the power to render a maximum award of
one hundred thousand dollars. When any party files a claim in excess of
this amount, the arbitration decision shall be made by the majority vote of
three arbitrators. No arbitrator shall have the power to restrain any act
of any party.
(b) No provision of this Section shall limit the right of any party to
exercise self-help remedies, to foreclose against any real or personal
property collateral, or to obtain any provisional or ancillary remedies
(including but not limited to injunctive relief or the appointment of a
receiver) from a court of competent jurisdiction. At Bank's option, it may
enforce its rights under a mortgage by judicial foreclosure, and under a
deed of trust either by exercise of power of sale or by judicial
foreclosure. The institution and maintenance of any remedy permitted above
shall not constitute a waiver of the right to submit any controversy or
claims to arbitration. The statute of limitations, estoppel, waiver,
laches, and similar doctrines which would otherwise be applicable in an
action brought by a party shall be applicable in any arbitration proceeding.
17.2 No Waiver. No waiver of any Default or breach by Borrower hereunder
shall be implied from any failure by Bank to take action on account of such
default if such default persists or is repeated, and no express waiver shall
affect any Default other than the default specified in the waiver and shall
be operative only for the time and to the extent therein stated. Waivers of
any covenant, term or condition contained herein shall not be construed as a
waiver of any subsequent breach of the same covenant, term or condition. The
consent or approval by Bank to, or of, any act by Borrower requiring farther
consent or approval shall not be deemed to waive or render unnecessary the
consent or approval to, or of, any subsequent similar act.
17.3 Impounding of Advances. Unless Bank is provided with an
indemnification or other assurance satisfactory to Bank (in Bank's sole
discretion), Bank may impound such Advances as may be required to enable
Bank to comply with the provisions of Colorado Revised Statutes, Section
00-00-000, as amended.
17.4 Successors and Assigns. This Agreement is made and entered into for
the sole protection and benefit of Bank and Borrower, their successors and
assigns, and no other person or persons shall have any right of action
hereunder. The terms hereof shall inure to the benefit of the successors
and assigns of the parties hereto; provided, however, that the Borrower's
interest hereunder cannot be assigned or otherwise transferred without the
prior consent of Bank.
17.5 Notices. Any notice, demand or request required hereunder shall be
given in writing at the addresses set forth below by personal delivery, or
registered or certified, first class mail, return receipt requested. Notice
shall be deemed delivered (i) upon personal delivery, or (ii) twenty-four
(24) hours after deposit with a nationally-recognized overnight courier
service, or (iii) three (3) days after deposit with the U.S. postal service,
registered or certified mail, postage prepaid. The addresses may be changed
by notice to the other party given in the same manner as provided above.
If to Borrower and Guarantors:
Concepts Direct, Inc. 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx, XX 00000 Attn:
Xxxxx Xxxxxx
With Copy to:
McGuire, Woods, Battle and Xxxxxx, LLP 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx XxXxxx, XX 00000-0000 Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to Bank:
Bank One, Colorado, NA 0000 - 00xx Xxxxxx Xxxxxx, Xxxxxxxx 00000 Attention:
Xxxx XxXxxx, Vice President Western Region Real Estate With copy to:
Bank One, Arizona, NA 000 X. Xxxxxxx Xxx. 14th Floor, Dept. A909 Xxxxxxx,
XX 00000 Attention: Western Region Loan Administration
17.6 Authority to File Notices. Borrower irrevocably appoints, designates
and authorizes Bank as its agent (said agency being coupled with an
interest) to send to any third part-y any other notice or documents or take
any other action that Bank deems necessary or desirable to protect its
interest hereunder, or under the Loan Documents, and will upon request by
Bank, execute such additional documents as Bank may require to further
evidence the grant of the aforesaid right to Bank.
17.7 Time. Time is of the essence hereof.
17.8 Amendments, etc. No amendment, modification, termination or waiver of
any provisions of this Agreement or of any of the Loan Documents nor consent
to any departure by Borrower therefrom shall in any event be effective
unless the same shall be in writing and signed by Bank, and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given.
17.9 Headings. The article and section headings in no way define, limit,
extend or interpret the scope of this Agreement or of any particular article
or section.
17.10 Number and Gender. When the context in which the words are used in
this Agreement indicate that such is the intent, words in the singular
number shall include the plural and vice versa. References to any one
gender shall also include the other gender if applicable under the
circumstances.
17.11 Validity. In the event that any provisions of this Agreement shall
be held to be invalid, the same shall not affect in any respect whatsoever
the validity of the remainder of this Agreement.
17.12 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
17.13 Survival of Warranties. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement and of the Loan Documents and the extension of the Loan hereunder
and continue in full force and effect until the Obligations of Borrower
hereunder evidenced by the Note have been fully paid and satisfied.
17.14 Automatic Acceleration. Should there occur an Event of Default which
would, with the giving of notice, the passage of time, or both, constitute
an Event of Default hereunder and if a petition under the United States
Bankruptcy Code thereafter is filed by or against Borrower while such event
remains uncured and such petition is not dismissed within thirty (30) days
of filing, all obligations hereunder shall be automatically accelerated and
due and payable and the Default Rate of interest provided for in the Note
shall automatically apply as of the date of the first occurrence of the
event which would, with the giving of notice, the passage of time, or both,
constitute an Event of Default, without any notice, demand or action of any
type on the part of Bank (including any action evidencing the acceleration
or imposition of the default rate of interest). The fact that the Bank has,
prior to the filing of the voluntary petition under the United States
Bankruptcy Code, acted in a manner which is inconsistent with the
acceleration and imposition of the default rate of interest provided for in
the Note, shall not constitute a waiver of this Section 10. 14 or estop Bank
from asserting or enforcing Bank's rights hereunder.
17.15 Attorneys Fees and Other Costs. Borrower shall reimburse Bank for
all reasonable attorneys' fees and expenses reasonably incurred by Bank in
connection with the enforcement of Bank's rights under this Agreement and
each of the other Loan Documents, including, without limitation, attorneys'
fees and reimbursements for trial, appellate proceedings, out-of-court
workouts and settlements and for enforcement of rights under any state or
federal statute, including, without limitation, attorneys' fees incurred in
bankruptcy and insolvency proceedings such as in connection with seeking
relief from stay in a bankruptcy proceeding or negotiating and documenting
any amendment or modification of the Loan or reviewing subsequent Loan
submission items. Borrower shall pay all costs, including without
limitation costs of title searches, title commitments, appraisals,
environmental audits, third-party consultants, UCC searches, incurred by the
Bank in enforcing payment and performance of the Loan, exercising rights and
remedies of Bank under the Loan Documents, or reviewing Loan submission
items. Borrower's reimbursement obligation shall be part of the
indebtedness evidenced and secured by the Loan Documents.
17.16 Severability; Titles. If any provision of this Loan Agreement or of
any other Loan Document securing or executed in connection with this Loan
Agreement is, for any reason and to any extent, invalid or unenforceable,
then neither the remainder of the Loan Document in which such provision is
contained, or the application of the provision to other persons, entities or
circumstances, nor any other document referred to in this Loan Agreement,
shall be affected by such invalidity or unenforceability, and there shall be
deemed substituted for the invalid unenforceable provision the most similar
provision which would be valid and enforceable under applicable law.
17.17 Right to Participate or Assign Loan. Bank shall retain the right at
all times, with or without Borrower's consent, to grant participation in or
to assign all of the Note or any portion thereof, together with the
collateral for repayment of the Note, to any other entity acceptable to
Bank, and Borrower acknowledges that Bank shall have the right to share any
and all information concerning Borrower with any prospective loan
participant or assignee. Notwithstanding the foregoing, in the event of a
participation in or assignment of the Loan, Bank One, Colorado, NA, a
national banking association, shall retain the right to make decisions
without the consent of the participant or assignee.
17.18 Waiver of Rights. Borrower for itself, and for all who may claim
through or under it, waives (a) the right to trial by jury on any issues
between Borrower and Bank and to any issues pertaining to the Loan Documents
and as to matters pertaining to the acts of the Bank prior to the date
hereof; and (b) any and all right to have the property and estates
comprising the Property marshalled upon any foreclosure of the lien and
security interests of the Loan Documents and agrees that any court having
jurisdiction to foreclose such lien may order the Property sold as an
entirety.
17.19 Counterparts. This Development Loan Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
shall constitute the same document.
IN WITNESS WHEREOF, Borrower and Bank have executed this Agreement as of the
date first written above by and through their duly authorized
representatives.
BORROWER: CONCEPTS DIRECT, INC., a Delaware corporation _
By: /S/ H. Xxxxxxxx Xxxxxx, Xx. H. Xxxxxxxx Xxxxxx, Xx. Chief Financial
Officer
BANK: BANK ONE, COLORADO, NA
By: /S/ Xxxxx XxXxxx Xxxx XxXxxx Vice President
