construction LOAN AGREEMENT
Exhibit 10.1
construction
LOAN AGREEMENT
THIS CONSTRUCTION LOAN AGREEMENT (this “Loan Agreement”) is made and entered into as of this 22nd day of December, 2021, by and between _________, LLC, a Delaware limited liability company (“Borrower”), and ____________, LLC, a Delaware limited liability company (“Lender”).
WHEREAS, concurrently with this Loan, ____________, LLC, a Delaware limited liability company, and affiliate of Lender (“Lender B”), has made a loan in an amount up to ____________AND NO/100 DOLLARS ($____________) (“Loan B”) to ____________, LLC, a Delaware limited liability company (“Borrower B”), pursuant to that certain Construction Loan Agreement dated of even date herewith, by and between Borrower B and Lender B (the “Loan B Loan Agreement”). Loan B is secured pursuant to a security instrument (the “Loan B Security Instrument”) by certain land located in ____________, having an address of ____________, and more particularly described in that certain the Loan B Loan Agreement, and the improvements located thereon, including a ____________ (“Loan B Secured Property”). The Loan B Loan Agreement and the documents described in Section 3.1(a) of the Loan B Loan Agreement are the “Loan A Documents”); and
WHEREAS, concurrently with this Loan, ____________, LLC, a Delaware limited liability company, and affiliate of Lender (“Lender C”), has made a loan in an amount up to ____________ AND NO/100 DOLLARS ($____________) (“Loan C”) to ____________, LLC, a Delaware limited liability company (“Borrower C”), pursuant to that certain Construction Loan Agreement dated of even date herewith, by and between Borrower C and Lender C (the “Loan C Loan Agreement”). Loan C is secured pursuant to a security instrument (the “Loan C Security Instrument”) by certain land located in ____________, having an address of ____________, and more particularly described in the Loan C Loan Agreement, and the improvements located thereon, including a ____________ (“Loan C Secured Property”). The Loan C Loan Agreement and the documents described in Section 3.1(a) of the Loan C Loan Agreement are the “Loan C Documents”); and
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ARTICLE I
In addition to the other terms hereinafter defined, the following terms shall have the meanings set forth in this Article I.
1.4 Completion Date . Eighteen (18) months from the date hereof.
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1.8 Draw Request . As defined in Article VI hereof.
1.9 Engineer. The engineer hired by Borrower with respect to the construction of the Improvements.
1.10 Environmental Laws . As defined in the Indemnity Agreement.
1.11 Event of Default . As defined in Article VII hereof.
1.14 Inspecting Engineer . The party designated by Lender from time to time.
1.17 Permitted Transfer. A Permitted Transfer shall mean any of the following:
(a) The transfer by any member of Borrower of its membership interest in Borrower, in whole or in part, to a Person that is owned or controlled by, is under common ownership and control with or owns and controls the original member; provided that such transfer does not result in a change in control of Borrower;
(b) The transfer constitutes a Permitted Encumbrance at the time such Transfer occurs;
(c) Leases in the ordinary course of Borrower’s business;
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(d) Exercise of any rights by Franchisor pursuant to the Franchise Agreement;
(e) The sale or disposition of equipment that is worn out, undesirable, obsolete, disused, or unnecessary for use in the operation of the Property upon replacing the same by, or substituting for the same (unless no longer necessary), other equipment not necessarily of the same character, but of at least equal utility to Borrower, which shall forth-with become, without further action, subject to the lien and security interest of the Security Instrument;
(f) The grant of an easement, covenants, conditions and restrictions if the easement shall not materially affect the value of the Property, the operation of the Property or Lender's interest in the Property, or violate the terms of the Franchise Agreement;
(g) The transfer of any membership interests of Borrower in one or a series of transactions by which an aggregate of less than forty-nine percent (49%) of such membership interests shall be vested in a party or parties who are not now interest holders; provided that such transfer does not result in a change in control of Borrower;
(h) Any involuntary transfer caused by the death or legal incapacity of any individual; and
(i) Transfers for estate planning purposes of any individual’s direct or indirect interests in any entity to the spouse or any lineal descendant (which includes natural or adopted issue, siblings and parents) of such individual, or to a trust for the benefit of any one or more of such individual, spouse or lineal descendant.
(j) The successor of BitNile Holdings, Inc. as Xxxx Alliance, Inc.’s sole shareholder.
(k) The transfer of Xxxx Alliance, Inc.’s membership interests in Agree Madison, LLC to AGREE, Inc., a wholly owned subsidiary of Xxxx Alliance, Inc., subject to Lender’s successful underwriting and search of AGREE, Inc., as providing in the following paragraph.
Notwithstanding the foregoing, if any transfer (individually or in the aggregate) permitted hereunder (excluding any transfer of an interest in subsections (h) or (i) above) results in any single entity or individual obtaining direct or indirect ownership in Borrower in an amount equal to or greater than 20%, then prior to such transfer, Lender shall have the right to conduct a background search, including any OFAC-related search, and require delivery of any information (including, without limitation, driver’s licenses, passports, and social security numbers), necessary to determine if such entity or individual is reasonably acceptable to Lender. If Lender determines that such entity or individual obtaining direct or indirect ownership in Borrower is not reasonably acceptable, then such transfer shall not be permitted.
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1.25 Work. The work described in the Cost Breakdown and in the Plans.
ARTICLE II
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ARTICLE III
3.1 Conditions Precedent To The Loan.
(i) The Note;
(ii) The Construction Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing (the “Security Instrument”);
(iii) The Assignment of Project Documents made by Borrower in favor of Lender (the “Secured Property Assignment”);
(iv) The Construction Completion Guaranty from Borrower and Guarantor (the “Completion Guaranty”);
(v) UCC Financing Statements;
(vi) Evidence satisfactory to Lender of ownership of the Secured Property by Borrower free and clear of encumbrances of any kind, except for the Permitted Encumbrances (as defined in the Security Instrument);
(vii) The Assignment of Leases, Rents and Profits;
(viii) The Indemnity Agreement Regarding Hazardous Materials from Borrower and Guarantor (the “Indemnity Agreement”);
(viii) The Guaranty from Guarantor (together with the Completion Guaranty and Indemnity Agreement, the “Guaranty”);
(ix) The Assignment and Subordination of Management Agreement;
(x) The Assignment of Licenses, Permits and Contracts; and
(xi) Such other documents executed in connection with the Loan as reasonably may be required by Lender or Lender's counsel.
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(i) full coverage against liens of mechanics, materialmen, laborers and any other parties who might claim statutory or common law liens;
(ii) no survey exceptions other than those theretofore approved by Lender and Lender's counsel; and
(iii) a “pending disbursement clause” in form and substance reasonably satisfactory to Lender's counsel;
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(m) Plans. A complete set of the Plans acceptable to Lender and its Inspecting Engineer.
(n) Intentionally deleted.
(o) Payment of Fees and Expenses.
(i) Borrower shall have paid on or before the Closing Date (i) to Lender a loan commitment fee in an amount equal to one percent (1.00%) of the amount of the Loan (“Loan Commitment Fee”) and (ii) to Lender, all other fees, charges, and other expenses which are then due and payable as specified in this Loan Agreement or any other Loan Document. The Loan Commitment Fee shall be fully earned when paid and shall not be refundable for any reason.
(ii) In addition to the Loan Commitment Fee, Borrower shall pay to Lender an exit fee in an amount equal to one-half percent (0.50%) of the amount of the Loan (“Exit Fee”). The Exit Fee shall be fully earned on the Closing Date; however, it shall be paid by Borrower on the earlier to occur of (x) the date of payment in full of the Loan or (y) the Maturity Date. The Exit Fee will be waived if Lender, or an affiliate of Lender, provides permanent financing or other refinancing of the Loan.
(r) Intentionally deleted.
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(d) Receipt by Lender. Lender shall have received:
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower represents and warrants to and agrees with the Lender as follows:
(a) Borrower has authorized the execution and delivery of the Loan Documents, and such execution and delivery will not violate any law, or any other agreement to which Borrower is a party.
(b) This Loan Agreement constitutes, and upon execution and delivery thereof, the Note, the Security Instrument, and the other Loan Documents will constitute, legal, valid and binding obligations of the Borrower enforceable against the Borrower.
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Except as disclosed in the aforesaid reports and financial statements, Borrower and Guarantor:
(a) Have not incurred any debts, liabilities or other obligations nor committed to incur any debts, liabilities or obligations;
(b) Have no liabilities, direct or contingent;
(c) Have made no investments in, advances to, or guaranties or obligations of any other company, person, firm, corporation, or other entity; and
(d) Are not subject to any judgment, nor are there any liens, encumbrances or security interests outstanding against Borrower or any of its properties.
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4.21 Special Purpose Entity. Borrower and any SPE Equity Owner has and will remain a “Single Purpose Entity,” which means at all times since its formation and thereafter it has and will satisfy each of the following conditions subject to the following disclosed facts and circumstances: (i) that each entity in the Borrower Group, Agree Madison, LLC, its sole member from time to time, Xxxx Alliance, Inc., and prior to a spinout, BitNile Holdings, Inc., shall be reported as consolidated in the public filings and disclosures of BitNile Holdings, Inc., and/or Xxxx Alliance, Inc., while such company is an indirect beneficial owner of any Borrower and a publicly traded company, the “Consolidated Reporting Condition”; (ii) SPE Equity Owner (i.e., Agree Madison, LLC'’s simultaneous ownership of all membership interests in each borrower within the Borrower Group, the “Co-Ownership Condition”; and (iii) the cross-collateralization and cross default of each of the Loans with each of the other Loans as provided in the Loan Documents, the “Cross-Collateralization and Cross-Default Condition”:
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(a) It will not engage in any business or activity, other than the ownership, operation and maintenance of the Secured Property and activities incidental thereto.
(b) It will not acquire, own, hold, lease, operate, manage, maintain, develop or improve any assets other than the Secured Property and such personal property as may be necessary for the operation of the Secured Property and will conduct and operate its business as presently conducted and operated.
(c) It will preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its formation or organization and will do all things necessary to observe organizational formalities.
(d) It will not merge or consolidate with any other any Person.
(e) It will not take any action to dissolve, divide or create divisions, wind-up, terminate or liquidate in whole or in part; to sell, transfer or otherwise dispose of all or substantially all of its assets (provided, that Borrower’s entering into an executory contract of sale for the Secured Property shall not, in and of itself, be deemed to violate this provision); to change its legal structure; transfer or permit the direct or indirect transfer of any partnership, membership or other equity interests, as applicable, other than transfers permitted under this Loan Agreement; issue additional partnership, membership or other equity interests, other than as permitted under this Loan Agreement, as applicable, or seek to accomplish any of the foregoing.
(f) It will not, without the prior unanimous written consent of all of Borrower’s partners, members, or shareholders, as applicable, and, if applicable, the prior unanimous written consent of 100% of the members of the board of directors or of the board of managers of Borrower or the SPE Equity Owner, take any of the following actions:
(i) File any insolvency, or reorganization case or proceeding, to institute proceedings to have Borrower be adjudicated bankrupt or insolvent.
(ii) Institute proceedings under any applicable insolvency law as a debtor.
(iii) Seek any relief, as a debtor, under any law relating to relief from debts or the protection of debtors.
(iv) Consent to the filing or institution of a bankruptcy against Borrower.
(v) File a petition seeking, or consent to, reorganization or relief with respect to Borrower under any applicable federal or state law relating to bankruptcy or insolvency.
(vi) Seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian, or any similar official for Borrower or a substantial part of its property other than for Lender’s benefit.
(vii) Make any assignment for the benefit of creditors of Borrower.
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(viii) Admit in writing in any legal proceeding Borrower’s inability to pay its debts generally as they become due.
(ix) Take action in furtherance of any of the foregoing.
(g) It will not amend or restate its organizational documents if such change would cause the provisions set forth in those organizational documents not to comply with the requirements set forth in this Section 4.21.
(h) It will not own any subsidiary or make any investment in, any other Person.
(i) It will not commingle its assets with the assets of any other Person and will hold all of its assets in its own name.
(j) It will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the following:
(i) The Loan.
(ii) Customary unsecured trade payables incurred in the ordinary course of owning and operating the Secured Property provided the same are not evidenced by a promissory note, do not exceed, in the aggregate, at any time a maximum amount of $100,000.00 in total.
(k) It will maintain its records, books of account, bank accounts, financial statements, accounting records and other entity documents separate and apart from those of any other Person and will not list its assets as assets on the financial statement of any other Person.
(l) Except for capital contributions or capital distributions permitted under the terms and conditions of its organizational documents, it will only enter into any contract or agreement with any general partner, member, shareholder, principal or affiliate of Borrower or any Guarantor, or any general partner, member, principal or affiliate thereof, upon terms and conditions that are commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with third parties; provided, however, the Asset Management and Construction Management Agreement dated December 15, 2021, by and between Agree Madison, LLC and Strategery 42, LLC, shall be deemed to comply with the foregoing requirement.
(m) It will not maintain its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person.
(n) It will not assume or guaranty (excluding any guaranty that has been executed and delivered in connection with the Note) the debts or obligations of any other Person, hold itself out to be responsible for the debts of another Person, pledge its assets to secure the obligations of any other Person or otherwise pledge its assets for the benefit of any other Person, or hold out its credit as being available to satisfy the obligations of any other Person.
(o) It will not make or permit to remain outstanding any loans or advances to any other Person except for those investments permitted under the Loan Documents and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
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(p) It will file its own tax returns separate from those of any other Person, unless Borrower (i) is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under applicable law or (ii) is required by applicable law to file consolidated tax returns, and will pay any taxes required to be paid under applicable law.
(q) It will hold itself out to the public as a legal entity separate and distinct from any other Person and conduct its business solely in its own name, will correct any known misunderstanding regarding its separate identity and will not identify itself or any of its affiliates as a division or department of any other Person.
(r) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations and will pay its debts and liabilities from its own assets as the same become due; provided, that the Property generates sufficient cash flow; and provided further, however, that nothing in this Section 4.21(r) will require any member or partner of Borrower to make any equity contribution to Borrower.
(s) It will allocate fairly and reasonably shared expenses with affiliates (including shared office space) and use separate stationery, invoices and checks bearing its own name.
(t) It will pay (or cause the Manager to pay on behalf of Borrower from Borrower’s funds) its own liabilities (including salaries of its own employees) from its own funds; provided, that the Property generates sufficient cash flow; and provided further, however, that nothing in this Section 4.21(t) will require any member or partner of Borrower to make any equity contribution to Borrower.
(u) It will not acquire obligations or securities of its partners, members, shareholders, or affiliates, as applicable.
(v) Except as contemplated or permitted by the property management agreement with respect to the Manager, Borrower’s Operating Agreement with respect to BitNile Holdings, Inc.’s and its affiliates’, it will not permit any affiliates or constituent party independent access to its bank accounts.
(w) It will maintain a sufficient number of employees (if any) in light of its contemplated business operations and pay the salaries of its own employees, if any, only from its own funds; provided, however, that nothing in this Section 4.21(w) will require any member or partner of Borrower to make any equity contribution to Borrower.
(x) If such entity is a single member limited liability company, such entity will satisfy each of the following conditions:
(i) Be formed and organized under Delaware law.
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(ii) Omitted.
(iii) Omitted.
(iv) Omitted.
(y) If such entity is a single member limited liability company that is board-managed, such entity will have a board of managers separate from that of Guarantor and any other Person and will cause its board of managers to keep minutes of board meetings and actions and observe all other Delaware limited liability company required formalities.
(a) With respect to Section 4.21(a), the SPE Equity Owner will not engage in any business or activity other than being the managing member or general partner, as the case may be, of Borrower and any other borrower in the Borrower Group, owning at least (A) 0.5% equity interest in Borrower if SPE Equity Owner is a managing member of Borrower, and (B) 0.1% equity interest in Borrower if SPE Equity Owner is a general partner of Borrower.
(b) With respect to Section 4.21(b), the SPE Equity Owner has not and will not acquire or own any assets other than its equity interest in Borrower and any other borrower in the Borrower Group, and personal property related thereto.
(c) With respect to Section 4.21(h), the SPE Equity Owner will not own any subsidiary or make any investment in any other Person, except for Borrower and any other borrower in the Borrower Group.
(d) With respect to Section 4.21(j), the SPE Equity Owner has not and will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) customary unsecured payables incurred in the ordinary course of owning Borrower and any other borrower in the Borrower Group, provided the same are not evidenced by a promissory note, do not exceed, in the aggregate, at any time a maximum amount of $250,000.00 and are paid prior to the last date allowed for payment thereof, and (B) in its capacity as managing member of Borrower (if applicable) and any other borrower in the Borrower Group.
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(e) With respect to Section 4.21(m), the SPE Equity Owner will not assume or guaranty the debts or obligations of any other Person, hold itself out to be responsible for the debts of another Person, pledge its assets to secure the obligations of any other Person or otherwise pledge its assets for the benefit of any other Person, or hold out its credit as being available to satisfy the obligations of any other Person, in each instance, except for in its capacity as managing member of Borrower (if applicable) and any other borrower in the Borrower Group.
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ARTICLE V
Until all the obligations of Borrower under this Loan Agreement have been performed and paid in full, Borrower covenants and agrees as follows:
5.5 Management of Borrower and the Property.
(a) No change in the management of Borrower, or in the business conducted by Borrower, shall be made without the prior written consent of Lender. Furthermore, Borrower shall not change the Manager for the Secured Property unless Lender has expressly otherwise allowed or required any borrower in the Borrower Group to terminate the Manager without the prior written consent of Lender, which consent shall not be unreasonably withheld; provided, Lender shall consent to a termination for cause and Borrower shall replace Manager with a manager reasonably acceptable to Lender. The payment of any base property management fees to Manager over and above an amount equal to three percent (3%) of Gross Hotel Revenues shall be subordinate to all payments to be made to Lender as provided in the Management Subordination Agreement among Lender, Borrower and Manager of even date herewith.
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(b) Notwithstanding the foregoing, upon Lender's request after the occurrence and during the continuance of any Management Termination Event (defined below), Borrower shall terminate the Management Agreement and replace the Manager with a replacement manager selected by Borrower pursuant to written a management agreement acceptable to Lender (not to be unreasonably withheld). Under no circumstances shall Lender have any liability (including, without limitation, liability for any past due management fees, incentive management fees, or termination fees) whatsoever to Manager or Borrower for causing Borrower to terminate the Management Agreement after any Management Termination Event. At or prior to Borrower's execution of a management agreement with a replacement manager, Borrower shall execute and deliver to Lender a Management Subordination Agreement, and shall cause such replacement manager to execute and deliver to Lender a Manager’s Consent and Certificate in form acceptable to Lender (not to be unreasonably withheld; provided, a Manager’s Consent and Certificate in substantially the form submitted in connection with the making of the Loan shall be acceptable to Lender). As used in this Section, a "Management Termination Event" shall mean the occurrence of any of the following: (i) any Event of Default hereunder or under any other Loan Document, (ii) any material default or event of material default by Manager under the Management Agreement (which is not cured within any applicable cure or grace periods set forth therein) or any Management Subordination Agreement, (iii) any foreclosure of the Security Instrument or deed-in-lieu of foreclosure with respect to the Property, provided that for a Management Termination Event pursuant to this subsection (iii) Borrower shall not be permitted to determine the replacement manager as described above, (iv) at any time after the twenty-fourth (24th) month of the Loan following the Closing Date the DSCR is less than 1.00:1 over two (2) consecutive quarters, (v) Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, or (vi) Manager has engaged in gross negligence, fraud, material willful misconduct or intentional misappropriation of funds.
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(a) The “Permitted Encumbrances” described in the Security Instrument and Permitted Transfers;
(b) Liens or security interests required or expressly contemplated or permitted by this Loan Agreement or other Loan Documents;
(c) Liens for taxes, assessments and other governmental charges not yet due and payable; and
(d) Tax liens, mechanics liens or other claims which do not exceed $500,000 and which are being contested in good faith, so long as Borrower has notified Lender in writing prior to doing so and so long as, in Lender’s sole, but reasonable, opinion, Lender’s interests in the Property are not jeopardized. Lender may require Borrower to post adequate security or a surety bond, reasonably satisfactory to Lender (but not to exceed 110% of the lien or claim), to protect Lender’s interest; provided, if a bond or other security protecting against a claimant’s or creditor’s right to foreclose on the Secured Property is posted in accordance with Requirements, Borrower shall not have to post any additional security with Lender.
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(a) The Property and any and all other Secured Property, are free from any Hazardous Materials (as defined in the Indemnity Agreement) except as otherwise permitted in the Indemnity Agreement.
(b) Borrower has not filed any notice under any federal or state law indicating past or present treatment, storage or disposal of any Hazardous Materials. None of the operations of Borrower is the subject of federal or state litigation or enforcement proceedings relating to Hazardous Materials, or of any investigation evaluating whether any remedial action involving a material expenditure is needed to respond to any Release (as defined in the Indemnity Agreement) of any Hazardous Materials. To the best of Borrower’s knowledge, none of the operations of Borrower is subject to any judicial or administrative enforcement proceeding alleging the violation of any Environmental Laws (as defined in the Indemnity Agreement). Borrower does not transport any Hazardous Materials.
(c) All Hazardous Materials notices, permits, licenses or similar authorizations, if any, required to be obtained or filed in connection with the operation or use of the Property, regarding Hazardous Materials or any other Secured Property, including, without limitation, past or present Release of any Hazardous Materials, have been, to the knowledge of the Borrower, duly obtained or filed.
(d) Borrower will take and continue to take prompt action to remedy all Releases or Threat of Releases (as defined in the Indemnity Agreement) of any Hazardous Materials, if any, whether or not such actions have resulted from the order or request of a municipal, state, federal, administrative or judicial authority, or otherwise. Borrower will not violate any Environmental Laws.
(e) Borrower and Guarantor do hereby indemnify and hold Lender, its officers, directors, employees, representatives, agents, and affiliates harmless against, and shall promptly pay within five (5) business days after receipt of a reasonably detailed, itemized invoice or reimburse each of them with respect to, any and all claims, demands, causes of action, actual loss, damage, liabilities, out of pocket, costs and expenses of any and every kind or nature whatsoever asserted against or reasonably incurred by any of them by reason of or arising out of or in any way related to (a) the breach of any representation or warranty as set forth herein regarding Environmental Laws, or (b) the failure of Borrower to perform any obligation herein required to be performed pursuant to Environmental Laws. The provisions of this section shall survive the final payment of the Loan and the termination of this Loan Agreement, and shall continue thereafter in full force and effect.
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(f) Notwithstanding the foregoing, Borrower and Guarantor will be released from the indemnification obligations or liabilities created in this Section 5.13 on the date (the “Sunset Date”) that is five (5) years after the payment in full of the Loan in accordance with the terms of the Loan Documents (rather than as a result of Lender taking any enforcement action, including, without limitation, foreclosure, trustee’s sale, or deed-in-lieu of foreclosure) has occurred provided that: (1) Borrower provides written notice to Lender of its desire to be released from the provisions of this Section 5.13; (ii) Borrower shall have delivered a Phase I environmental assessment of the Property dated no more than sixty (60) days prior to the anticipated date for the release of liability hereunder from an environmental engineer that is reasonably acceptable to Lender showing that the Property is free from Hazardous Materials and that no environmental condition exists in, on or under the Property which adversely affects the Property; and (iii) there is no pending, threatened or existing legal action related to the environmental condition Property or related to the remediation or other environmental protection obligations set forth in this Agreement on the anticipated date for the release of liability hereunder.
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5.25 Additional Documents. Borrower shall:
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(a) make a deposit on each Installment Due Date (as defined in the Note), as applicable, with Lender (the “Replacement Reserve Monthly Deposit”) as a reserve for replacement of furniture, fixtures and equipment (“FF&E”) used at the Property in an amount equal to four percent (4.00%) of Gross Hotel Revenues for the preceding month (the “Replacement Reserve”). The Replacement Reserve shall be available for disbursement from and after the date of the first Replacement Reserve Monthly Deposit for Lender-approved replacement of FF&E, which disbursements shall be made subject to and in accordance with the terms and conditions of this Section 5.36. Borrower shall be responsible for any costs of FF&E replacement in excess of the Replacement Reserve, and, subject to Borrower’s challenge rights in accordance with Section 5.10(d), Borrower shall pay such excess costs as and when due.
Prior to the disbursement of any Replacement Reserve (other than in connection with a requisition for an initial deposit under the applicable FF&E contract), Borrower shall submit to Lender reasonable evidence satisfactory to Lender that the applicable FF&E replacements for which funds are requisitioned have been substantially completed as required by the terms and conditions of this Loan Agreement, if applicable. Such evidence shall be in form and content reasonably acceptable to Lender and shall include, without limitation, all costs associated with the FF&E replacement for which a disbursement is being requested. Borrower shall submit to Lender such reasonable documentation in connection with the disbursement of the Replacement Reserve as Lender may reasonably request including, without limitation, paid or pending invoices and conditional lien waivers from persons supplying any labor, materials or supplies to the Secured Property in connection with the FF&E replacements. Upon approval of such replacements or, with respect to a request for funding of a deposit thereunder, approval of the FF&E contract, in each instance such approval not to be unreasonably withheld, conditioned, or delayed, Lender shall disburse the amount requested by Borrower, subject to the terms and conditions of this Loan Agreement. In no event shall Lender be under any obligation to fund any FF&E replacements in excess of the total amount of Replacement Reserve.
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(b) on each Installment Due Date, make a deposit with Lender (the “Tax and Insurance Deposit”) equal to one twelfth (1/12th) of real estate taxes which might become a lien upon the Property, and upon Lender’s election, one twelfth (1/12th) of the insurance premiums for Borrower’s insurance policies applicable to the Property (e.g., in the event the Property is covered under a blanket policy together with any other property belonging to another borrower in the Borrower Group, the insurance premium deposit shall only be for 1/12th of the portion of the premiums allocated to the Property), and with a sum of money (or allocated portion thereof) which together with the monthly installments aforementioned will be sufficient to make each of the payments aforementioned at least thirty (30) days prior to the date such payments are deemed delinquent. Should said charges not be ascertainable at the time any deposit is required to be made, the deposit shall be made on the basis of the charges for the prior year, and when the charges are fixed for the then current year, Borrower shall deposit any deficiency with Lender together with the ensuing monthly payment; provided, the same is not less than ten (10) days following Borrower’s receipt of written invoice and notice calculating such deficiency, in which event, such amounts shall be deposited within fifteen (15) days of Borrower’s receipt of such written invoice and notice (all such deposited funds comprising the “Tax and Insurance Reserve”).
(c) deposit with Lender, on the Closing Date, the sum of ____________ and No/100 Dollars ($____________) (the “Interest Reserve”), which funds may be used to pay interest due on the Loan in accordance with this Section 5.36(c). Provided no Event of Default is continuing, and to the extent sufficient revenue is not then generated from the Property to pay interest due on the Loan (as certified by Borrower to Lender in writing along with reasonable evidence thereof), Lender shall, within five (5) business days of its receipt of Borrower’s request therefor, apply funds from the Interest Reserve to the payment of interest due under this Loan Agreement from time to time. Notwithstanding anything to the contrary contained herein, Lender shall release the Interest Reserve, if any, to Borrower within ten (10) days of Borrower’s written notice to Lender, together with evidence satisfactory to Lender that Borrower has achieved and maintained a Debt Yield (as defined below) of not less than ten percent (10%) on a trailing twelve-month basis, tested quarterly, which testing shall not begin until the date of actual completion of the Work in accordance with the Plans. Nothing contained herein, however, shall diminish or negate Borrower’s obligation to pay the interest amount due under this Loan Agreement or any other amounts due from Borrower under the Loan Documents. If an Event of Default occurs and is then-continuing, Lender or Borrower may use funds in the Interest Reserve to fund immediately upcoming interest payments of the Loan, Loan B, Loan C or Loan D or other obligations then due and owing under the Loan Documents or any combination of the foregoing.
(d) All funds deposited with Lender in the Development Reserve, Replacement Reserve, Tax and Insurance Reserve and Interest Reserve (collectively the “Reserves”) shall be held in deposit accounts with a financial institution of Lender’s choice in Lender’s name and under Lender’s sole and exclusive control. Funds in the Reserve accounts will be held without interest, and will be applied in payment of the charges aforementioned when and as payable. Except as otherwise expressly provided in this Loan Agreement, the existence of the Reserves shall in no way limit or waive Borrower’s obligations to pay accrued interest, taxes, insurance premiums and replacement costs as and when due and payable.
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(e) To the extent that Borrower retains any interest in and to the Reserves, Borrower hereby grants to Lender a lien and security interest in and to the Reserves as additional security for the Loan. Borrower authorizes Lender to file any financing statement or other documents necessary to perfect Lender’s interest in and to the Reserves. At Lender’s election, Lender, Borrower and Lender’s financial institution shall concurrently herewith enter into an account control agreement to set forth the understanding of the parties with respect to the use and ownership of the Reserves. Upon an Event of Default, Lender may set off and apply any of the funds in the Reserves to the Loan in such order as Lender may elect in its sole and absolute discretion. Upon the full repayment of the Loan, the Lender shall promptly return the Reserves to Borrower or, upon Borrower’s request, apply the balance of the Reserves against the outstanding balance of the Loan being repaid.
5.38 Franchise Agreement. With respect to the Franchise Agreement, Borrower covenants and agrees:
(a) To maintain the Franchise Agreement in full force and effect during the entire term of the Loan (including any extension period);
(b) To substantially perform and/or observe all of the material covenants and agreements required to be performed and/or observed by it under the Franchise Agreement, including without limitation the maintenance of the Property in conformance with the quality assurance standards set forth in the Franchise Agreement;
(c) To notify Lender of any default under the Franchise Agreement promptly upon being made aware of such default;
(d) To enforce the substantial performance and observance of all material covenants and agreements required to be performed and/or observed by the franchisor under the Franchise Agreement; and
(e) Borrower shall not, without the prior written consent of Lender:
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(i) surrender, terminate or cancel the Franchise Agreement, unless replaced with a similarly classed franchise reasonably acceptable to Lender within thirty (30) days after termination thereof;
(ii) reduce or consent to the reduction of the term of the Franchise Agreement;
(iii) increase or consent to the increase of the amount of any charges under the Franchise Agreement; or
(iv) otherwise materially, modify, change, supplement, alter, amend or waive or release any of its material rights and remedies under the Franchise Agreement.
The DSCR shall be calculated quarterly as Actual NOI divided by the Projected Debt Service for the 12-month period immediately preceding the date of the test (the “DSCR Test”).
For purposes of the DSCR Test and Debt Yield Test (as defined below), “Actual NOI” shall mean actual gross rental, room rentals, food and beverage revenues and other income from the Property achieved during the twelve-month period immediately preceding the date of the DSCR Test minus actual operating expenses for the Property, including accruals for property taxes and insurance, the management fee payments made under the Management Agreement and the Replacement Reserve payments made, but excluding costs of the Work (including construction management and similar supervisory costs incurred in connection with the Work), during the 12-month period immediately preceding the date of the DSCR Test. “Projected Debt Service” shall mean an amount equal to twelve (12) multiplied by the monthly principal (to the extent actually payable under the Note during the projected period) and interest payment based on the principal balance of the Loan outstanding on the date of the DSCR Test at the Interest Rate (as defined in the Note).
Borrower’s failure to maintain a DSCR of 1.00 to 1 or greater (a “DSCR Failure”) beginning twenty-four (24) months after the Closing Date shall constitute an Event of Default hereunder unless the requisite DSCR Shortfall Contribution is made or DSCR Shortfall Reserve is deposited in a timely manner in accordance with the following sentence. In the event that Lender shall determine that the DSCR is less than 1.00 to 1, Borrower may either (i) make a principal payment of the Loan in an amount sufficient to satisfy the required DSCR (the “DSCR Shortfall Contribution”), which DSCR Shortfall Contribution shall be paid within twenty (20) days following written notice from Lender, or (ii) deposit with Lender, within twenty (20) days following written notice from Lender, an amount sufficient to satisfy the required DSCR (the “DSCR Shortfall Reserve”). Within ten (10) days of Borrower’s written notice to Lender, together with evidence satisfactory to Lender that such DSCR Failure no longer exists, Lender shall release the DSCR Shortfall Reserve to Borrower. Any prepayment of this Note resulting from any DSCR Shortfall Contribution shall not be subject to the Exit Fee or Premium (as defined in the Note).
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(a) Borrower’s failure to (i) beginning at any time after the twenty-fourth (24th) month of the Loan following the Closing Date, (y) maintain a DSCR of 1.00 to 1 or greater at the Secured Property for the period beginning as of the First Calculation Date and tested quarterly, (ii) maintain a debt yield (“Debt Yield”) of not less than eight and one-half percent (8.5%) for the period beginning as of the First Calculation Date and tested quarterly, or (iii) an Event of Default, shall each constitute a deposit account control trigger event (“Deposit Account Control Trigger Event”) under the Deposit Account Control Agreement (“Deposit Account Control Agreement”) between Borrower, Lender and Signature Bank, as required to be delivered hereunder, and Lender shall have the right to provide notice to Signature Bank, pursuant to the terms and conditions of the Deposit Account Control Agreement, that a Deposit Account Control Trigger Event has occurred and that Lender has elected to exercise control over the bank account(s) governed by the Deposit Account Control Agreement (the “Deposit Accounts”). Lender shall have control over the Deposit Accounts until the Deposit Account Control Trigger Event(s) has been cured by Borrower, as reasonably determined by Lender. Notwithstanding anything herein to the contrary, if a Deposit Account Control Trigger Event exists and Borrower believes the failed Debt Yield Test and/or DSCR Test, as applicable, no longer exists, Borrower may request that Lender retest the Debt Yield and/or DSCR, as applicable, and, if the applicable failure no longer exists for two quarters, tested quarterly on a trailing 12-month basis, control over such account shall be returned to Borrower. Additionally, Borrower shall have the right to cure a DSCR failure by prepaying a portion of the Loan in order to meet the DSCR Test. Debt Yield shall be calculated by dividing the Actual NOI by the sum of the outstanding balance of the Loan at the time of such calculation (the “Debt Yield Test”).
(b) Borrower shall also execute and enter into a cash management agreement (the “Cash Management Agreement”) with Lender in a form acceptable to Lender and Signature Bank, to govern the deposit and use of funds in the Deposit Accounts and the Cash Management Account (as defined below). All costs or expenses for establishing and maintaining Cash Management Account shall be paid by Borrower. Pursuant to the Deposit Account Control Agreement, upon occurrence of a Deposit Account Control Trigger Event, Signature Bank shall transfer on a daily basis all funds on deposit in the Deposit Accounts into an account established by Lender (the “Cash Management Account”), which shall be under the sole dominion and control of Lender. Amounts in the Cash Management Account shall be allocated in accordance with the Cash Management Agreement, which shall provide, among other things, that amounts in the Cash Management Account shall be allocated in the following order and priority: (i) to fund the Tax and Insurance Reserve; (ii) to fund monthly interest due under the Note; (iii) to fund the Replacement Reserve Monthly Deposit; (iv) to pay operating expenses of the Property consistent with an monthly operating budget prepared by Borrower and approved by the Lender; and (v) all other funds shall be allocated to an excess cash flow reserve sub-account to be dispersed only at the Lender’s discretion.
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5.42 Actions to Maintain Property. Borrower shall:
(a) maintain Inventory (as such term is defined in the Uniform Commercial Code), in reasonable amounts sufficient to meet the hotel industry standard for hotels comparable to the Property, and at levels sufficient for the operation of the Property at budgeted occupancy levels or as otherwise permitted under the Franchise Agreement;
(b) make, or cause to be made, all renovations and capital improvements to the Property as required by the Franchise Agreement in a good and workmanlike manner with materials of high quality, free of defects and liens, in accordance with the applicable plans and specifications and in compliance will all applicable laws, regulations and requirements;
(c) keep all Licenses in full force and effect and promptly comply with all conditions thereof;
(d) if the Note is mutilated, destroyed, lost, or stolen, promptly deliver to Lender, following Borrower’s receipt of a lost note affidavit and indemnity from Lender, in substitution therefore, a new promissory note containing the identical terms and conditions as the Note with a notation thereon of the unpaid principal and accrued and unpaid interest;
(e) not transfer any portion of the Secured Property or the beneficial ownership thereof or of Borrower without the prior written consent of Lender except as otherwise permitted hereunder; and
(f) pay to Lender all recording fees and recording costs, the reasonable, out of pocket costs of preparing any necessary documents, including reasonable attorney’s fees if any, and any other reasonable costs and expense associated with Lender’s exercise of rights hereunder.
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(a) Borrower shall at all times comply with the Patriot Act (as defined below) and all applicable requirements of governmental authorities having jurisdiction over Borrower and/or the Property, including those relating to money laundering and terrorism. Lender shall have the right, from time to time, to audit Borrower’s compliance with the Patriot Act and all applicable requirements of governmental authorities having jurisdiction over Borrower and/or the Property, including those relating to money laundering and terrorism. In the event that Borrower fails to comply with the Patriot Act or any such requirements of governmental authorities, then Lender may, at its option, cause Borrower to comply therewith and any and all reasonable costs and expenses incurred by Lender in connection with any such audit or compliance shall be secured by the Security Instrument and the other Loan Documents and shall be due and payable within five (5) business days after receipt of a reasonably detailed, itemized demand therefor. For purposes hereof, the term “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001, as the same was restored and amended by Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act (USA FREEDOM Act) of 2015 and as the same may be further amended, extended, replaced or otherwise modified from time to time, and any corresponding provisions of future laws.
At all times throughout the term of the Loan, including after giving effect to any transfers permitted by Lender, (a) none of the funds or other assets of Borrower, or Guarantor shall constitute property of, or shall be directly or indirectly controlled, or beneficially owned, directly or indirectly, by any person subject to trade restrictions under United States law, including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder, with the result that the investment in Borrower, or Guarantor, as applicable (whether directly or indirectly), would be prohibited by law (each, an “Embargoed Person”), or the Loan made by Lender would be in violation of law, (b) no Embargoed Person shall have any interest of any nature whatsoever in Borrower, or Guarantor, as applicable, with the result that the investment in Borrower, or Guarantor, as applicable (whether directly or indirectly), would be prohibited by law or the Loan would be in violation of law, and (c) none of the funds of Borrower, or Guarantor, as applicable, shall be derived from any unlawful activity with the result that the investment in Borrower, or Guarantor, as applicable (whether directly or indirectly), would be prohibited by law or the Loan would be in violation of law.
ARTICLE VI
METHOD OF DISBURSEMENT OF LOAN PROCEEDS
Lender agrees to make disbursements to Borrower against the Note up to the face amount thereof in accordance with the Cost Breakdown attached hereto as Exhibit “C” and by this reference made a part hereof, and in accordance with and subject to the following procedures:
6.1 Draw Request to be Submitted to Lender.
(a) At such time as Borrower shall desire to obtain, subject to the other requirements hereof, a disbursement of any portion of the proceeds of the Loan, Borrower shall complete, execute and deliver to Lender a request for an advance on Lender's standard form certificate for payment (hereinafter referred to as a “Draw Request”), a copy of which form is attached hereto as Exhibit “D” and by this reference made a part hereof.
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(b) Where the Draw Request includes amounts to be paid to Contractor, such Draw Request shall be accompanied by requisitions from Contractor, to be paid from the proceeds of the advance (together with invoices relating to items covered by such requisitions, when requested by Lender). All such requisitions shall show all subcontracts by name and trade, the total amount of each subcontract, and the amount theretofore paid to each subcontractor as of the date of the requisition form, and shall contain a suitable certificate by the Contractor of the accuracy of the same. For the purposes of this reference, and like references elsewhere in this Loan Agreement, the terms “subcontractor” and “subcontract” shall refer to substantial laborers, materialmen or suppliers, and contracts made by Contractor or subcontractors with them.
(c) Where the Draw Request relates to items other than payments for work performed or materials or equipment supplied, or reimbursable expenses under the Project Documents, there shall be included a statement of the purpose for which the advance is desired and/or invoices for the same, as Lender shall reasonably require.
(d) In no event shall any advance allocable to a payment on account of the construction work (as distinguished from other costs and expenses incurred with reference to the Improvements, such as financing changes, insurance or attorney's fees) exceed an amount equal to ninety percent (90%) of the total cost of Improvements theretofore completed, less the sum of all payments theretofore made against construction; provided, however, that an advance in excess thereof may be made hereunder for the purposes of: making: (I) advance deposits under Project Documents; and (II) final payment of any balance due any subcontractor (including materialmen or suppliers within the term “subcontractor”) after full and final completion of the work on the Improvements being done by such subcontractor, as certified by Inspecting Engineer, and delivery to Lender of such evidence as may be reasonably required by Lender's counsel to assure Lender that no party claims or would, after receipt of the requested disbursement, have the right to claim any statutory or common law lien arising out of such subcontractor's work or the supplying of labor, materials and/or services in connection therewith (other than for retainage not yet past due and owing).
(e) All Work done at the stage of construction for which disbursement is requested (other than disbursements for advance deposits) shall have been done in a good and workmanlike manner and all materials and fixtures usually furnished and installed at that stage of construction shall have been furnished and installed, all in compliance with the Plans. Borrower shall also have furnished to Lender such reasonable proof in Borrower’s possession or control as Lender may reasonably require to confirm the progress of the Work, compliance with applicable laws, freedom of the Property from mechanics liens (other than those which will be satisfied and released from the proceeds of a disbursement), and the basis for the requested disbursement.
(f) As a condition to each approved Draw Request, Borrower shall pay a fee of Two Thousand and No/100 Dollars ($2,000.00) to Lender per approved Draw Request.
(g) Lender shall, at Borrower’s expense, cause the Draw Requests to be inspected prior to each advance by the Inspecting Engineer.
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(h) In connection with the final Draw Request Borrower shall submit to Lender a copy of the final certificate of occupancy (if the certificate of occupancy was or was required to be modified in connection with the Work), and licenses and permits (unless previously furnished) necessary to operate the Property, which shall be a condition to Lender’s obligation to make the final disbursement of Loan funds.
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ARTICLE VII
The occurrence of any one or more of the following shall constitute an “Event of Default”:
(a) Borrower fails to pay when due any obligation to pay principal, accrued interest, premium, fee or other charge due under the Note, or other Loan Documents within five (5) days of the due date thereof. Notwithstanding the foregoing, Borrower shall not be in default for failure to make any non-recurring payment unless and until Borrower has received five (5) days’ prior written notice thereof.
(b) Default by Borrower in the due observance or performance of any term, covenant, condition or agreement on its part to be performed under this Loan Agreement, the Note, or under any other Loan Document contemplated by this Loan Agreement, or any other contract or agreement between the Borrower and the Lender in connection with this Loan; provided, in the event there is no specified notice and cure period, Borrower shall have a thirty (30) day notice and cure period within which to cure such default; provided, further, if such default is susceptible to cure, but cannot reasonably be cured within such period, Borrower shall be entitled to a reasonable extension of the cure period so long as Borrower initiates the cure within the thirty (30) day period and thereafter diligently and expeditiously pursues the cure to completion, except that in no event will the cure period under this subsection exceed sixty (60) days from the date Borrower receives the notice from Lender.
(c) If Borrower shall:
(i) Make a general assignment for the benefit of its creditors;
(ii) File a voluntary petition in bankruptcy, as a debtor;
(iii) Be adjudicated as bankrupt or insolvent;
(iv) File any petition or answer seeking, consenting to, or acquiescing in, reorganization, arrangement, composition, liquidation, dissolution or similar relief, as a debtor, under any present or future statute, law or regulation for the protection of debtors;
(v) File an answer admitting or failing to deny the material allegations of the petition against it for any such relief as a debtor;
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(vi) Admit in writing, in any legal proceeding, its inability to pay its debts as they mature;
(vii) Permanently cease to operate Borrower’s business; or
(viii) Be unable to pay debts as they become due.
(d) Borrower fails to have vacated or set aside within thirty (30) days of its entry any court order appointing a receiver or trustee (except if Lender sought the appointment) for all or a substantial portion of the Borrower's property.
(e) Any warranty, representation or statements made or furnished to Lender by Borrower in connection with the Loan or in connection with this Loan Agreement or any other Loan Document (including any warranty, representation or statement in the application of Borrower for the Loan or in any accompanying financial statements) or to induce Lender to make the Loan, proves to be untrue, misleading or false in any material respect, when made; provided, however, that if any financial statements furnished under Section 5.6 of this Loan Agreement is determined by Lender to be untrue, false or misleading in any material respect, Borrower shall have a cure period of fifteen (15) days after receipt of Lender’s written notice to provide a true and accurate copy of that same financial statement(s).
(f) Borrower suffers or permits any lien, encumbrance or security interest to attach to any of its property (including, without limitation, the Secured Property), except for Permitted Encumbrances and not be released (by payment, bonding or otherwise) within thirty (30) days after the date of filing thereof, unless Borrower is otherwise challenging such lien, encumbrance or security interest as expressly permitted in accordance with this Loan Agreement.
(g) Borrower defaults in the payment of any principal or interest on any material obligation to any other creditor, beyond applicable notice and cure periods.
(h) Except for a Permitted Transfer, Borrower shall sell, lease, or otherwise transfer or convey any of the Secured Property, or any legal or beneficial interest in the Borrower, or any interest therein in violation of this Loan Agreement or any other Loan Document.
(i) The occurrence of any material default by Borrower under the Franchise Agreement, including without limitation, a failure of Borrower to maintain the Property in conformance with the quality assurance standards set forth therein and to pay all associated franchise fees and the failure to correct or cure such failure within the notice and cure periods provided in the Franchise Agreement, or the Franchise Agreement is terminated for any other reason and not replaced with a franchise license agreement approved by Lender within thirty (30) days after termination of the Franchise Agreement.
(j) The dissolution of Borrower (regardless of whether election to continue is made), or any other termination of Borrower’s existence as a going business.
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(k) (1) any suit shall be filed against Borrower or Guarantor, which if adversely determined, would reasonably be expected to impair the ability of Borrower or Guarantor from being able to perform each and every one of their respective material obligations under and by virtue of the Loan Documents, or (2) unless adequately covered by insurance in the opinion of Lender, the entry of a final judgment for the payment of money involving more than Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) against Borrower and the failure by Borrower to discharge the same, or cause it to be discharged, or bonded off to Lender’s satisfaction, within thirty (30) days from the date of the order, decree or process under which or pursuant to which such judgment was entered.
(l) Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, the Guaranty or Guarantor, collectively, fails to meet the liquidity requirements under the Guaranty and/or Completion Guaranty; provided that in the event of Guarantor’s death or incompetency Borrower shall have a period of sixty (60) days from such date of death of incompetency to provide to Lender a substitute guarantor acceptable to Lender.
(m) A material adverse change occurs in Borrower’s or Guarantor’s financial condition, or Lender believes the prospect of payment or performance of the Loan is impaired. For purposes hereof, a material adverse change is one which could reasonably be expected to materially impair the ability of Borrower or Guarantor to perform their obligations under the Loan Documents.
(n) Excluding planned phasing and scheduling of the Work (for example, in order to avoid ongoing construction during “peak” occupancy periods), the Work shall cease and not be resumed within thirty (30) days thereafter or shall be affirmatively, permanently abandoned.
(o) Lender or its representatives or the Inspecting Engineer shall not be permitted, at all reasonable times, to enter upon the Property to inspect the Work and all materials, fixtures and articles used or to be used therein, and to examine all detailed plans, shop drawings, specifications and other records which relate to the Work, or if Borrower shall fail to furnish to Lender, copies of plans, shop drawings, specifications and records in Borrower’s possession or control, and any condition described in this paragraph shall not be cured within five (5) days from receipt of reasonably detailed demand therefor.
(p) Any of the materials, fixtures, machinery, equipment, articles and/or personal property used in the Work shall not fully substantially comply with the Plans (except as otherwise permitted under the Loan Documents) or Borrower shall have materially defaulted beyond all applicable notice and cure periods under any of the Project Documents and shall have failed to: (I) commence enforcement (which may include self-help, mitigation and/or replacement) of any other defaulted party’s obligations under the Project Documents within thirty (30) days after obtaining actual knowledge thereof; or (II) in connection with a termination due to Borrower’s or Manager’s default thereunder, replace such Project Documents within sixty (60) days after termination thereof.
(q) The Work, in the reasonable judgment of Lender, is not or cannot reasonably be, completed on or before the Completion Date and Borrower or Guarantor are unable to cause the schedule to be restored within thirty (30) days after receipt of Lender’s written notice of making the foregoing determination.
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(r) Any lien for labor, materials or taxes (except for ad valorem taxes not yet due and payable) or otherwise shall be filed against the Property and not be released (by payment, bonding or otherwise) within thirty (30) days after the date of filing thereof, subject to Borrower’s right to challenge the same as permitted in this Loan Agreement.
(s) A levy shall be made under any process on, or a receiver be appointed for, the Property or any part thereof or any other property of Borrower or Guarantor.
(t) Borrower shall execute (in favor of a party other than to Lender) any conditional xxxx of sale, chattel mortgage, security agreement or other security instrument covering any materials, fixtures, machinery, equipment, articles and/or personal property intended to be incorporated in the Improvements or the appurtenances thereto, or placed in the Improvements other than: (I) as required by the Permitted Encumbrances; (II) an executory contract of sale for the Property; (III) the Contracts; (IV) the Project Documents; (V) such other contracts, agreements or other instruments as contemplated by Borrower’s then-approved operational budget; (VI) Approved Leases; and (VII) with Lender’s consent, or if a financing statement publishing notice of such security instrument shall be filed, or if any of such materials, fixtures, machinery, equipment, articles and/or personal property shall not be purchased so that the ownership thereof will vest unconditionally in Borrower, free from encumbrances other than to Lender, on delivery at the Property, or if Borrower shall not produce to Lender within ten (10) days after receipt of reasonably detailed demand therefor the contracts, bills of sale, statements, receipted vouchers or agreements, or any of them, under which Borrower claims title to any thereof, to the extent in Borrower’s possession or control.
(u) Intentionally deleted.
(v) Borrower fails to maintain the Interest Rate Protection Agreement.
(w) (i) The occurrence of a default by Borrower under any agreement, Contract or instrument to which Borrower is a party or by which Borrower is bound, or by which Manager or any affiliate of Borrower or Manager is bound in respect of the Property, other than a Loan Document the termination or suspension of which, or the failure of any party thereto to perform its obligations thereunder, could, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, assets, tax and other liabilities (contingent or otherwise), properties, solvency, business, management, prospects of Borrower, Lender’s security interest in the Secured Property, or the value, utility, operation or legality of the Property (a “Material Agreement”) after the giving of notice and the expiration of a cure period, or both, to the extent, if any, provided for therein; or (ii) the occurrence of a default by the other party under any other Material Agreement after the giving of notice and the expiration of a cure period, or both, to the extent, if any, provided for therein if (A) Lender determines in its good faith credit judgment that such default by such other party reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, assets, tax and other liabilities (contingent or otherwise), properties, solvency, business, management, prospects of Borrower, Lender’s security interest in the Secured Property, or the value, utility, operation or legality of the Property, and (B) Borrower fails to terminate such Material Agreement, as applicable, and Borrower fails to enter into a replacement Material Agreement acceptable to Lender in its reasonable discretion.
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(x) Borrower fails to comply with the provisions of Section 4.21 or Section 4.22 of this Loan Agreement; provided, Borrower shall have a thirty (30) day notice and cure period within which to cure such default, to the extent such default could be cured; provided, further, if such default is susceptible to cure, but cannot reasonably be cured within such thirty (30) day period, Borrower shall be entitled to a reasonable extension of the cure period so long as Borrower initiates the cure within the thirty (30) day period and thereafter diligently and expeditiously pursues the cure to completion, except that in no event will the cure period under this subsection exceed sixty (60) days from the date Borrower receives the notice from Lender.
(y) An Event of Default occurs under that certain Cross-Collateralization Agreement of even date herewith by and among Borrower Group and Lender Group.
ARTICLE VIII
(a) Move to protect its rights and remedies as a secured party under the Security Instrument, by extrajudicial authority as set forth in the Security Instrument, by action at law or equity, or by any other lawful remedy to enforce payment.
(b) Apply the proceeds from any disposition of the Secured Property to the satisfaction of the following items in the order in which they are listed:
(i) The out of pocket expenses of taking, preserving, insuring, repairing, holding and selling the Secured Property, including any reasonable, actual legal costs and reasonable attorney's fees. If the Note shall be referred to an attorney for collection, Borrower and all other Borrower Group members liable on the Note, jointly and severally agree to pay Lender’s reasonable, out of pocket attorney's fees and all reasonable costs of collection.
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(ii) The unpaid amount of any interest due on the Note, and all other reasonable, out of pocket, enforcement expenses of Lender.
(iii) The unpaid principal amounts of the Note.
(iv) Any other indebtedness of Borrower to Lender.
(v) The remainder, if any, to Borrower, it being understood and agreed that if the proceeds realized from the disposition of the Secured Property shall fail to satisfy items (i) through (iv) above, Borrower shall forthwith pay any such deficiency to Lender upon demand.
(c) Exercise any and all rights of setoff which Lender may have against any account, fund or property of any kind, tangible or intangible, belonging to Borrower and which shall be in Lender's possession or under Lender's control.
(d) Exercise exclusive control of the Accounts and the Reserves.
(e) In the event of a termination of the Franchise Agreement which is not replaced within thirty (30) days as provided in this Loan Agreement, in addition to all other remedies hereunder, at law or in equity, Lender shall have the right to retain all excess cash flow in the Accounts (after payment of debt service, Reserves and normal and customary operating expenses for the Property) (“Net Cash Flow”) and to deposit such Net Cash Flow in an account controlled exclusively by Lender for the purpose of maintaining a property improvement reserve to pay Property upgrade costs required to obtain a new Franchise Agreement from the current franchisor or to obtain a franchise agreement from another, similarly classed, hotel franchisor.
(a) to enter into possession of the Property;
(b) to perform or cause to be performed any and all work and labor necessary to complete the Work in accordance with the Plans, with such modifications thereto as Lender shall deem to be necessary or desirable to complete the scope of work as contemplated by the Plans and Project Documents;
(c) to employ security watchmen to protect the Property; and
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(d) to disburse that portion of the Loan proceeds not previously disbursed to the extent necessary to complete the construction of the Work in accordance with the Plans, and if Guarantor fails to perform under the Completion Guaranty, if such completion requires a larger sum than the remaining undisbursed portion of the Loan, to disburse such additional funds, all of which funds so disbursed by Lender shall be deemed to have been disbursed to Borrower and shall be secured by the Security Instrument. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete the Work in the name of Borrower, and hereby empowers Lender, as said attorney, to take all actions deemed by Lender to be necessary in connection therewith including, but not limited to, the following: to use any funds of Borrower and any balance which may be held by Lender as security or in escrow and any funds which may remain unadvanced hereunder for the purpose of completing the Work in the manner called for by the Plans; to make such additions, changes and corrections in the Plans as Lender shall deem to be reasonably necessary or desirable; to employ such contractors, subcontractors, agents, architects and inspectors as shall be reasonably required for said purposes; if Guarantor fails to perform under the Completion Guaranty to pay, settle or compromise all existing or future bills and claims which are or may be liens against the Property, or may be necessary or desirable for the completion of the Work or the clearance of title to the Property (as subject to the Permitted Encumbrances); to execute all applications and certificates in the name of Borrower which may be required by any Requirement or governmental authority or Project Document; and to do any and every other act with respect to the Work and the operation of the Property which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked by death or otherwise. As said attorney-in-fact, Lender shall also have power (but not the duty) to prosecute and defend all actions or proceedings in connection with the Work and to take such reasonable action and require such performance as it deems reasonably necessary. In accordance therewith Borrower hereby assigns and transfers to Lender all sums to be advanced hereunder and any sums held by Lender as security or in escrow, conditioned upon the use of said sums for the completion of the Work and the performance of Borrower's obligations under the Loan Documents.
ARTICLE IX
Borrower's obligation for payment of amounts due under the Note shall be collateralized by the Secured Property.
ARTICLE X
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10.4 Governing Law And Parties Bound. The parties agree that this Loan Agreement shall be deemed to have been executed and delivered in Xxxxxx County, Georgia. This Loan Agreement and the Note shall be governed by and construed in accordance with the laws of the State of Georgia and shall be binding upon and shall inure to the benefit of the parties hereto, their successors and assigns. The parties hereto acknowledge that this Loan Agreement evidences a transaction involving interstate commerce. The United States Arbitration Act, 9 U.S.C. § 1, et seq., shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause set forth in paragraph 10.6 of this Loan Agreement.
10.5 Consent to Jurisdiction and Venue. The parties hereto irrevocably and unconditionally submit to the jurisdiction of the state and federal courts sitting in Xxxxxx County, Georgia with respect to any action or proceeding arising out of or related to this Loan Agreement or any other contract or agreement entered into between the parties hereto. The state and federal courts sitting in Xxxxxx County, Georgia shall be the exclusive venue for any action or proceeding arising out of or related to this Loan Agreement subject to Lender’s right to elect arbitration.
10.6 LENDER’S UNILATERAL RIGHT TO ELECT AND COMPEL ARBITRATION.
(a) AT THE SOLE AND EXCLUSIVE OPTION OF LENDER, ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS LOAN AGREEMENT, OR ANY OTHER CONTRACT OR AGREEMENT ENTERED INTO BETWEEN THE BORROWER AND LENDER, SHALL BE SETTLED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES THEN IN EFFECT, AND JUDGMENT ON THE ARBITRATION AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
(b) THE LOCATION OF ARBITRATION SHALL BE ATLANTA, GEORGIA.
(c) THE ARBITRATION SHALL BE CONDUCTED IN THE ENGLISH LANGUAGE.
(d) In the event that any affirmative claim asserted in the arbitration is equal to or exceeds $1,000,000, exclusive of interest and attorneys’ fees, the dispute shall be heard and determined by three (3) arbitrators.
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(e) within THIRTY (30) days AFTER the service of A written request FOR PRODUCTION OF DOCUMENTS, THE RECEIVING PARTY SHALL provide the REQUESTING Party with copies of requested documents THAT are relevant to the CLAIMS, COUNTERCLAIMS, AND DEFENSES ASSERTED IN THE ARBITRATION, anD THAT ARE NOT PRIVILEGED. Any OBJECTION TO A REQUEST FOR PRODUCTION OF DOCUMENTS THAT CANNOT BE RESOLVED BETWEEN THE PARTIES TO THE ARBITRATION shall be determined by the arbitrator(s), which determination shall be conclusive. This procedure related to the production of documents shall be the sole form of written discovery permitted in the arbitration.
(f) EACH PARTY TO THE ARBITRATION shall be permitted to take a maximum of three (3) depositions of fact witnesses. To the extent that A PARTY TO THE ARBITRATION desires to take more than three (3) fact witness depositions, the Party shall request PERMISSION FROM THE ARBITRATOR(S) to take the additional deposition(s). The arbitrator(s) shall permit additional fact witness deposition(S) upon good cause shown OR THE AGREEMENT OF THE PARTIES. No fact witness deposition shall last longer than FOUR (4) hours of deposition time. All objections TO QUESTIONS POSED IN THE DEPOSITION(S) shall be reserved for the arbitration hearing except for objections based upon privilege.
(g) To the extent that either Party to the Arbitration intends to rely upon the testimony of an expert witness(es) during the arbitration hearing, the other Party shall be entitled to depose the expert witness(es) for a maximum of seven (7) hours OF DEPOSITION TIME. The expert witness(es) shall produce a report or statement which sets out their EXPERT opinion and the factual and legal basis thereof at least fourteen (14) days prior to the scheduled deposition, and at least thirty (30) days prior the date of the arbitration hearing. All objections TO QUESTIONS POSED IN THE DEPOSITION(S) shall be reserved for the arbitration hearing.
(h) The arbitration award shall be made within one hundred twenty (120) days after the appointment of the arbitrator(s), and the arbitrator(s) shall agree to comply with this schedule before accepting appointment.
(i) The Parties shall bear an equal share of the arbitrators’ and administrative fees.
(j) Notwithstanding any legal authority to the contrary, “manifest disregard of the law” ON THE PART OF THE ARBITRATOR(S) IN RENDERING AN AWARD SHALL constitute a valid ground for vacatur.
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10.11 Time. Time is of the essence of this Loan Agreement.
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47 |
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(a) Borrower shall give written notice to Lender of its desire to extend the term of the Loan (the “Extension Notice”) not earlier than one hundred twenty (120) days or later than thirty (30) days prior to the then-scheduled Maturity Date.
(b) The Property shall have achieved a Debt Yield equal to or greater than (i) eight and one-half percent (8.5%) with respect to the first Extension Term, and (ii) nine and one-half percent (9.5%) with respect to the second Extension Term.
(c) If the required Debt Yield has not been achieved as of the date of the applicable Extension Notice, Borrower may make a principal payment of the Loan in an amount sufficient to bring the Loan into compliance with the applicable Debt Yield requirement (the “Extension Shortfall Contribution”), which Extension Shortfall contribution shall be paid not later than the commencement date of the applicable Extension Term. Any prepayment of this Note resulting from any Extension Shortfall Contribution shall not be subject to the Exit Fee or Premium.
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(d) No Event of Default shall have occurred and be continuing as of the date of the Extension Notice or the original Maturity Date (or in the case of the second Extension Term, the first extended Maturity Date).
(e) The representations and warranties set forth in this Loan Agreement, in the other Loan Documents, and in any document or certificate delivered to Lender under this Loan Agreement are true and correct as of the date made (with respect to representations as to a certain date) and both as of the date the Extension Notice is given and the original Maturity Date (or in the case of the second Extension Term, the first extended Maturity Date); provided, the foregoing condition shall not be deemed violated due to representations that cannot be truthfully remade due to changes in facts and circumstances not resulting from a failure of Borrower to comply with the Loan Documents or other default of Borrower hereunder.
(f) By not later than the commencement date of the applicable Extension Term, Borrower shall pay to Lender an extension fee in an amount equal to one-quarter percent (0.25%) of the outstanding principal balance of the Loan on such date.
(a) Concurrently herewith, Borrower shall execute the Security Instrument, Borrower B shall execute the Loan B Security Instrument, Borrower C shall execute the Loan C Security Instrument and Borrower D shall execute the Loan D Security Instrument, which will grant Lender Group a lien on and security interest in the Aggregate Secured Property, as applicable, as security for the obligations of Borrower Group with respect to the Aggregate Loan, as applicable, entitling Lender Group to, among other things, foreclose on the Aggregate Secured Property and apply the proceeds of such foreclosure to the payment of the amounts owing with respect to the Aggregate Loan.
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(b) To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to the marshalling of assets of Borrower, Borrower’s partners and others with interests in Borrower, and of each individual Aggregate Secured Property, or to a sale in inverse order of alienation in the event of foreclosure of all or any of the Aggregate Security Instruments, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender Group under the Aggregate Loan Documents to a sale of an individual Secured Property for the collection of the Obligations without any prior or different resort for collection or of the right of Lender to the payment of the Obligations out of the net proceeds of the Secured Property, the Loan B Secured Property, the Loan C Secured Property or the Loan D Secured Property in preference to every other claimant whatsoever. In addition, Borrower, for itself and its successors and assigns, waives in the event of foreclosure of any or all of the Aggregate Security Instruments, any equitable right otherwise available to Borrower which would require the separate sale of the Aggregate Secured Property or require Lender Group to exhaust its remedies against any other individual Aggregate Secured Property or combination of the Aggregate Secured Property; and further in the event of such foreclosure Borrower does hereby expressly consent to and authorize, at the option of Lender Group, pursuant to the terms hereof, the foreclosure and sale either separately or together of any combination of the Aggregate Secured Property.
(c) From and during the occurrence of an Event of Default, (i) Lender Group shall have the right to pursue, without limitation, any and all remedies available under any and/or all of the Aggregate Security Instruments and the other Loan Documents and to levy against all or any portion of the collateral held by Lender Group, and (ii) all payments of principal, interest and any and all other sums paid on or with respect to the Loan (whether upon foreclosure of all or any part of the collateral for the Loan or other exercise of Lender’s rights or remedies) shall be applied to amounts owing with respect to the Loan in such proportions and with such priority as Lender shall determine in its sole discretion.
(d) As more specifically set forth in this Section 10.29, the waivers set forth in this Section 10.29 are intended only to apply to rights or defenses which Borrower may have or assert in the event that Borrower is held to be, or asserts that Borrower is, a surety of another in the Borrower Group.
(i) Borrower acknowledges and agrees that (A) each borrower in the Borrower Group is an affiliate of the other borrowers in the Borrower Group, and (B) neither Borrower Group nor Lender Group, intends that any one of the Borrower Group be treated or held to be a surety or guarantor of the obligations of the others in the Borrower Group under the Aggregate Loan Documents except as otherwise set forth in the Aggregate Loan Documents. Notwithstanding the foregoing, if and to the extent that one borrower within the Borrower Group may be treated as or deemed to be a surety or held to have any of the rights, remedies or defense of a surety for the obligations of another borrower in the Borrower Group under the Aggregate Loan Documents, then Borrower Group, to the fullest extent permitted by law, hereby knowingly, voluntarily and irrevocably waives and agrees not to assert or take advantage of any such rights, remedies or defenses.
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(ii) Without limiting the generality of the foregoing provisions, the validity, priority and enforceability of the Aggregate Security Instruments shall not be impaired or otherwise affected by (A) any failure of Borrower (should any of the Borrower Group, in its individual capacity, be deemed to be a surety) to receive notice of any default in the payment or performance of any indebtedness or other obligations any of Borrower (in its individual capacity as an obligor under the Loan Documents) that are secured by the Aggregate Security Instruments; (B) any limitation on the personal liability of Borrower (in its individual capacity as an obligor under the Loan Documents) for any indebtedness or obligation secured by the Mortgage; (C) any failure of Borrower (should Borrower be deemed to be a surety) to receive notice of, or consent to, any extension, alteration, impairment or suspension of any indebtedness or other obligations that are secured by the Aggregate Security Instruments; (D) any failure of Borrower (should Borrower be deemed to be a surety) to receive notice of, or consent to, the release by Lender Group, of any other security for, or guaranty of, any indebtedness or obligations that are secured by the Aggregate Security Instruments; (E) any failure of Lender Group to enforce any other right or remedy, or to resort to any other security or guaranty, before enforcing Lender Group’s foreclosure, receivership and other remedies under any of the Aggregate Security Instruments; and (F) any election of remedies by Lender Group, that impairs or destroys any right or remedy of Borrower (should Borrower be deemed to be a surety) against the Borrower Group (in its individual capacity treated as an obligor under the Aggregate Loan Documents) including any destruction of the right of Borrower (should Borrower be deemed to be a surety) to seek reimbursement from the Borrower Group (in its individual capacity treated as an obligor under the Aggregate Loan Documents) based on the principle of equitable subrogation as a result of Lender Group’s election to foreclose under the any of the Aggregate Security Instruments by a nonjudicial trustee’s sale.
The continuing validity and enforceability of the covenants and waivers of Borrower (should any of the Borrower Group be deemed to be a surety) in this Section 10.29 shall not be impaired or otherwise affected by any election of Lender Group, in its discretion, to give any particular notice to Borrower (should any of the Borrower Group be deemed to be a surety) or to solicit any particular consent of Borrower (should any of the Borrower Group be deemed to be a surety) that Lender Group is not obligated to give or solicit by reason of the provisions of this Section 10.29.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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BORROWER: | |||
____________, LLC, | |||
a Delaware limited liability company | |||
By: | (SEAL) | ||
Name: | |||
Title: Authorized Signatory |
[Signature page to Construction Loan Agreement]
LENDER: | |||
____________, LLC,a Delaware limited liability company | |||
By: | (SEAL) | ||
Name: | Xxxxx Xxxxx | ||
Title: Authorized Signatory |
[Signature page to Construction Loan Agreement]
The undersigned hereby expressly agree and consent to all of the terms and conditions contained herein.
GUARANTOR: | |||
XXXX ALLIANCE, INC., | |||
a Delaware corporation | |||
By: | (SEAL) | ||
Name: | |||
Title: | |||
(SEAL) | |||
XXXXXX XXXXX, an individual resident of the State of New York |
[Signature page to Construction Loan Agreement]
EXHIBIT “A”
PROPERTY
A - 1 |
EXHIBIT “B”
PLANS AND SPECIFICATIONS
B - 1 |
EXHIBIT “C”
COST BREAKDOWN
C - 1 |
EXHIBIT “D”
CERTIFICATE FOR PAYMENT | ||
Dated: | ||
For Period Ending: |
TO: | ____________, | LLC (LENDER) |
FROM: | ____________, | LLC (BORROWER) |
In accordance with the Loan Agreement (“Loan Agreement”) between Borrower and Lender dated _______________________, 20__, Borrower does hereby request that $_________ be advanced and credited to Borrower. The amount requested above is determined as follows:
[SEE ATTACHED PAYMENT REQUEST]
The undersigned Borrower does hereby certify that, as of the date hereof, all items for which previous certificates were issued and advances received have been paid; and that all labor, deposits and materials for which this advance will pay, and for which previous advances have been paid, have gone into the construction of or other approved expenses for the Work (as defined in the Loan Agreement); and that the warranties and representations of Borrower in the Loan Agreement are hereby ratified and confirmed; and that there is no Event of Default under the Loan Agreement; and that there are no offsets, counterclaims or defenses against the indebtedness which is the subject of the Loan Agreement or any instrument evidencing, securing or otherwise concerning such indebtedness; and that there are no liens of record against the Property and arising out of the supplying of labor, material and/or services in connection with the construction thereon; and that no party other than Borrower and Lender owns or claims, or has a right to claim, any interest in or lien or encumbrance on, the Property (except for Permitted Encumbrances and leased equipment as previously disclosed to Lender and except for ad valorem taxes not due and payable and liens or rights to liens to be dissolved upon payment of the advance hereby requested).
D - 1 |
Signed, sealed and delivered in the presence of: | BORROWER | |
Unofficial Witness | ||
Notary Public | ||
My commission expires: | ||
(AFFIX NOTARIAL STAMP OR SEAL)
The undersigned does hereby certify, to the best of his knowledge and belief, that the foregoing statements are true and correct, and that the attachments hereto correctly reflect any payments heretofore made to the undersigned.
IN WITNESS WHEREOF, the undersigned has set its hand and seal as of this day of , 20__.
CONTRACTOR: | ||
(SEAL) | ||
[NAME OF CONTRACTOR], a | ||
By: |
D - 2 |
EXHIBIT ”E”
WAIVER AND SUBORDINATION OF LIEN
(a) Waive and release any lien or right to lien of the Undersigned on or against said Property on account of work furnished by the Undersigned for the improvement of said Property on or before the date hereof; and
(b) Subordinate any lien or right to lien of the Undersigned on or against said Property to the lien and title of Lender in and to said Property (as granted by Lender by the documents evidencing and securing the above-mentioned loan) on account of work furnished by the Undersigned for the improvement of said Property after the date hereof; and
(c) Warrant and represent that any and all parties who have supplied work to the Undersigned for the improvement of said Property have been (or will be, out of the funds requested to be disbursed) paid in full all amounts accrued by virtue of such work through and including the date hereof (excluding retainage earned but not yet due and payable); and
(d) Warrant and represent that the Undersigned (or the individual executing this instrument on behalf of the Undersigned) has personal knowledge of the matters herein stated, and is authorized and fully qualified to execute this instrument as or on behalf of the Undersigned; and
(e) Covenant and agree that this instrument is made in consideration of the payment of the aforesaid sums to the Undersigned, and pursuant to the statutes of the State of _____________ with respect to the liens of laborers and materialmen.
E - 1 |
CONTRACTOR: | |||
(SEAL) | |||
[NAME OF CONTRACTOR], a | |||
By: | |||
Its: |
E - 2 |
EXHIBIT “F”
F - 1 |
EXHIBIT “G”
CONTRACTS
G - 1