SunTrust Bank
000 Xxxxxxxxx Xxx Xxxx Xxx 000
Xxxxxxx, XX 00000
(000) 000-0000 "LENDER"
CONSTRUCTION LOAN AGREEMENT
BORROWER: XXXXX HOLDING CORPORATION
ADDRESS: 0000 XXXXXX XXX.
TELEPHONE NO.:
IDENTIFICATION NO.: 00-0000000-000
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Officer Interest Principal Funding Maturity Customer Loan
Identification Rate Amount Date Date Number Number
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020892 VARIABLE $2,700,000.00 10/27/03 10/27/04
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Address of Real Property Securing the Loner
000 XXXXXXXXXX XXXXXXX.
XXXX, XXXXXXX 00000
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1. DEFINITIONS. In this Agreement, the following words and phrases shall have
the following meanings:
1 1 "Architect" shall mean the person or entity who has prepared Plans and
Specifications for the construction of the improvements;
1.2 "Assignment of Lease" shall mean the Assignments of Rents and Leases
executed by Borrower which creates a first lien on the leases of, and rents
from, the Property;
1.3 "Borrower" shall mean the borrower identified above;
1.4 "Code" shall mean the Uniform Commercial Code as currently enacted in the
state where the Property is located;
1.5 "Completion Date" shall mean the earlier of October 27, 2004 or the date of
issuance of a Certificate of Occupancy by the appropriate governmental
authority;
1.6 "Construction Budget" shall mean the estimated cost of the construction of
the Improvements in accordance with the Plans and Specifications as approved by
Lender;
1.7 "Contractor" shall mean the general contractor hired by Borrower to complete
construction of the Improvements;
1.8 "Guarantor" shall mean any a accommodation maker, guarantor or other party
liable for the payment of Borrower's obligations under the Loan;
1.9 "Improvements" shall mean the proposed structure(s) to be placed or
constructed upon the property by Borrower, the cost of which shall be funded in
whole or in part by periodic disbursements of the proceeds of the Loan, which
proposed structure(s) is (are) more fully described in Schedule C hereto;
1.10 "Lender" shall mean the Lender identified above;
1.11 "Loan" shall mean the construction loan made by Lender to Borrower in the
principal amount described above;
1.12 "Loan Documents" shall collectively mean the Promissory Note, Security
Instrument (as defined herein), Security Agreement, Consent of Contractor,
Consent of Architect, the construction schedule, this Agreement and any other
instrument executed in connection with or evidencing the Loan;
1.13 "Plans and Specifications" shall mean the plans and specifications approved
by Lender pertaining to the construction of Improvements upon the Property;
1.14 "Premises" shall mean the Property, together with the Improvements,
fixtures and personal property located thereon;
1.15 "Promissory Note" shall mean that certain Promissory Note in the aggregate
principal amount of the Loan payable to the order of the Lender, executed by
Borrower, evidencing the Loan;
1.16 "Property" shall mean the real property and Improvements thereon located at
the address described above the legally described in Schedule A, attached hereto
and incorporated herein by reference;
1.17 "Security Agreement" shall mean that certain security agreement executed by
Borrower that creates a first lien on all chattels, furniture, furnishings,
fixtures, machinery, equipment, appliance and other personal property owned by
Borrower and used or to he used in the operation of the Premises; and
1.18 "Security Instrument" shall mean the deed to secure debt, mortgage or deed
of trust which evidences a first lien on the Property and secures the Promissory
Note.
2. AMOUNTS AND TERMS OF LOAN.
2.1 Lender shall make the Loan to Borrower to construct the Improvements on the
terms and conditions set forth herein. Borrower agrees to execute and deliver
the Promissory Note. Advances under the Loan shall be made to Borrower or others
from time to time pursuant to the terms and conditions described in the
Promissory Note. Interest shall accrue on all sums advanced from the date of
each advance at the rate of interest described in the Promissory Note.
Principal, interest and any other sums owing under the Loan Documents shall be
repaid to Lender in the manner described therein.
2.2 Borrower agrees to pay to Lender a loan fee in the amount of $5,000.00 on
the date of closing of the Loan.
3. COLLATERAL.
3.1 To secure performance of Borrower's obligations to Lender under the Loan,
Borrower agrees promptly to execute and deliver and cause to be executed and
delivered to Lender the Security Instrument Security Agreements, Consent of
Contractor, Consent of Architect, financing statements, title insurance or title
opinions and other appropriate documents deemed necessary or desirable by Lender
to provide Lender with the first lien and security interest on the Premises. The
Security Instrument, Security Agreements, financing statements, and other
documents, shall be in a form and content satisfactory to Lender in its sole
discretion.
3.2 If required by Lender, Borrower agrees to execute and deliver to Lender an
Assignment of Leases in form and content satisfactory to Lender in its sole
discretion.
3.3. As additional collateral for the Loan, Borrower hereby grants to Lender a
security interest in and hereby assigns all of Borrower's right, title and
interest in all monies, instruments and deposit accounts of Borrower maintained
with Lender.
3.4 In the event partial releases are to be executed by Lender from time to
time, Lender shall execute and deliver such partial releases upon the conditions
and under the terms described in the Security Instrument. However, no partial
release will be executed by Lender if it would otherwise interfere with the
development of the Property which remains encumbered by the Security Instrument
or if Borrower is in default of any obligation under this Agreement or the Loan
Documents.
4. DISBURSEMENT PROCEDURES.
4.1 Disbursement of the Loan shall he made by Lender for construction and
development costs in accordance with the approved Construction Budget (covering
both hard and soft costs) and the approved schedule of estimated monthly
disbursements.
4.2 No extra work or changes in the Plans and Specifications or the Construction
Budget shall be ordered or authorized by Borrower without a written consent of
Lender. If Lender approves of any extra work or changes, Lender shall have the
right to withhold any pending or future disbursement and may require that
Borrower pay the cost of these items from Borrower's own funds and not from the
Loan proceeds.
4.3 At the time of any disbursement request, Borrower shall complete, execute
and deliver to Lender a request for an advance on Lender's standard form draw
request, attached hereto as Exhibit 1. Each request for an advance must be
accompanied by evidence in form and content satisfactory to Lender, which may
include, but may not necessarily be limited to, invoices and statements,
certificates, affidavits, title endorsements and other declarations as Lender
may deem necessary of Borrower, Architect, Contractor, or title attorney, all of
which shall show:
4.3.1 The value of the portion of the Improvements completed at that
time;
4.3.2 That all outstanding claims for labor, services and materials
through the previous draw request have been paid;
4.3.3 That there are no liens outstanding against the Premises
except the lien belonging to Lender and inchoate liens for
property taxes not yet due; and
4.3.4 That copies of all bills or statements for expenses for which
the advance is requested are attached to such draw request.
4.4 Subject to Paragraph 4.5 below, all disbursements shall be made directly to
the Contractor and applicable subcontractors, laborers and materialmen with
appropriate lien waivers affixed to each check. All Loan funds shall be
considered to be advanced to and received by Borrower upon their deposit in any
disbursement account or direct advance by Lender to the Contractor, any
subcontractors, laborers or materialmen, or charge against Loan funds as
provided in Paragraph 4.5. Interest on such funds shall be payable by Borrower
from and after such advance or receipt.
4.5 Notwithstanding the provisions of Paragraph 4.4 above, Lender may elect,
without further notice to or authorization by Borrower, to use the Loan funds to
pay, as and when due, any Loan fees owing to Lender, accrued, unpaid interest on
the Loan, amounts secured by prior liens on the Property, legal fees and
expenses of Lender's attorneys which are payable by Borrower, and such other
sums as may be owing from time to time by Borrower to Lender with respect to the
Loan. On or before each interest payment date, Lender shall invoice Borrower for
the amount of the required interest payment. Borrower shall promptly make such
payments to Lender as and when due. Notwithstanding any of the provisions of
this Paragraph, Lender's agreement to make such advance for interest or loan
fees shall be subject to compliance with the conditions precedent set forth in
Paragraph 4.9 below.
4.6 If Lender at any time determines in good faith that the amount of the
undisbursed Loan proceeds shall not be sufficient to pay fully for all costs
required to complete the Improvements in accordance with the Plans and
Specifications as well as financing and development costs to be incurred by the
Borrower, whether such deficiency is attributable to changes in the work or
construction or in the Plans and Specifications or to any cause, Lender may make
written demand on Borrower to deposit with Lender funds equal to the
amount of the projected shortage. Borrower shall deposit the required funds with
Lender within ten days after the date of Lender's written demand. No further
disbursements need to be made by Lender until those funds are deposited by
Borrower with Lender. Whenever Lender has any such funds on deposit, all
disbursements shall he made by Lender first from those fund until they are
exhausted.
4.7 At no time and in no event shall Lender be obligated to disburse funds:
4.7.1 In excess of the amount recommended by Lender's architectural or
engineering representative, who, at the option of Lender, shall make
periodic inspections of the Premises at Borrower's expense;
47.2 If any Event of Default under this Agreement, the Security
Instrument, or any other Loan Documents has occurred and has not been
cured;
4.7.3 If the Improvements have been damaged by fire or other casualty
and Lender has not received insurance proceeds sufficient in the sole
judgment of Lender to effect the restoration of the Improvements in
accordance with Plans and Specifications and to permit the completion
of the improvements on or before the Completion Date described in this
Agreement;
4.7.4 For stored materials until they are actually incorporated into
the improvements, except on such conditions and such occasions as may
be approved by Lender in its sole discretion;
4.7.5 If Lender believes in good faith that the priority of Lender's
lien maybe adversely affected; or
4.7.6 If the Lender concludes that the construction of the improvements
has fallen behind any construction schedule approved by Lender or if
Lender concludes that the cost of completing construction of the
improvements at any time will exceed the amount remaining to be drawn
under the Loan by a factor of more than ten percent (10%).
4.8 Lender shall not be required to make the first disbursement of the Loan
until Borrower has fulfilled to Lender's satisfaction all conditions of Lender's
written loan commitment to Borrower and all of Lender's customary and reasonable
loan closing and post-loan closing conditions for construction loans have been
met, which include, but are not limited to, the follows:
4.8.1. Lenders has received the executed Loan Documents (including
without limitation the Promissory Note and Security Instrument), and
the Security Instrument, Security Agreement, Assignment of Leases and
financing statements have been duly recorded or filed, as applicable;
4.8.2 After recordation of the Security Instrument, a title insurance
company acceptable to Lender must have issued, at the expense of
Borrower, an ALTA (or equivalent) Lender's extended coverage policy of
title insurance in an amount and form satisfactory to Lender subject
only to exceptions approved by Lender in writing, together with any
endorsements required by Lender;
4.8.3. Lender's security interest in all personal property and fixtures
upon the Premises as described in the Security Agreement must have been
duly perfected and has a lien priority in all respects satisfactory to
Lender;
4.8.4 If Lender so requests, an environmental questionnaire and/or
assessment in such form and scope satisfactory to Lender performed by a
firm acceptable to lender has been delivered to Lender, Borrower hereby
agrees to indemnify Lender for any violation of any environmental laws
which concern the Premises;
4.8.5 The Plans and Specifications must have been approved by Lender
and any other persons or agencies whose prior approval is required by
law or any covenants, conditions or restrictions applicable to the
Property, and all insurance policies, executed general contracts and
performance and payment bonds required by Lender must be approved by
Lender and be in full force and effect;
4.8.6 Lender's loan fee must have been paid upon recordation of the
Security Instrument;
4.8.7 Lender shall have received executed copies of all of Borrower's
agreement with the Contractor and the Architect of the construction of
the improvements and approved same;
4.8.8 If Borrower or any accommodation maker, guarantor, or other party
liable for the payment of Borrower's obligations under the Loan
(collectively "Guarantors") is a partnership, corporation, limited
liability company or non-profit association, such parties must have
delivered to Lender one or more opinions of counsel in a form and
content acceptable to Lender stating among other things that such party
is duly organized, validly existing and is in good standing in the
jurisdiction of its incorporation or organization and in each
jurisdiction where its failure to so qualify would have a material
adverse effect on its business, operations or its ability to carry out
its obligation under the Loan Document, and has duly authorized by all
requisite corporate, member/manager or partnership action the
execution, delivery and performance of the Loan Documents;
4.8.9 If Borrower or any Guarantor is a partnership, corporation,
limited liability company or non-profit association, such parties must
have delivered to Lender such certified copies of directors' and
stockholder's resolution, partnership, operating or joint venture
agreements, etc., as maybe necessary, in the Lender's judgment, to
authorize and support the execution and delivery of all documents
contemplated by the Loan;
4.8.10 Borrower has satisfied Lender and the title insurance company
issuing the policy required under Paragraph 4.8.2 that no work has been
commenced prior the recordation of the Security Instrument; and
4.9 Lender shall not be required to make any subsequent disbursement under the
Loan if:
4.9.1 Lender does not receive, at Borrower's expense, a title
endorsement, satisfactory to Lender prior to any disbursement stating
that such disbursement shall have priority over mechanic's or
materialmen's liens or any other intervening or subordinate liens on
the Property.
4.10 Lender shall not be obligated to make its final disburse of Loan proceeds
for the improvements hereto unless and until the following conditions are
satisfied:
4.10.1 The Lender determines that the Improvements have been
substantially completed by the Completion Date in accordance with the
Plans and Specifications. Completion must be verified to the reasonable
satisfaction of Lender;
4.10.2 Borrower has obtained for Lender, at Borrower's expense, any
title insurance endorsements to the title policy required by Lender;
4.10.3 Borrower has obtained and delivered to Lender for its approval
copies of all temporary or permanent certificates of occupancy for any
portion of the Improvements and Lender has approved such certificates.
4.11 At the option of the Lender, each request for an advance shall be submitted
to Lender at least ten (10) business days prior to the date of the requested
advance. All such advances, regardless of to whom made, shall satisfy the
obligations of Lender hereunder and shall be secured by the Security Instrument
and other Loan Documents as fully as if made to Borrower.
4.12 Any waiver by Lender of any condition of disbursement must be expressly
made in writing. The making of a disbursement prior to fulfillment of one or
more conditions therefore shall not be construed as a waiver of such conditions,
and Lender reserves the right to require their fulfillment prior to making any
subsequent disbursements.
5. COVENANTS OF BORROWER. Borrower covenants with and warrants to Lender as
follows:
5.1 Borrower shall provide Lender with a detailed Construction Schedule (which
shall be in such detail as Lender shall require) prior to the execution of this
Agreement and shall meet all deadlines described herein. Borrower shall commence
construction of the Improvements within 10 days from the date of this Agreement.
Borrower shall substantially compete construction by the Completion Date. All
construction work shall be performed in substantial compliance with the approved
Plans and Specifications, any change orders approved by Lender and with this
Agreement. All construction work shall be completed without liens, claims, or
assessments (actual or contingent) asserted against the Premises for any
material, labor or other items furnished in connection therewith (except as such
liens, claims or assessments are insured or bonded to Lender's satisfaction),
and all are in full compliance with all construction, use, building, zoning and
other similar requirements of any governmental jurisdiction. Borrower shall
provide Lender with satisfactory evidence of such compliance upon request by
Lender.
5.2 Borrower agrees that no modification of or amendments to the Plans and
Specifications shall be made without first obtaining the approval in writing of
Lender and all necessary governmental authorities. In addition, Borrower agrees
to deposit with Lender such additional sums or take such action as Lender may
require to ensure payment of the cost of any such changes.
5.3 Borrower shall not, without the prior written consent of Lender, mortgage,
convey, transfer, sell or otherwise dispose of or encumber its interest in the
Property or any part thereof or the income to be derived therefrom.
5.4 Borrower shall comply with and keep in effect all permits and approvals
obtained from any governmental bodies that relate to the lawful construction of
the Improvements. Burrower shall comply with all existing and future laws,
regulations, orders and requirements of all governmental, judicial or legal
authorities having jurisdiction over the Property or Improvements. Borrower
shall comply with all existing or future recorded restrictions affecting the
Property. The Improvements shall be constructed entirely on the Property and
shall not encroach upon or over any known easement or right-of-way, nor upon the
land of others, and when erected shall be wholly within any building restriction
lines.
5.5 Borrower shall furnish from time to time upon request by Lender, in a form
acceptable to Lender, a correct list of the Contractors and all subcontractors
employed in connection with construction of the Improvements and true and
correct copies of all executed contracts and subcontracts. Lender may contact
the Contractor or any subcontractor to verify any facts disclosed in the list,
and all contracts and subcontract relating to construction of the Improvements
must require the disclosure of the listed information to Lender.
5.6 No materials, equipment, fixtures or articles of personal property of
Borrower placed in or on the Improvements shall be purchased or installed under
any security agreement or other agreement where the seller reserves or purports
to reserve title or the right to remove or repossess the items, or the right to
consider such items as personal property after their incorporation in the work
of construction, unless authorized by Lender in writing; provided, however, this
paragraph is not intended to prevent Borrower from granting a purchase money
security interest in computer equipment or software acquired after the date of
this Agreement.
5.7 Lender and its agents and representative shall have the right at any
reasonable time to enter the Premises and inspect he construction of the
Improvements and all plans, specifications, change orders, and other matters
pertaining thereto. Lender shall also have the right to examine, copy and audit
the books, record, accounting data and other documents of Borrower and
Borrower's Contractor relating to the property or construction of the
Improvements. If Lender in good faith determines that any work or materials do
not conform to the approved Plans and Specifications or sound building
practices, or otherwise depart form any other requirements of this Agreement,
Lender may require the work to be stopped and withhold disbursements until the
matter is corrected. In such event, Borrower shall promptly correct the work to
Lender's satisfaction. No such action by Lender shall affect Borrower's
obligation to complete the Improvements of any phase of construction by the
deadlines designated in Paragraph 5.1. Any inspection or examination by Lender
of books and records of Borrower is for the sole purpose of protecting Lender's
collateral and preserving Lender's rights under this Agreement. No default of
Borrower shall be waived by any inspection by Lender, and no inspection by
Lender shall be construed as a representation that there has been or shall be
compliance with the Plans and specifications or that construction is free from
defective materials or workmanship.
5.8 Excluding only such liabilities, claims, damages, costs and expenses that
are solely and proximately caused by willful misconduct or gross negligence by
Lender, Borrower shall indemnify and hold Lender harmless from and against all
liabilities, claims, damages, costs and expenses (including, but not limited to,
legal fees, costs, and expenses) arising out of or resulting from the
construction of the Improvements. Upon demand by Lender, borrower shall defend
any action or proceeding brought against Lender. Lender may elect to conduct its
own defense at the expense of Borrower. The provisions of this Paragraph shall
survive the termination of this Agreement and repayment of the Loan.
5.9 If Borrower is a corporation, limited liability company or partnership, it
shall not amend or modify or permit any amendment or modification of, its
Articles of Incorporation or its partnership or operating agreement during the
term of the Loan without the prior written approval of Lender, which approval
shall not be unreasonably withheld.
5.10 Borrower shall not without the prior written consent of Lender (i) commit
any default under the terms of the Construction Contract (as hereinafter
defined), (ii) waive any of the obligations of the Contractor thereunder, (iii)
do any act which would relieve the Contractor from its obligation to construct
the Improvements according to the Plans and Specifications, or (iv) make any
amendment to the Construction Contract resulting in additional costs which by
themselves or in conjunction with other amendments exceed the Construction
Budget, or (v) take any action which would cause the costs of competing
construction of the Improvements to exceed the undisbursed Loan funds by a
factor of more than ten percent (10.0%).
5.11 Borrower shall not without the prior written consent of Lender (i) commit
any default under the terms of the Architect's Contract (as hereinafter
defined), (ii) waive any of the obligations of Architect thereunder, (iii) do
any act which would relieve the Architect from any obligations thereunder, or
(iv) make an amendment to the Architect's Contract.
5.12 Borrower shall obtain such insurance or evidence of insurance as Lender may
require, including but not limited to, the following:
5.12.1 Title Insurance. An ALTA (or equivalent) mortgagee's title
insurance policy in amount, form and substance and written by a title
insurance company satisfactory to Lender and insuring the lien of the
Security Instrument as a first priority lien on the Premises subject
only to the matters listed in Schedule B to the Security instrument,
the original of which policy shall be promptly delivered to Lender. The
policy shall contain no exceptions except those approved by Lender and
shall include any disbursement protection provisions which Lender may
require.
5.12.2 An all peril builder's risk and liability insurance policy in an
amount, form and substance as Lender may require and with standard
noncontributing mortgage clauses and standard waiver of subrogation
clauses shall be promptly delivered to Lender. This insurance shall be
issued by such companies as shall he approved by Lender, and the
originals of such policies (together with appropriate endorsements
thereto, evidence of payment of premiums thereon and written agreement
by the insurer or insurers therein to give Lender thirty (30) days'
prior written notice of intention to cancel) shall be promptly
delivered to Lender. Such insurance coverage shall be kept in full
force and effect at all times until construction of the Improvements
has been completed.
5.12.3 An all-risk policy of casualty insurance, and such other hazard
insurance as Lender may require, with an agreed amount endorsement,
standard noncontributing mortgage clauses and standard waiver of
subrogation clauses. This insurance shall be in such amounts and forms
including loss payee and other endorsements issued by such companies as
shall be approved by Lender, and the originals of such policies
together with appropriate endorsements thereto, evidence of payment of
premiums thereon and written agreement by the insurer and insurers
therein to give Lender thirty (30) days' prior written notice of
intention to cancel) shall be promptly delivered to Lender. This
insurance shall be kept in full force and effect at all times
thereafter until the Loan has been paid in full.
5.12.4 A certificate from an insurance company indicating that Borrower
and Contractor are covered (at all times until the Promissory Note has
been paid in full) by public liability and workers' compensation
insurance an that Lender is named as additional insured under such
policy to the reasonable satisfaction of Lender.
5.13 Borrower shall cooperate with Lender in obtaining the benefits of any
insurance or other proceeds lawfully or equitably payable to it in connection
with the transactions contemplated hereby and shall pay or reimburse Lender for
any expenses incurred in connection therewith (including the expense of an
independent appraisal in case of for or other casualty affecting the
Improvements).
5.14 Borrower shall use the proceeds of the Loan solely for the purpose of
paying for the cost of constructing the Improvements and the other purposes
described in this Agreement.
5.15 Borrower shall pay all of Lender's out-of-pocket costs (including, but not
limited to, attorney' fees and legal expenses) pertaining to the preparation of
the Loan Documents and the closing and administration of the Loan. Additional
examples of such costs are architectural and other consultant fees, survey
costs, appraisal coats, filing and recording expenses, long distance telephone
charges, hand delivery and telefax charges, overnight and other mall charges,
and similar items.
5.16 If and only if so directed by Lender, Borrower shall promptly erect and
maintain on a suitable site on the Premises a sign approved by Lender regarding
the financing of Improvements to the Property. Borrower shall prevent the
destruction or removal of such sign without the prior written approval of
Lender.
5.17 Borrower shall permit no deviation from the Plans and Specifications which
by itself or in conjunction with other changes or deviations would result in
additional costs in excess of the Construction Budget or cause the cost of
completing construction of the Improvements to at any time exceed the amount of
undisbursed Loan funds by a factor of more than ten percent (10.0%) without the
prior written approval of Lender, which approval shall not be unreasonably
withheld.
5.18 Borrower shall keep and maintain property and accurate books, records and
accounts reflecting all items of income and expense of Borrower in connection
with the Premises and the construction thereon and, upon the request of Lender,
shall make such books, records and amounts immediately available to Lender or
its inspection or independent audit.
5.19 Within ten (10) days after the date of filing same, Borrower shall deliver
to Lender a photocopy of Borrower's annual 10K filing with the Securities and
Exchange Commission, and such records shall he certified as accurate as of the
date of such filing.
5.20 Borrower shall immediately advise Lender in writing if Borrower receives
any written notice form any laborers, subcontractors or materialmen to the
effect that such laborers, subcontractors or materialmen have not been paid when
due for any labor or materials furnished in connection with the construction of
the Improvements.
5.21 Borrower shall, at Borrower's expense, furnish to Lender copies of all
environmental assessments, surveys, certificates, Plans and Specifications,
appraisals, title and other insurance, reports and other documents and
instruments pertaining to the Premises.
5.22 Borrower shall provide promptly to Lender at Borrower's expense such
reports of soil tests of the property as Lender may hereafter request.
5.23 Borrower and Contractor shall not he entitled to store any materials on or
adjacent to the Property without first complying with all requirements which may
be imposed relating to the nature and manner of such storage.
5.24 At the time of the making of any advance hereunder, no Event of Default
shall have occurred, nor shall any circumstance exist which, with the giving of
notice or the passage of time, or both, would constitute an Event of Default.
5.25 Borrower and the Property are and shall be in compliance with all
environmental, health and safety laws, rules and regulations and Borrower alone
is or shall be subject to any liability or obligation for remedial action in the
event of any action thereunder. No investigation or inquiry by any governmental
authority is or shall be pending or, to the knowledge of Borrower, threatened
against Borrower or the Property with respect to any toxic waste, toxic
substance or Hazardous Material as defined herein. No Hazardous Materials are or
shall be located on or under Borrower's Property. Borrower has not caused or
permitted nor shall cause or permit any toxic or hazardous waste or substance to
be stored, transported, or disposed of on or under or released from the
Property. The term "Hazardous Materials" shall mean by substance, material, or
waste which is or becomes regulated by any governmental authority including, but
not limited to: (i) petroleum, (ii) friable or non-friable asbestos; (iii)
polychlorinated biphenyls; (iv) those substances, materials or wastes designated
as a "hazardous substance" pursuant to Section 311 of the Clean Water Act or
listed pursuant to Section 307 of the Clean Water Act or any amendments or
replacements to these statutes; (v) those substances, materials or wastes
defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act or any amendments or replacements to that statute;
(vi) those substances, materials or wastes defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, or any amendments or replacements to that
statute; or (vii) those substances, materials or wastes defined as "hazardous
waste" or a "hazardous substance" pursuant to applicable state law.
5.26 Borrower has not violated and shall not violate any federal, state, county
or municipal statute, regulation or ordinance which may materially and adversely
affect its respective business operations or financial condition or the
Property. No Event of Default (or circumstance which, with response or the
passage of time or both, would constitute an Event of Default) has occurred
under this Agreement or the Loan Documents.
5.27 Additional Covenants of Borrower:
6. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender
that:
6.1 Borrower's social security number or federal taxpayer identification number
is: 000000000
6.2 Borrower's Residency. Borrower is [ ] an individual(s) and a resident of the
State of __________________________ [X] a Corporation duly organized, validly
existing and in good standing under the laws of the State of California and
licensed to conduct business in all of the jurisdictions in which its business
is conducted.
6.3 Borrower's chief executive office, chief place of business, office where its
business records are located, or residence is the address identified on page one
of this Agreement. Borrower's other executive offices, places of business,
locations of its business records, or domiciles are described on Schedule D
attached hereto and incorporated herein by this reference. Borrower shall
immediately advise Lender in writing on any change in or addition to the
foregoing addresses.
6.4 Borrower shall not become a party to any restructuring of its business or
participate in any consolidation, merger, liquidation or dissolution without
providing Lender with thirty-(30) days prior written notice thereof.
6.5 Borrower shall notify Lender of the nature of any intended change of
Borrower's name, or the use of any trade name, and when such change or use shall
become effective.
6.6 Borrower possesses and shall possess good and marketable title to the
Property and any and all Improvements thereon free and clear of all liens and
encumbrances except for the lien for general real estate taxes for the current
calendar year, the lien and security interest belonging to Lender and any
permitted deeds to secure debt, mortgages or deeds of trust and any other
permitted exceptions to title as described in Schedule B hereto.
6.7 All tax returns and reports of the Borrower required by law to be filed have
been duly filed, and all taxes, assessments, and other governmental charges upon
Borrower or upon its properties or assets or income which are due and payable
have been paid and shall continue to be so paid.
6.8 All financial statements previously delivered to Lender by Borrower and the
Guarantors are true and correct in all respects, have been prepared in
accordance with generally accepted accounting principles and accurately
represent the financial condition of Borrower and the Guarantors as of the
respective dates thereof. No materially adverse change has occurred in the
financial condition reflected in any such financial statements since the
respective dates thereof, and no additional borrowings have been made by
Borrower since that date thereof other than this Loan.
6.9 Borrower and Contractor have entered into a contract ("Construction
Contract") whereby Contractor has agreed to construct the Improvements in
accordance with the Plans and Specifications and to pay for all labor and
materials used in connection with such construction, and (I) Lender has been
provided a copy of the Construction Contract and any amendments or modifications
thereto, (ii) there are in existence no defaults or grounds for default
thereunder, (iii) the Construction Contract is in full force and effect, and
(iv) Contractor has obtained all necessary building permits.
6.10 Borrower and Architect have entered into a contract ("Architect's
Contract") relating to the design, construction, supervision of work on and
inspection of the Improvements, and (I) Lender has been provided with a copy of
the Architect's Contract and any amendments or modifications thereto, (ii) there
are in existence no default or grounds for default thereunder, and (iii) the
Architect's Contract in full force and effect.
6.11 The Loan Documents are in all respects the legal, valid, binding and
enforceable obligation of the Borrower in accordance with their respective terms
and conditions, and grant Lender a duly perfected first lien on and security
interest in the Premises.
6.12 No chattel mortgage, xxxx of sale, security agreement, financing statement
or other title retention agreement (except those executed in favor of Lender)
has been or shall be executed with respect to any personal property, chattel or
fixture used in conjunction with the construction, operation or maintenance of
the Improvements without the prior written consent of Lender; provided, however,
the consent of Lender shall not be required for Borrower to grant a purchase
money security interest in computer equipment or software acquired after the
date of this Agreement.
6.13 All public utility services necessary for the construction of the
Improvements and the operation thereof for their intended purposes are available
within boundaries of the Property, including water supply, storm and sanitary
sewer facilities, and natural gas, electric and telephone facilities.
6.14 The Premises are not now damaged or injured as a result of any fire,
explosion, accident, flood or other casualty.
6.15 Any brokerage commissions due in connection with the purchase by Borrower
of the Property have been paid in full, and any such commissions coming due in
the future shall be promptly paid by Borrower. Borrower shall indemnity and hold
Lender harmless from any liability, claim or loss, including attorney's fees and
legal expenses, arising by reason of the claim of any person for any such
brokerage commissions. This provision shall survive the repayment of the Loan
made in connection herewith and shall continue in full force and effect so long
as the possibility of such liability, claim or loss exists.
6.16 Notwithstanding any provision of any document or agreement pursuant to
which Borrower is formed or any provision of any other agreement to which
Borrower may be or become a party, until all of Borrower's indebtedness to
Lender under the Loan Documents has been paid in full, Borrower shall make no
disbursement of funds from the rental or sale of any part of the Premises to any
of Borrower's officers, stockholders or similar persons or to any other person,
whether by way of debt repayment, return of capital, dividend, distribution of
income or otherwise, without the prior written consent of Lender.
6.17 Borrower has the right and is duly authorized to execute, enter into and
perform its obligations under the Construction Contract, Architect's Contract,
the Agreement and the other Loan Documents. Borrower's execution and performance
of its obligations under the Construction Contract, this Agreement and the other
Loan Documents does not and shall not conflict with the provisions of any
statute, regulation, ordinance, rule of law, contract or other agreement which
may now or hereafter be binding on Borrower.
6.18 No action or proceeding is or shall be pending or threatened against
Borrower. No action or proceeding is or shall be pending or threatened that
might result in any material or adverse change in Borrower's business operations
or financial condition or materially affect the Premises.
6.19 Borrower has not violated and shall not violate any applicable federal,
state, county or municipal statute, regulation or zoning or other ordinance, any
environmental laws, or any land use laws which materially and adversely affect
its business operations or financial condition or the Premises.
6.20 Borrower represents that construction of the Improvements to the Premises
has not yet begun as of the effective date of this Agreement.
6.21 The foregoing representations and warranties will be true at the date of
the first disbursement and at the dates of all subsequent disbursements of the
Loan proceeds.
7. EVENT OF DEFAULT. An Event of Default shall occur under this Agreement and
the other Loan Documents if:
7.1 Borrower or any Guarantor falls to pay any amount under this Agreement or
the other Loan Documents or any other indebtedness to Lender when due;
7.2 Borrower or any Guarantor fails to perform any obligation or breaches any
warranty or covenant to Lender contained in this Agreement, the other Loan
Documents, or any other present or future agreement;
7.3 Borrower or any Guarantor provides or causes any false or misleading
signature or representation or warranty to be provided to Lender;
7.4 Borrower or any Guarantor allows or causes the Premises to be damaged,
destroyed, lost or stolen in any material respect;
7.5 Construction of the Improvements is halted prior to the Completion Date for
any period of twenty (20) consecutive days for any cause;
7.6 Construction of the Improvements is abandoned or is not completed on or
before the Completion Date for any cause;
7.7 Any lien for labor, services, materials, or otherwise is filed against the
Premises;
7.8 Lender believes in good faith that the financial condition of Borrower or
any Guarantor has undergone a material adverse change or that the prospects for
the successful and profitable sale of the Improvements upon completion have
materially declined;
7.9 Without first having obtained the written consent of Lender, Burrower
transfers, sells, conveys, encumbers or assigns all or any portion of the
Premises;
7.10 If Borrower is a corporation, partnership, limited liability company or
joint venture, the controlling interest in Borrower or any constituent entity
thereof is transferred, sold or assigned without the prior written approval of
Lender;
7.11 If the Improvements are partially or totally damaged or destroyed by fire
or any other cause and Lender believes in good faith that the Improvements shall
not be completed on or before the Completion Date;
7.12 Any Guarantor seeks to revoke, terminate or otherwise limit its liability
to Lender;
7.13 Any litigation is filed against Borrower or any Guarantor with respect to
the Premises which, if adversely determined, could materially impair their
ability to perform their respective obligations under the Loan Documents or
impair the value of the Premises;
7.14 Borrower or any Guarantor permits the entry or service of any garnishment,
judgment, tax levy, attachment or lien against them or any Guarantor, or any of
their property;
7.15 Borrower or any Guarantor dies, becomes legally incompetent, is dissolved
or terminated, ceases to operate its business, becomes insolvent, makes an
assignment for the benefit of creditors, or becomes the subject of any
bankruptcy, insolvency or debtor rehabilitation.
7.16 Borrower or any Guarantor causes Lender to deem itself insecure in good
faith for any reason; or
7.17 Lender reasonably believes that one or more Events of Default described in
this Paragraph 7 have occurred and Borrower, after Lender's request, fails to
provide evidence reasonably satisfactory to Lender that such Event or Events of
Default have not in fact occurred.
8. RIGHTS OF LENDER ON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default under this Agreement, Lender shall be entitled to exercise one or more
of the following remedies without notice or demand:
8.1 To exercise any of the rights and remedies described in this Agreement or
the other Loan Documents;
8.2 To declare the principal amount plus accrued interest under this Note and
all other present and future obligations of Borrower immediately due and payable
in full;
8.3 To terminate the agreements of the Lender to extend credit of any kind
hereunder, whereupon the commitment and obligation of the Lender to make
disbursements or make loans hereunder shall terminate;
8.4 To enter into possession of the Premises and take all actions necessary in
its judgement to complete construction of the Improvements in accordance with
the Plans and Specifications. Lender shall also have the right to make changes
in the Plans and Specifications, work or materials as it may deem appropriate
and to enter into, modify or terminate any contractual arrangements, subject to
Lender's right at any time to discontinue work without liability. Such action
shall be taken at the sole risk, cost and expense of Borrower. Lender shall not
assume liability to Borrower or any other person or entity for completing the
Improvements or for the manner of quality of construction of the Improvements.
Borrower irrevocably appoints Lender as its attorney-in-fact, with full power of
substitution, to complete the Improvements, at the option of Lender, in
Borrower's name. Lender shall have the right to disburse any portion of the Loan
not previously disbursed, and to use any other funds of Borrower, including any
funds held in escrow accounts, to the extent necessary or desirable to complete
or finish construction of the Improvements and to pay, compromise or settle all
existing or future bills and claims that are or may be or become liens against
the Premises, or may be necessary or desirable for the completion of the
Improvements or the clearance of title of the Premises. All sums expended by
Lender in completing construction shall be considered to have been disbursed to
the Borrower, and Borrower and all Guarantors shall be liable thereof. Such sums
shall be secured by the Security Instrument, Security Agreement and any other
documents securing the Loan. In the event such sums exceed the principal amount
of the Promissory Note, the amount of the excess funds shall be considered to be
an additional Loan to Borrower bearing interest at the rate provided in the
Promissory Note and shall be secured by the Security Instrument, Security
Agreement and any other documents securing the Loan; and
8.5 To exercise all other rights available to Lender under any other written
agreement or law or in equity.
Lender's rights are cumulative and may be exercised together, separately, and in
any order. Lender may, at its option, appoint a receiver without bond, without
first bringing suit on Borrower's obligations and without meeting any statutory
conditions regarding receivers, it being intended that Lender shall have this
contractual right to appoint a receiver.
9. ASSIGNMENT OF CONTRACTS TO LENDER. Borrower hereby conditionally assigns to
Lender all of its interest in and to the Plans and Specifications along with all
studies, data and drawings prepared by or for Borrower and the contracts and
agreements relating to the Plans and Specifications or to the construction of
the Improvements. Lender shall not assume any obligations under such contracts
and agreements unless it agrees otherwise in writing. Lender shall have the
right to take over and use at any time the labor, materials, supplies and
equipment contracted for, by or on behalf of Borrower, including such equipment
and supplies that have theretofore been delivered to the Premises or stored in
any facility for incorporation into the Improvements, all in the sole and
absolute discretion of the Lender.
10. ACTIONS. Lender shall have the right, but not the obligation, to commence,
appear in and defend any action or proceeding which might affect the Premises or
its rights, duties or liabilities under this Agreement or the other Loan
Documents. Borrower shall reimburse Lender upon demand for Lender's
out-of-pocket costs, expenses and legal fees and disbursements incurred in those
actions or proceedings.
11. APPLICATION OF PAYMENTS. Whether or not a default has occurred under this
Agreement, all payments made by or on behalf of Borrower and all credits due to
Borrower from the disposition of the Premises or otherwise may be applied
against the amounts paid by Lender (including attorneys' fees and legal
expenses) in connection with the exercise of its rights or remedies described in
the Agreement and any interest thereon and then to the payment of the Borrower's
Obligations to Lender under the Loan Documents in whatever order Lender chooses.
12. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Borrower shall reimburse Lender
for all amounts (including attorneys' fees and legal expenses) expended by
Lender in the performance of any action required to be taken by Borrower or the
exercise of any right or remedy belonging to Lender under this Agreement,
together with interest thereon at the lower of the highest rate described in any
promissory note or credit agreement executed by Borrower or the highest rate
allowed by law from the date of payment until the date of reimbursement. These
sums shall be payable upon demand and shall be secured by the liens and security
interests described in the Agreement and the other Loan Documents.
13. TERMINATION. This Agreement shall survive the making of the Loan and shall
remain in full force and effect until Lender provides Borrower with written
notice of the termination hereof.
14. ASSIGNMENT. Borrower shall not be entitled to assign any of its rights,
remedies or obligations described in this Agreement without the prior written
consent of Lender which may be withheld by Lender in its sole discretion. Lender
shall be entitled to assign some or all of its rights and remedies described in
this Agreement without notice to or any third party in any manner.
15. MODIFICATION AND WAIVER. The modification or waiver of any of Borrower's
obligations or Lender's rights under this Agreement or the other Loan Documents
must be contained in a writing signed by Lender. Lender may perform any of
Borrower's obligations or delay or fail to exercise any of its rights without
causing a waiver of those obligations or rights. A waiver on one occasion shall
not constitute a waiver on any other occasion. Borrower's obligations under this
Agreement and the other Loan Documents shall not be affected if Lender amends,
compromises, exchanges, fails to exercise, impairs or releases any other
obligations belonging to any borrower or Guarantor or any of its rights against
any borrower, Guarantor or collateral.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of Borrower and Lender and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, heirs, legatees,
and devisees.
17. NOTICE. Any notice or other communication to be provided under this
Agreement shall be in writing and mailed to the parties at the addresses
described in this Agreement or such other address as the parties may designate
in writing form time to time.
18. SEVERABILITY. If any provision of this Agreement violates the law or is
unenforceable, the rest of the Agreement shall remain valid.
19. APPLICABLE LAW. This Agreement shall be governed by the laws of the state
indicated in Lender's address. Unless applicable law provides otherwise,
Borrower consents to the jurisdiction of any court selected by Lender in its
discretion located in that state.
20. COLLECTION COSTS. To the extent permitted by law, Borrower agrees to pay all
costs of collection, including attorney's fees of 15 percent of the principal
and interest owing on the indebtedness if collected by law or through an
attorney at law.
21. MISCELLANEOUS. Borrower and Lender agree that time is of the essence.
Borrower waives presentment, demand for payment, notice of dishonor and protest
except as required by law. If there is more than one Borrower, their obligations
shall be joint and several. This Agreement represents the complete and
integrated understanding between Borrower and Lender regarding the terms hereof.
22. RIGHTS OF THIRD PARTIES. All conditions of the obligations of Lender
hereunder, including the obligation to make advances, are imposed solely and
exclusively for the benefit of Lender and its successors and assigns. No other
person shall have standing to require satisfaction of such conditions in
accordance with their terms or be entitled to assume that Lender will require
strict compliance with any or all thereof. No other person shall, under any
circumstance, be deemed to be a beneficiary of such conditions, any or all of
which may be freely waived in whole or in part by Lender at any time in Lender's
sole discretion. Lender makes no representations and assumes no obligations to
Borrower or to any third party concerning the quality of the construction by
Borrower of the Improvements or the absence therefrom of defects. In this
connection Borrower agrees to indemnify Lender from any liability, claim or loss
resulting form the disbursement of the loan proceeds or from the condition of
the Premises, whether related to the quality of construction or otherwise and
whether arising during or after the term of the Loan. This provision shall
survive the repayment of the Loan and shall continue in full force and effect so
long as the possibility of such liability, claim or loss exists.
23. JURY TRIAL WAIVER. BORROWER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS AGREEMENT.
24. ADDITIONAL TERMS:
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN ANY OTHER SECTION OF THIS
AGREEMENT, THE FOLLOWING SHALL NOT BE CONSIDERED "EVENTS OF DEFAULT", LENDER'S
CONSENT WILL NOT BE REQUIRED AND NO FEE SHALL BE IMPOSED FOR ANY OF THE
FOLLOWING:
(a) A TRANSFER OF NOT MORE THAN 50% IN THE AGGREGATE OF THE SHARES
OF THE BORROWER;
(b) THE TRANSFER OF SHARES UPON THE DEATH OF A SHAREHOLDER;
(c) THE TRANSFER OF SHARES FOR ESTATE PLANNING PURPOSES INTO OR
FROM
(d) THE TRANSFER OF SHARES PURSUANT TO AND FOLLOWING BORROWER'S
EQUITY SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED
PROVIDED, HOWEVER, THAT IN THE EVENT OF A TRANSFER OF SHARES PURSUANT TO (A),
(B) SHALL REMAIN A MEMBER OF THE BOARD OF DIRECTORS AND EXECUTIVE OFFICER OF
SUCCESSOR TO BORROWER.
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN ANY OTHER SECTION OF THIS AG???
SECURITY INTEREST SHALL NOT ACCRUE IN OR ATTACH TO THE FOLLOWING DEPOSIT ACCOUNT
THIRD PARTY SERVICING ACCOUNTS THAT BORROWER MAY OPEN OR MAINTAIN WITH LENDER:
Account Name Account Number
------------ --------------
American National Insurance Company 2000291282
American NatIonal Insurance Company 2004000002
IL Annuity and Insurance Company 2000283289
IL Annuity and Insurance Company 2000291308
Transamerica Life Insurance 2000291290
Transamerica Life Insurance 2000283305
Legacy Marketing Group 2000283271
Investors Insurance Corporation 2000307179
Xxxx Xxxxxxx Variable Life Insurance Company 2000299707
--------------------------------------------------------------------------------
BORROWER ACKNOWLEDGES THAT BORROWER HAS READ, UNDERSTANDS AND AGREES TO THE
CONDITIONS OF THIS AGREEMENT.
Dated: October 27, 2003 Lender: SUNTRUST BANK
By: /s/ XXXXXX XXXXXX
--------------------------------
XXXXXX XXXXXX, VICE PRESIDENT
Borrower: XXXXX HOLDING CORPORATION Borrower:
/s/ XXXXX XXXXXX, CFO
----------------------------------- ------------------------------------
XXXXX XXXXXX, CFO
XXXXX HOLDING CORPORATION Borrower:
/s/ XXXXXXXXX X'XXXXXX
----------------------------------- ------------------------------------
Executive Assistant
[CORPORATE SEAL]
CONSTRUCTION LOAN AGREEMENT
SCHEDULE A
All that tract or parcel of land situated, lying and being in Land Lots 55, 56
and 90 of the 0xx Xxxxxxxx and 4th Section of Xxxxx County, Georgia, and being
in the Third Xxxx of the City of Rome, and being more particularly described as
follows:
START at a 1/2 inch iron pin found at the intersection of the west land lot line
of said Land Lot 56 with the northerly right of way of Technology Parkway (100
foot right of way); run thence South 87 degrees 11 minutes 55 seconds East,
along the northerly right of way line of Technology Parkway, a distance of
1584.9 feet to a 5/8-inch iron pin placed and being the POINT OF BEGINNING;
thence from said Point of Beginning running North 02 degrees 45 minutes 20
seconds East a distance of 442.71 feet to a 5/8-inch iron pin placed; thence
South 85 degrees 54 minutes 20 seconds East a distance of 706.93 feet to a
5/8-inch iron pin placed; thence running Easterly and Southerly, along the
southerly and westerly line of a proposed road, an arc distance of 664.53 feet
(a chord distance of South 28 degrees 53 minutes 20 seconds East 560.15 feet) to
a 5/8 inch iron pin placed; thence South 28 degrees 07 minutes 40 seconds West,
along the westerly line of said proposed roadway, a distance of 50.59 feet to a
5/8-inch iron pin placed, which point is also the intersection with the
northerly right of way line of Technology Parkway; thence running Westerly,
along the northerly right of way line of Technology Parkway, an arc distance of
471.42 feet (a chord distance of North 75 degrees 29 minutes 25 seconds West
468.19 feet) to a 5/8-inch iron pin placed; thence North 87 degrees 08 minutes
00 seconds West, along the northerly right of way line of Technology Parkway, a
distance of 520.57 feet to a 5/8-inch iron pin place which point is the Point of
Beginning. Being the same property shown as that certain plat of survey prepared
by Xxxxxxxx, Xxxxxxxx and Xxxxxx, Inc. dated January 30, 2003, and last revised
April 14, 2003, and recorded in Plat Book 28, Page 242, Xxxxx County Deed
Records.
This conveyance is subject to all easements and all restrictions of record,
including but not limited to that certain declaration of protective covenants
and restrictions for Technology Parkway dated June 28, 2000 and recorded in Deed
Book 1593, Page 944 and all matters as disclosed by that certain plat of survey
prepared by Xxxxxxxx, Xxxxxxxx and Xxxxxx, Inc. dated January 30, 2003, and last
revised April 14, 2003, and recorded in Plat Book 28, Page 242 and any and all
zoning ordinances effecting the property.
SCHEDULE B
1. Easement to Georgia Power Company dated December 15, 1952,
recorded in Deed Book 255, Page 109, Xxxxx County Deed
Records.
2. Declaration of Restrictive Covenants dated April 4, 1994,
recorded in Deed Book 1260, Page 396, Xxxxx County Deed
Records, and Corrective Declaration of Restrictive Covenants
dated September 3, 1996, recorded in Deed Book 1352, Page 135,
Xxxxx County Deed Records establishes wetlands buffers, and
the same affects and restricts the use of the property
identified as Tract 4 therein.
3. Declaration of Protective Covenants and Restrictions for
Technology Parkway dated June 28, 2002, recorded July 20, 2002
in Deed Book 1593, Page 944, Xxxxx County Deed Records.
4. Right of Way Deed by Xxxxx College, Inc. to the City of Rome,
Georgia dated April 22, 2003, recorded in Deed Book 1776, Page
1106, Xxxxx County Deed Records, conveying 2.33 acres as shown
on that certain survey for the City of Rome, Georgia by
Xxxxxxxx, Xxxxxxxx & Xxxxxx, Inc. and certified to by Xxxxxx
X. Xxxx, Georgia Registered Land Surveyor No. 1498.
5. Ten (10') foot wide utility easement and other matters
disclosed on recorded plat of subdivision in Plat Book 28,
Page 242, Xxxxx County Deed Records.
6. Thirty (30') foot wide easement dated July 16, 2003, from The
Xxxxx College, Inc. to Georgia Power Company to construct,
operate and maintain continuously poles, wires and
transformers along Technology Parkway, recorded September 8,
2003 in Deed Book 1822, Page 175, Xxxxx County Deed Records.
7. Thirty (30') foot wide easement dated July 16, 2003, from Rome
Xxxxx County Development Authority to Georgia Power Company to
construct, operate and maintain continuously poles, wires and
transformers along Legacy Drive, recorded September 8, 2003 in
Deed Book 1822, Page 178, Xxxxx County Deed Records.
SCHEDULE C
Construction of a 35,000 square foot office building in on Technology
Parkway in Xxxxx Corporate Office Park in Rome, Georgia.
SCHEDULE D
000 Xxxx Xxxxxx Xxxxxx
Xxxx, Xxxxxxx 00000
EXHIBIT 1
DRAW REQUEST
_________________________________
(Date)
TO: ________________________
________________________
________________________
You are hereby requested and authorized to pay the sum of
$_________________________ to ______________________________ as a disbursement
of loan proceeds under our Construction Loan Agreement with you dated
______________________________. Such funds are to be applied to pay for labor
and materials furnished under our Construction Contract with
_________________________________________________ dated _______________________.
The undersigned hereby CERTIFIES that: (i) work is progressing on schedule
and in accordance with the Construction Contract and the Plans, (ii) there is no
Event of Default under the Construction Loan Agreement or the Construction
Contract, and (iii) there are sufficient undisbursed loan proceeds to complete
construction in accordance with the Construction Contract and the Plans.
BORROWER: XXXXX HOLDING CORP. BORROWER:
By:________________________________ ____________________________________
Title:_____________________________
BORROWER: BORROWER:
___________________________________ ____________________________________
BORROWER: BORROWER:
___________________________________ ____________________________________
FOR COMPELETION BY CONTRACTOR
_________________________________
(Date)
The undersigned, as Contractor under the Construction Contract with
Borrowers signing above, does hereby, for good and valuable consideration, the
receipt and sufficiency of which are acknowledged, waive and release any and all
mechanic's and materialmen's liens which the undersigned has or to which the
undersigned may be entitled by reason of materials furnished or labor performed
to ______________________________________________________________________, under
Construction Contract, and the undersigned does hereby CERTIFY that: (i) all
persons, firms and corporations which have furnished material or labor with
respect to this Draw Request, (ii) to date the undersigned has received
(exclusive of the above amount requested by the Borrowers) the total sum of
$__________________________________ under the Construction Contract.
_________________________________
(Name of Contractor)
_________________________________
(Signature)
_________________________________
(Title if Contractor is
Corporation, Limited Liability
Company, or Partnership)
