CONSTRUCTION LOAN AGREEMENT
THIS CONSTRUCTION LOAN AGREEMENT ("Agreement") is made by
NationsBank of Florida, N.A. ("Lender"), and the Borrower
identified in Exhibit "B" ("Borrower"), who agree as follows:
ARTICLE 1. - THE LOAN
1.1 General Information and Purpose. The Basic
Information attached as Exhibit "B" and all other exhibits,
which are made a part of this Agreement and incorporated
herein by reference, contain definitions of certain terms used
herein, and also contain other terms, provisions, and
conditions applicable to the Loan. The proceeds of the Loan
shall be used by Borrower to pay the cost of the construction
of the Improvements on the Land, and other costs regarding the
Property if and to the extent that such costs are specifically
provided for in the Loan Allocation column in the Budget. The
Loan Documents, which must be in form, detail and substance
satisfactory to Lender, evidence the agreements of Borrower
and Lender with respect to the Loan. Borrower shall comply
with all Loan Documents.
1.2 Commitment to Lend. Lender agrees to make the Loan
to Borrower in advances subject to and in accordance with
Exhibit "F" and the other terms and conditions of this
Agreement. Lender's commitment to lend shall expire and
terminate on the date when the Final Advance for Improvements
(as defined herein) is made; automatically if the Loan is
prepaid in full; and at Lender's option in the event of a
Default. The Loan is not revolving. An amount repaid may not
be reborrowed.
1.3 Budget. The Loan funds are allocated for the costs
of the Project shown in the Loan Allocation column in the
Budget attached as Exhibit "D". The Budget has been prepared
by Borrower and Borrower represents to Lender that it includes
all costs and expenses (the "Aggregate Cost") incident to the
Loan and the Project, through the maturity date of the Loan,
after taking into account the requirements of this Agreement.
Lender shall not be required to (a) make any advance for any
cost not set forth in the Budget, (b) make any advance for any
line item in the Budget that, when added to all prior advances
for that line item, would exceed the lesser of i) the actual
cost incurred by Borrower for such line item or ii) the sum
allocated in the Loan Allocation column in the Budget for that
line item, or (c) make any advance for interest on the Loan
after commencement of operations in the Improvements if and to
the extent that there is sufficient net operating income from
the Property to cover any such advances. Lender may make
advances allocated to line items in the Budget for other
purposes or in different proportions as Lender in its sole
discretion deems necessary or advisable; provided, however,
that if Lender is requested by Borrower to make a reallocation
of a hard cost item which would require contractor and lienor
notices under Section 713.3471(2), Florida Statutes, written
notice from the owner to the applicable contractor and all
required lienors, in compliance with Section 713.3471(2),
Florida Statutes, and countersigned by the applicable
contractor and any lienors who have provided notices to owner
shall be given prior to any such reallocation. Without prior
written approval of Lender, Borrower shall not reallocate Loan
funds from one Budget line item to another or otherwise amend
the Budget.
1.4 Borrower's Deposit. If at any time Lender
determines that the sum of (i) the unadvanced portion of the
Loan to which Borrower is entitled, plus (ii) the amounts of
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Construction Loan Agreement
the Aggregate Cost which are scheduled to be paid by Borrower
from other funds which are available, set aside and committed,
to Lender's satisfaction, is or will be insufficient to pay
the unpaid actual Aggregate Cost, Borrower shall, within seven
(7) days after written notice from Lender, deposit with Lender
the amount of the deficiency ("Borrower's Deposit") which
Borrower's Deposit shallbe deposited in an interest-bearing
account with interest earned thereon to be part of the
Borrower's Deposit. Such Borrower's Deposit is hereby pledged
as additional collateral on the Loan, and Borrower hereby
grants and conveys to Lender a security interest in all funds
so deposited with Lender, as additional collateral on the
Loan. Upon a Default, Lender may (but shall have no
obligation to) apply all or any part of the Borrower's Deposit
against the unpaid Indebtedness in such order as Lender
determines. As long as the Loan is current and not in
default, Borrower shall have the right to elect whether the
Borrower's Deposit shall be expended before any further Loan
disbursements are made or in the alternative, whether said
Borrower's Deposit shall continue to be held in the interest-
bearing account until all Loan disbursements have been made by
Lender and the Borrower's Deposit is necessary to complete the
construction of the Project.
ARTICLE 2. - ADDITIONAL COVENANTS AND AGREEMENTS
2.1 Plans. Borrower assumes full responsibility for the
compliance of the Plans and the Property with all laws,
governmental requirements and sound building and engineering
practices. No construction shall be undertaken on the Land
except as shown in the Plans. No plans or specifications, or
any changes thereto except Permitted Changes, shall be
included as part of the Plans until consented to by Lender,
and approved by Construction Consultant, all applicable
governmental authorities, as may be necessary, and all parties
required under the Loan Documents. As to changes to the Plans
which are not Permitted Changes, Lender shall have fifteen
(15) days from the receipt of the requested change in which to
review same and communicate to Borrower its approval or
disapproval of the requested change.
2.2 Contracts. Without Lender's prior written approval
as to parties, terms, and all other matters, Borrower shall
not (a) enter into any contract for the performance of any
work or the supplying of any labor, materials, or services for
the design or construction of the Improvements which is in
excess of $50,000.00 (and to the extent such contract is less
than $50,000.00, Borrower shall promptly provide a copy of
same to Lender after such contract is fully executed), (b)
enter into any management, leasing, maintenance or other
contract pertaining to the Property not described in clause
(a) preceding that is not unconditionally terminable by
Borrower or any successor owner without penalty or payment on
not more than thirty (30) days notice to the other party
thereunder, or (c) modify, amend, or terminate any such
contracts. All such contracts shall provide that all liens of
the applicable contractor, architect, supplier, surveyor or
other party and any right to remove removable Improvements are
subordinate to Lender's rights, and shall require all
subcontracts and purchase orders to contain a provision
subordinating the subcontractors' and mechanics' and
materialmen's liens and any right to remove removable
Improvements to Lender's rights, and shall provide that no
change order shall be effective without the prior written
consent of Lender except for Permitted Changes. Borrower
shall not default under any contract, Borrower shall not
permit any contract to terminate by reason of any failure of
Borrower to perform thereunder, and Borrower shall promptly
notify Lender of any material default thereunder. Borrower
will deliver to Lender, upon request of Lender, the names of
persons or entities with whom each contractor has contracted
or intends to contract for the construction of the
Improvements or for the furnishing of labor or materials
therefor, but only to the extent such information is supplied
to Borrower by the Contractor.
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Construction Loan Agreement 2
2.3 Construction of the Improvements. Borrower shall
commence construction of the Improvements within 30 days of
the Loan closing date, and shall prosecute the construction of
the Improvements with diligence and continuity, in a good and
workmanlike manner, and in accordance with sound building and
engineering practices, all applicable laws and governmental
requirements, the Loan Documents, and the Plans. Borrower
shall not permit cessation of work for a period in excess of
fifteen (15) days (whether or not consecutive), except for
Excusable Delays. Borrower shall complete construction of the
Improvements, and shall obtain a permanent unconditional
certificate of occupancy and all other permits, licenses, and
approvals for the occupancy, use and operation of the
Improvements from all applicable governmental authorities on
or before the Completion Date, free and clear of all liens
except the Loan Documents. Borrower shall correct promptly
(a) any material defect in the Improvements, (b) any material
departure from the Plans, law, or governmental requirements,
or (c) any encroachment by any Improvements or structure on
any building setback line, easement, property line or
restricted area.
2.4 Changes. Without Lender's prior written consent,
Borrower shall not materially change or modify the Plans in
any manner which changes the general design, materials, size,
quality of construction or structural integrity of the
Improvements as approved by Lender, agree to any change order,
or allow any extras to any contractor or any subcontractor,
except that Borrower may make the Permitted Changes if: (a)
Borrower notifies Lender in writing of the change or extra
with appropriate supporting documentation and information; (b)
Borrower obtains the approval of the applicable contractor,
Borrower's architect, and all sureties; (c) the structural
integrity, quality and standard of workmanship of the
Improvements is not impaired; (d) no substantial change in
architectural appearance is affected; (e) no default in any
obligation to any person or violation of any law or
governmental requirement would result from such change or
extra; (f) Borrower complies with Section 1.4 of this
Agreement to cover any excess cost resulting from the change
or extra; (g) completion of the Improvements by the
Completion Date will not be affected; and (h) all requirements
of Section 713.3471(2), Florida Statutes, have been fully
satisfied. Lender shall not be obligated to review a proposed
change which Lender is entitled to approve unless it has
received all documents necessary to review such change, such
as the change order, cost estimates, plans and specifications,
and evidence that all approvals by all applicable parties have
been obtained. As to changes which are not Permitted Changes,
Lender shall have five (5) days from the receipt of any
requested change order which does not involve a change in the
Plans in which to review same and communicate to Borrower its
approval or disapproval of the requested change order.
2.5 Storage of Materials. Borrower shall cause all
materials supplied for, or intended to be utilized in the
construction of the Improvements, but not yet affixed to or
incorporated into the Improvements on the Land, to be stored
on the Land with adequate safeguards as required by Lender to
prevent loss, theft, damage or commingling with other
materials or projects. Borrower shall not purchase or order
materials for delivery more than forty-five (45) days prior to
the scheduled incorporation of such materials into the
Improvements.
2.6 Inspection. Lender may enter upon the Property to
inspect the Property and any materials at any reasonable time.
Borrower will furnish to Lender at any time for inspection and
copying all Plans, shop drawings, specifications, books and
records, and other documents and information required by
Lender.
2.7 Notice to Lender. Borrower shall promptly notify
Lender in writing of any of the following events, specifying
in each case the action Borrower has taken or will take with
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Construction Loan Agreement 3
respect thereto: (a) any violation of any law or governmental
requirement; (b) any litigation, arbitration or governmental
investigation or proceeding instituted or threatened against
Borrower or any Guarantor or the Property or any material
development therein; (c) any actual or threatened condemnation
of any portion of the Property, any negotiations with respect
to any such taking, or any loss of or substantial damage to
the Property; (d) any labor controversy pending or threatened
against Borrower or any contractor or any material development
in any labor controversy; (e) any notice received by Borrower
with respect to the cancellation, alteration or non-renewal of
any insurance coverage maintained with respect to the
Property; or (f) any failure by Borrower or any contractor to
perform any material obligation under any construction
contract, any event or condition which would permit
termination of a construction contract or suspension of work
thereunder, or any notice given by Borrower or any contractor
with respect to any of the foregoing.
2.8 Assignment of Contracts and Plans. As additional
security for the payment of the Loan, Borrower hereby
transfers and assigns to Lender all of Borrower's rights and
interest, but not its liability, in, under, and to all
construction, architectural and design contracts, and the
Plans, and agrees that all of the same are covered by the
security agreement provisions of the Mortgage. Borrower
represents and warrants that the copy of any contract
furnished or to be furnished to Lender is and shall be a true
and complete copy thereof, that the copies of the Plans
delivered to Lender are and shall be true and complete copies
of the Plans, that there have been no modifications thereof
which are not fully set forth in the copies delivered, and
that Borrower's interest therein is not subject to any claim,
setoff, or encumbrance. Neither this assignment nor any
action by Lender shall constitute an assumption by Lender of
any obligation under any contract or with respect to the
Plans, and Borrower shall continue to be liable for all
obligations of Borrower with respect thereto, Borrower hereby
agreeing to perform all of its obligations under any contract.
Lender shall have the right at any time (but shall have no
obligation) to take in its name or in the name of Borrower
such action Lender may determine necessary to cure any default
under any contract or with respect to the Plans or to protect
the rights of Borrower or Lender with respect thereto. Lender
shall incur no liability if any action so taken by it or on
its behalf shall prove to be inadequate or invalid. Borrower
indemnifies and holds Lender harmless against and from any
loss, cost, liability or expense (including, but not limited
to, attorneys' fees and expenses) incurred in connection with
Borrower's failure to perform such contracts or any action
taken by Lender. Lender may use the Plans for any purpose
relating to the Improvements. Borrower irrevocably
constitutes and appoints Lender as Borrower's
attorney-in-fact, which power of attorney shall be irrevocable
and coupled with an interest, in Borrower's name or in
Lender's name to enforce all rights of Borrower under any
contract or with respect to the Plans.
2.9 Advertising by Lender. At Lender's request and
expense, Borrower shall place upon the Property at a mutually
acceptable location a sign announcing that financing is being
provided by Lender. Also, Lender shall have the right to
secure printed publicity through newspapers and other media
concerning the Property and its financing. All publicity
referenced herein shall require Borrower's prior approval,
which shall not be unreasonably withheld.
2.10 Financial Statements. Borrower shall deliver to
Lender the Financial Statements and other statements and
information at the times and for the periods described in the
Basic Information, and as otherwise required by any other Loan
Documents.
2.11 Appraisal. Lender may obtain at Borrower's expense
upon request an appraisal of any part of the Property prepared
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in accordance with written instructions from Lender by a
third-party appraiser engaged directly by Lender. Each such
appraiser and appraisal shall be satisfactory to Lender
(including satisfaction of applicable regulatory
requirements). The cost of each such appraisal shall be due
and payable by Borrower on demand and shall be secured by the
Loan Documents. Borrower shall cooperate fully with the
appraisal process, including, but not limited to, allowing
reasonable entry upon and into the Property. Notwithstanding
anything contained herein or in the other Loan Documents for
the Loan to the contrary, Lender shall not request updated
appraisals pursuant to this Section unless the Loan is in
Default, or if required by any governmental law or regulation,
or for good cause (i.e. Lender has reason to believe the value
of the Property has declined such that the desired Loan-to-
value ratio is no longer maintained).
2.12 Construction Consultant. Borrower shall cooperate
with Construction Consultant and will furnish Construction
Consultant whatever Construction Consultant considers
necessary or useful to perform its duties. The duties of
Construction Consultant run solely to Lender, and Construction
Consultant shall have no obligations or responsibilities
whatsoever to Borrower, Borrower's architect, engineer,
contractor or to any of their agents or employees.
Construction Consultant may, among other duties, perform
construction cost analyses, review the Plans, all proposed
changes in them, observe work in place, and review Draw
Requests. Unless prohibited by applicable law, the fees,
costs, and expenses of Construction Consultant shall be paid
by Borrower.
2.13 Reports and Vouchers. Borrower shall (a) promptly
deliver to Lender copies of all reports, studies, inspections
and tests made on the Land, the Improvements or the materials
to be incorporated into the Improvements; (b) make additional
tests Lender reasonably requires; and (c) deliver to Lender,
on demand, any contracts, bills of sale, statements, receipted
vouchers or agreements under which Borrower claims title to
any materials, fixtures or articles incorporated or to be
incorporated in the Improvements or otherwise subject to a
lien or security interest in favor of Lender. Borrower shall
immediately notify Lender of such report, study, inspection or
test that indicates any adverse condition in the Land or the
Improvements.
2.14 Payment of Withholding Taxes. Borrower shall not
use, or knowingly permit any contractor or subcontractor to
use, any portion of the proceeds of any advance to pay the
wages of employees unless a portion of the proceeds or other
funds are also used to make timely payment to or deposit with
the United States all amounts of tax required to be deducted
and withheld with respect to such wages under the Internal
Revenue Code, and to make timely payment to or deposit with
any local and/or state governmental authority or agency having
jurisdiction all amounts of tax required to be deducted and
withheld with respect to such wages under any applicable local
and/or state laws.
2.15 Representations and Warranties. To induce Lender to
make the Loan, Borrower hereby represents and warrants to
Lender that (a) prior to the recordation of the Mortgage, no
work of any kind (including the destruction or removal of any
existing improvements, site work, clearing, grading, grubbing,
draining or fencing of the Land) has been or will be commenced
or performed on the Land, no equipment or material has been or
will be delivered to or upon the Land for any purpose
whatsoever, and no contract (or memorandum or affidavit
thereof) for the supplying of labor, materials, or services
for the design or construction of the Improvements, or the
surveying of the Land or Improvements, nor any affidavit or
notice of commencement of construction of the Improvements,
has been or will be executed or recorded, which could cause a
mechanic's or materialman's lien or similar lien to have an
inception so as to achieve priority over the mortgage or the
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Construction Loan Agreement 5
rights of Lender thereunder; (b) to the extent required by
applicable law, Borrower and Guarantor have filed all
necessary tax returns and reports and have paid all taxes and
governmental charges thereby shown to be owing; (c) the Plans
are satisfactory to Borrower, have been approved by all
applicable governmental authorities, have been accepted by
each contractor, are complete in all material respects,
contain all detail necessary and are adequate for the
construction of the Improvements, and comply with the Loan
Documents, all applicable laws, restrictive covenants, and
governmental requirements, rules, and regulations; (d) the
Land is not part of a larger tract of land owned by Borrower
or its affiliates or any Guarantor and is not otherwise
included under any unity of title or similar covenant with
other lands not encumbered by the Mortgage, and Borrower has
obtained or will obtain prior to the issuance of the first tax
xxxx coming due after the date of this Agreement, a separate
tax lot or lots with a separate tax assessment or assessments
for the Land and Improvements, independent of any other lands
or improvements; (e) the Land and Improvements comply with all
laws and governmental requirements, including all subdivision
and platting requirements, without reliance on any adjoining
or neighboring property; (f) the Plans do and the Improvements
when constructed will comply with all legal requirements
regarding access and facilities for handicapped or disabled
persons; (g) Borrower has not directly or indirectly conveyed,
assigned or otherwise disposed of or transferred (or agreed to
do so) any development rights, air rights or other similar
rights, privileges or attributes with respect to the Property,
including those arising under any zoning or land use ordinance
or other law or governmental requirement; (h) the construction
schedule for the Project is realistic and the Completion Date
is a reasonable estimate of the time required to complete the
Project; and (i) the Financial Statements delivered to Lender
are true and correct, and there has been no material change of
Borrower's financial condition from the financial condition of
Borrower indicated in such Financial Statements.
ARTICLE 3. - DEFAULT AND REMEDIES
3.1 Events of Default. The occurrence of any one of the
following shall be a default under this Agreement ("Default"):
(a) any of the Indebtedness is not paid when due, whether the
due date is the scheduled due date or arises by acceleration
or otherwise; (b) any covenant, agreement or condition in any
Loan Document (other than covenants to pay any of the
Indebtedness) is not fully and timely performed, observed or
kept; (c) the cessation of the construction of the
Improvements continues for more than fifteen (15) days
(whether or not consecutive) except for Excusable Delays; (d)
the construction of the Improvements, or any materials for
which an advance has been requested, fails to comply with the
Plans, the Loan Documents, or any laws or governmental
requirements, which failure is not cured within thirty (30)
days after written notice thereof to Borrower; (e) Borrower
fails to satisfy any condition precedent to the obligation of
Lender to make an advance; (f) construction of the
Improvements is abandoned, or Borrower fails to complete
construction of the Improvements (and obtain all applicable
permits, licenses, and approvals) in accordance with this
Agreement on or before the Completion Date; (g) any required
permit, license, certificate or approval with respect to the
Property lapses or ceases to be in full force and effect; (h)
a Borrower's Deposit is not made with Lender within seven (7)
days after Lender's request therefor in accordance with
Section 1.4; (i) construction is enjoined or Borrower or
Lender is enjoined or prohibited from performing under the
Loan Documents; (j) the owner of the Property enters into any
lease of part or all of the Property which does not comply
with the Loan Documents; or (k) any claim of lien for labor or
materials or any other lien or encumbrance of any nature
whatsoever is recorded against Borrower or the Property and is
not removed by payment or transferred to substitute security
in the manner provided by law, within ten (10) days after it
is recorded in accordance with applicable law; or (l) any
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federal, state or local tax lien is recorded against the
Borrower or the Property and is not removed by payment or
transferred to substitute security in the manner provided by
law within thirty (30) days after it is recorded in accordance
with applicable law; (m) Borrower shall cease to exist or to
be qualified to do or transact business in the State in which
the Property is located, or shall be dissolved or shall be a
party to a merger or consolidation, or shall sell all or
substantially all of its assets; (n) any sale, conveyance,
transfer, assignment, or other disposition of all or any part
of the Property; (o) any statement or representation of
Borrower or any Guarantor contained in the Loan application or
any financial statements or other materials furnished to
Lender or any other lender prior or subsequent to the making
of the Loan secured hereby are discovered to have been
materially false or incorrect or incomplete; (p) Borrower or
any Guarantor shall default under any obligation imposed by
any indemnity whether contained within any of the Loan
Documents, the Hazardous Waste Certification and
Indemnification, or otherwise; or (q) a default occurs under
any Loan Document other than this Agreement. The events
described in subparagraphs (e) through (j) above shall not be
deemed to be events of Default unless they continue for a
period of ten (10) days after written notice thereof from
Lender to Borrower, provided, however, if such event may not
reasonably be cured within such ten (10) day period, an event
of Default shall not be deemed to have occurred so long as
same shall be diligently and continuously endeavored to be
cured. Notwithstanding the foregoing, it shall be an event of
Default if the violation has not been cured within sixty (60)
days after notice thereof.
3.2 Remedies. Upon a Default, Lender may, at its
election, but without any obligation to do so, without further
notice, do any one or more of the following: (a) terminate its
commitment to lend and any obligation to disburse any
Borrower's Deposit hereunder; (b) reduce any claim to
judgment; (c) exercise any and all rights and remedies
afforded by this Agreement, the other Loan Documents, law,
equity or otherwise; (d) set-off and apply, to the extent
thereof and to the maximum extent permitted by law, any and
all deposits, funds, or assets at any time held and any and
all other indebtedness at any time owing by Lender to or for
the credit or account of Borrower against any Indebtedness; or
(e) in its own name or in the name of Borrower, enter into
possession of the Property, perform all work necessary to
complete the construction of the Improvements substantially in
accordance with the Plans (as modified as deemed necessary by
Lender), Loan Documents, laws, and governmental requirements,
and continue to employ Borrower's architect, engineer, and any
contractor pursuant to the applicable contracts or otherwise.
Borrower hereby appoints Lender as the attorney-in-fact of
Borrower, which power of attorney is irrevocable and coupled
with an interest, with full power of substitution and in the
name of Borrower, if Lender elects to do so, upon the
occurrence of a Default, to i) use such sums as are necessary,
including any proceeds of the Loan and any Borrower's Deposit,
make such changes or corrections in the Plans and employ such
architects, engineers, and contractors as may be required for
the purpose of completing the construction of the Improvements
substantially in accordance with the Plans (as modified as
deemed necessary by Lender), Loan Documents, laws and
governmental requirements, or as otherwise may be necessary or
desirable for purposes of completing such construction; ii)
execute all applications and certificates in the name of
Borrower which may be required for completion of construction
of the Improvements; iii) endorse the name of Borrower on any
checks or drafts representing proceeds of any insurance
policies, or other checks or instruments payable to Borrower
with respect to the Property; iv) do every act with respect to
the construction of the Improvements which Borrower may do; v)
prosecute or defend any action or proceeding incident to the
Property, vi) pay, settle, or compromise all bills and claims
so as to clear title to the Property; and vii) take over and
use all or any part of the labor, materials, supplies and
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Construction Loan Agreement 7
equipment contracted for, owned by, or under the control of
Borrower which relate to the construction, maintenance or
operation of the Improvements (but not any such items related
to the Borrower's business conducted in the Improvements),
whether or not previously incorporated into the Improvements.
Any amounts expended by Lender shall be a demand obligation
owing by Borrower to Lender. Lender shall have no liability
to Borrower for the sufficiency or adequacy of any such
actions taken by Lender.
ARTICLE 4. - GENERAL TERMS AND CONDITIONS
4.1 Usury Laws. Borrower, Lender and all other parties
to the Loan Documents intend to conform to and contract in
strict compliance with applicable usury law from time to time
in effect. All agreements between Borrower and Lender (or any
other party liable with respect to any Indebtedness under the
Loan Documents) are hereby limited by the provisions of this
Section which shall override and control all such agreements,
whether now existing or hereafter arising. In no way, nor in
any event or contingency (including but not limited to
prepayment, default, demand for payment, or acceleration of
the maturity of any obligation), shall the interest taken,
reserved, contracted for, charged, chargeable, or received
under this Agreement, the Note, any of the other Loan
Documents, or otherwise, exceed the maximum amount permitted
under applicable law ("Maximum Amount"). If, from any
possible construction of any document, interest would
otherwise be payable in excess of the Maximum Amount, any such
construction shall be subject to the provisions of this
Section and such document shall ipso facto be automatically
reformed and the interest payable shall be automatically
reduced to the Maximum Amount, without the necessity of
execution of any amendment or new document. If Lender shall
ever receive anything of value which is characterized as
interest under applicable law and which would apart from this
provision be in excess of the Maximum Amount, an amount equal
to the amount which would have been excessive interest shall,
without penalty, be applied to the reduction of the principal
amount owing on the Indebtedness in the inverse order of its
maturity and not to the payment of interest, or be refunded to
Borrower or the other payor thereof, at the election of Lender
in its sole discretion or as required by applicable law. The
right to accelerate maturity of the Note or any other
Indebtedness does not include the right to accelerate any
interest which has not otherwise accrued on the date of such
acceleration, and Lender does not intend to charge or receive
any unearned interest in the event of acceleration. All
interest paid or agreed to be paid to Lender shall, to the
extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term
(including any renewal or extension) of such Indebtedness so
that the amount of interest on account of such Indebtedness
does not exceed the Maximum Amount. As used in this Section,
the term "applicable law" shall mean the laws of the State of
Florida or the federal laws of the United States applicable to
this transaction, whichever laws allow the greater interest,
as such laws now exist or may be changed or amended or come
into effect in the future.
4.2 Lender's Consent. Except where otherwise expressly
provided in the Loan Documents, in any instance where the
approval, consent or the exercise of judgment of Lender is
required, the granting or denial of such approval or consent
and the exercise of such judgment shall be (a) within the sole
discretion of Lender and free from any limitation or
requirement of reasonableness if the matter which gives rise
to the need for the approval, consent or exercise of judgment
relates to the construction of the Improvements, and within
the reasonable discretion of Lender if the matter which gives
rise to the need for the approval, consent or exercise of
judgment does not relate to the construction of the
Improvements; and (b) deemed to have been given only by a
specific writing intended for the purpose given and executed
by Lender. Notwithstanding any approvals or consents by
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Construction Loan Agreement 8
Lender, Lender has no obligation or responsibility whatsoever
for the adequacy, form or content of the Plans, the Budget,
any contract, any change order, any lease, or any other matter
incident to the Property or the construction of the
Improvements. Lender's acceptance of an assignment of the
Plans shall not constitute approval of the Plans. Any
inspection or audit of the Property or the books and records
of Borrower, or the procuring of documents and financial and
other information, by or on behalf of Lender shall be for
Lender's protection only, and shall not constitute any
assumption of responsibility to Borrower or anyone else with
regard to the condition, construction, maintenance or
operation of the Property, or relieve Borrower of any of
Borrower's obligations. Borrower or the Contractor has
selected all surveyors, architects, engineers, contractors,
materialmen and all other persons or entities furnishing
services or materials to the Project. Lender has no duty to
supervise or to inspect the Property or the construction of
the Improvements nor any duty of care to Borrower or any other
person to protect against, or inform Borrower or any other
person of, the existence of negligent, faulty, inadequate or
defective design or construction of the Improvements. Lender
shall not be liable or responsible for any defect in the
Property or the Improvements, the performance or default of
Borrower, Borrower's or Contractor's architect, engineer,
contractor, the Construction Consultant, or any other party,
or for any failure to construct, complete, protect or insure
the Improvements, or for the payment of costs of labor,
materials, or services supplied for the construction of the
Improvements, or for the performance of any obligation of
Borrower or Contractor whatsoever. Nothing, including any
advance or acceptance of any document or instrument, shall be
construed as a representation or warranty, express or implied,
to any party by Lender. Inspection shall not constitute an
acknowledgment or representation by Lender or the Construction
Consultant that there has been or will be compliance with the
Plans, Loan Documents, applicable laws and governmental
requirements or that the construction is free from defective
materials or workmanship. Inspection whether or not followed
by notice of Default shall not constitute a waiver of any
Default then existing, or a waiver of Lender's right
thereafter to insist that the Improvements be constructed in
accordance with the Plans, Loan Documents, applicable laws,
and governmental requirements. Lender's failure to inspect
shall not constitute a waiver of any of Lender's rights under
the Loan Documents or at law or in equity.
4.3 Miscellaneous. This Agreement may be executed in
several counterparts, all of which are identical, and all of
which counterparts together shall constitute one and the same
instrument. The Loan Documents are for the sole benefit of
Lender and Borrower and are not for the benefit of any third
party. A determination that any provision of this Agreement
is unenforceable or invalid shall not affect the
enforceability or validity of any other provision and the
determination that the application of any provision of this
Agreement to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity
of such provision as it may apply to other persons or circum-
stances. Time shall be of the essence with respect to
Borrower's obligations under the Loan Documents. This
Agreement, and its validity, enforcement and interpretation,
shall be governed by the laws of the State of Florida (without
regard to any conflict of laws principles) and applicable
United States federal law.
4.4 Notices. Unless specifically provided otherwise,
any notice for purposes of this Agreement or any other Loan
Document shall be given in writing or by telex or by facsimile
(fax) transmission and shall be addressed or delivered to the
respective addresses set forth at the end of this Agreement,
or to such other address as may have been previously
designated by the intended recipient by notice given in
accordance with this Section. If sent by prepaid, registered
or certified mail (return receipt requested), the notice shall
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Construction Loan Agreement 9
be deemed effective when the receipt is signed or when the
attempted initial delivery is refused or cannot be made
because of a change of address of which the sending party has
not been notified; if transmitted by telex, the notice shall
be effective when transmitted (answerback confirmed); and if
transmitted by facsimile or personal delivery, the notice
shall be effective when received. No notice of change of
address shall be effective except upon actual receipt, and
service of a notice required by any applicable statute shall
be considered complete when the requirements of that statute
are met. This Section shall not be construed in any way to
affect or impair any waiver of notice or demand provided in
any Loan Document or to require giving of notice or demand to
or upon any person in any situation or for any reason.
4.5 Successors and Assigns. This Agreement shall be
binding upon Borrower, and Borrower's heirs, devisees,
representatives, successors and assigns, and shall inure to
the benefit of Lender and its successors and assigns,
provided, however, that Borrower shall not assign or encumber
any interest of Borrower hereunder without the prior written
consent of Lender. Lender may sell or offer to sell the Loan
or interests in the Loan to one or more assignees or
participants. Borrower shall execute, acknowledge, and
deliver any and all instruments reasonably requested by Lender
or such assignee or participant.
4.6 Modification or Termination. The Loan Documents may
only be modified or terminated by a written instrument or
instruments intended for that purpose and executed by the
party against which enforcement thereof is asserted. This
Agreement shall continue in full force and effect until the
Indebtedness is paid in full; and all representations and
warranties and all provisions herein for indemnity of Lender
(and any other provisions herein specified to survive) shall
survive payment in full of the Indebtedness and any release or
termination of this Agreement or of any other Loan Documents.
4.7 Costs and Expenses. Without limitation of any Loan
Document and to the extent not prohibited by applicable laws,
Borrower shall pay when due, and reimburse to Lender on
demand, and indemnify Lender from, all out-of-pocket fees,
costs, and expenses paid or incurred by Lender in connection
with the negotiation, preparation and execution of this
Agreement and the other Loan Documents (and any amendments,
approvals, consents, waivers and releases requested, required,
proposed or done from time to time), or in connection with the
disbursement, administration or collection of the Loan or the
enforcement of the obligations or the exercise of any right or
remedy of Lender (including costs of arbitration), including
(a) fees and expenses of Lender's counsel; (b) fees and
charges of each Construction Consultant or architect; (c)
appraisal, re-appraisal and survey costs; (d) title insurance
charges and premises; (e) title search or examination costs,
including abstracts, abstractors' certificates and uniform
commercial code searches; (f) judgment and tax lien searches
for Borrower and each Guarantor; (g) escrow fees; (h) fees and
costs of environmental investigations and site assessments;
(i) recordation taxes, documentary taxes, transfer taxes and
mortgage taxes, (j) filing and recording fees, and (k) loan
brokerage fees. Borrower shall pay all costs and expenses
incurred by Lender, including attorneys' fees, if the
obligations or any part thereof are sought to be collected by
or through an attorney at law, whether or not involving
probate, arbitration, appellate, administrative or bankruptcy
proceedings. Borrower shall pay all costs and expenses of
complying with the Loan Documents, whether or not such costs
and expenses are included in the Budget. Borrower's
obligations under this Section shall survive the delivery of
the Loan Documents, the making of advances, the payment in
full of the obligations, the release or determination of the
Loan Documents, the foreclosure of the Mortgage or conveyance
in lieu of foreclosure, any bankruptcy or other debtor relief
proceeding, and any other event whatsoever.
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Construction Loan Agreement 10
4.8 Further Assurances. Borrower will, on request of
Lender, (a) promptly correct any defect, error or omission in
any Loan Document; (b) execute, acknowledge, deliver, procure,
record or file such further instruments and do such further
acts deemed necessary, desirable or proper by Lender to carry
out the purposes of the Loan Documents and to identify and
subject to the liens and security interest of the Loan
Documents any property intended to be covered thereby,
including any renewals, additions, substitutions,
replacements, or appurtenances to the Property; (c) execute,
acknowledge, deliver, procure, file or record any document or
instrument deemed necessary, desirable, or proper by Lender to
protect the liens or the security interest under the Loan
Documents against the rights or interests of third persons;
and (d) provide such certificates, documents, reports,
information, affidavits and other instruments and do such
further acts deemed necessary, desirable or proper by Lender
to comply with the requirements of any agency having
jurisdiction over Lender.
4.9 No Assignment. Borrower shall not assign, transfer
or encumber its rights or obligations under any Loan Document
or any proceeds of the Loan without the prior written consent
of Lender.
4.10 Inducement to Lender. The representations and
warranties contained in the Loan Documents (a) are made to
induce Lender to make the Loan and Lender is relying thereon,
and (b) shall survive any bankruptcy proceedings involving
Borrower, Guarantor or the Property, foreclosure, or
conveyance in lieu of foreclosure.
4.11 Forum. Borrower hereby irrevocably submits
generally and unconditionally for itself and in respect of its
property to the jurisdiction of any state court, or any United
States federal court, sitting in the State specified in
Section 4.3 of this Agreement and to the jurisdiction of any
state court or any United States federal court, sitting in the
state in which any of the Property is located, over any suit,
action or proceeding arising out of or relating to this
Agreement or the Indebtedness. Borrower hereby irrevocably
waives, to the fullest extent permitted by law, any objection
that Borrower may now or hereafter have to the laying of venue
in any such court and any claim that any such court is an
inconvenient forum. Borrower hereby agrees and consents
that, in addition to any methods of service or process
provided for under applicable law, all service of process in
any such suit, action or proceeding in any state court, or any
United States federal court, sitting in the state specified in
Section 4.3 may be made by certified or registered mail,
return receipt requested, directed to Borrower at its address
for notice stated in the Loan Documents, or at a subsequent
address of which Lender received actual notice from Borrower
in accordance with the Loan Documents, and service so made
shall be complete five (5) days after the same shall have been
so mailed. Nothing herein shall affect the right of Lender to
serve process in any manner permitted by law or limit the
right of Lender to bring proceedings against Borrower in any
other court or jurisdiction.
4.12 Interpretation. References to "Dollars", "$",
"money", "payments" or other similar financial or monetary
terms are references to lawful money of the United States of
America. References to Articles, Sections, and Exhibits are,
unless specified otherwise, references to articles, sections
and exhibits of this Agreement. Words of any gender shall
include each other gender. Words in the singular shall
include the plural and words in the plural shall include the
singular. References to Borrower or Guarantor shall mean,
each person comprising same, jointly and severally.
References to persons shall include any legal entities,
including public or governmental bodies, agencies or
instrumentalities, and natural persons. The words "herein",
"hereof", "hereunder" and other similar compounds of the word
"here" shall refer to the entire Agreement and not to any
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Construction Loan Agreement 11
particular provision or section. The words "include" and
"including" shall be interpreted as if followed by the words
"without limitation". Captions and headings in the Loan
Documents are for convenience only and shall not affect the
construction of the Loan Documents.
4.13 No Partnership, etc. The relationship between
Lender and Borrower is solely that of lender and borrower.
Lender has no fiduciary or other special relationship with or
duty to Borrower and none is created by the Loan Documents.
Nothing contained in the Loan Documents, and no action taken
or omitted pursuant to the Loan Documents, is intended or
shall be construed to create any partnership, joint venture,
association, or special relationship between Borrower and
Lender or in any way make Lender a co-principal with Borrower
with reference to the Project, the Property or otherwise. In
no event shall Lender's rights and interests under the Loan
Documents be construed to give Lender the right to control, or
be deemed to indicate that Lender is in control of, the
business, properties, management or operations of Borrower.
4.14 Records. The unpaid amount of the Loan set forth on
the books and records of Lender maintained in the ordinary
course of its business shall be presumptive evidence of the
amount thereof owing and unpaid, but failure to record any
such amount on the books and records shall not limit or affect
the obligations of Borrower under the Loan Documents to make
payments on the Loan when due.
4.15 Exhibits. This Agreement includes the Exhibits
listed below which are marked by "X", all of which Exhibits
are attached hereto and made a part hereof for all purposes,
it being agreed that if any Exhibit to be executed and
delivered contains blanks, the same shall be completed
correctly and in accordance with this Agreement prior to or at
the time of the execution and delivery thereof.
X Exhibit "A" - Legal description of the Land
X Exhibit "B" - Basic Information
X Exhibit "C" - Certain Conditions Precedent
to the First Advance
X Exhibit "D" - Budget
X Exhibit "E" - Plans
X Exhibit "F" - Advances
X Exhibit "F-1" - Draw Request
X Exhibit "G" - Survey Requirements
4.16 Cross Default. A Default hereunder or under any of
the documents evidencing or securing the Loan shall constitute
an event of default under any other indebtedness (now or
hereafter existing) of Borrower to Lender. Any default under
any document evidencing or securing such other indebtedness
shall constitute a Default hereunder.
4.17 Title Endorsements. When requested by Lender during
the term of the Loan, Borrower shall provide an endorsement to
Lender's title policy which reflects that (a) the real estate
taxes for the Property have been paid; (b) no new title
matters have appeared of record to which Lender has not
consented; and (c) no liens, encumbrances or lis pendenses
have been filed against the Property, other than as
specifically approved by Lender.
4.18 Mandatory Arbitration. Any controversy or claim
between or among the parties hereto including but not limited
to those arising out of or relating to this Agreement or any
related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by
binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the
Rules of Practice and Procedure for the Arbitration of
Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules
shall control. Judgment upon any arbitration award may be
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Construction Loan Agreement 12
entered in any court having jurisdiction. Any party to this
Agreement may bring an action, including a summary or
expedited proceeding, to compel arbitration of any controversy
or claim to which this agreement applies in any court having
jurisdiction over such action.
(a) Special Rules. The arbitration shall be
conducted in Tampa, Florida and administered by Endispute,
Inc., d/b/a J.A.M.S./Endispute who will appoint an arbitrator;
if J.A.M.S./Endispute is unable or legally precluded from
administering the arbitration, then the American Arbitration
Association will serve. All arbitration hearings will be
commenced within 90 days of the demand for arbitration;
further, the arbitrator shall only, upon a showing of cause,
be permitted to extend the commencement of such hearing for up
to an additional 60 days.
(b) Reservations of Rights. Nothing in this
Agreement shall be deemed to i) limit the applicability of any
otherwise applicable statutes of limitation or repose and any
waivers contained in this Agreement; or ii) be a waiver by
Lender of the protection afforded to it by 12 U.S.C. Sec. 91
or any substantially equivalent state law; or (iii) limit the
right of Lender (A) to exercise self help remedies such as
(but not limited to) setoff, or (B) to foreclose against any
real or personal property collateral, or (C) to obtain from a
court provisional or ancillary remedies such as (but not
limited to) injunctive relief or the appointment of a
receiver. Lender may exercise such self help rights,
foreclose upon such property, or obtain such provisional or
ancillary remedies before, during or after the pendency of any
arbitration proceeding brought pursuant to this Agreement. At
Lender's option, foreclosure under a deed of trust or mortgage
may be accomplished by any of the following: the exercise of
a power of sale under the deed of trust or mortgage, or by
judicial sale under the deed of trust or mortgage, or by
judicial foreclosure. Neither the exercise of self help
remedies nor the institution or maintenance of an action for
foreclosure or provisional or ancillary remedies shall
constitute a waiver of the right of any party, including the
claimant in any such action, to arbitrate the merits of the
controversy or claim occasioning resort to such remedies.
No provision in the Loan Documents regarding submission to
jurisdiction and/or venue in any court is intended or shall be
construed to be in derogation of the provisions in any Loan
Document for arbitration of any controversy or claim.
4.19 Entire Agreement. The Loan Documents constitute the
entire understanding and agreement between Borrower and Lender
with respect to the transactions arising in connection with
the Loan and supersede all prior written or oral
understandings and agreements between Borrower and Lender with
respect to the matters addressed in the Loan Documents. In
particular, and without limitation, the terms of any
commitment by Lender to make the Loan are merged into the Loan
Documents. Lender has not made any commitments to extend the
term of the Loan past its stated maturity date or to provide
Borrower with financing except as set forth in the Loan
Documents. Except as incorporated in writing in the Loan
Documents, there are not, and were not, and no persons are or
were authorized by Lender to make, any representations,
understandings, stipulations, agreements or promises, oral or
written, with respect to the matters addressed in the Loan
Documents.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED and DELIVERED as of August 14, 1995.
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Construction Loan Agreement 13
Borrower's Address for Notices: BORROWER:
0000 Xxxxxxxxxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000 PLASMA-THERM, INC., a Florida
corporation
The Federal Tax Identification By: /S/Xxxxxx X. Xxxxxxxxx
Number of Borrower: Xxxxxx X. Xxxxxxxxx
President
00-0000000
(CORPORATE SEAL)
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Construction Loan Agreement 14
Lender's Address for Notices: LENDER:
Attn: Real Estate Loan NATIONSBANK OF FLORIDA, N.A., a
Administration national banking association
000 Xxxxx Xxxxxx Xxxxx (FL1-
010-07-01) By: /s/Xxxxx X. Xxxxxx
Xxxxx, XX 00000 Xxxxx X. Xxxxxx
(Print Name of Officer)
Its Vice President
(CORPORATE SEAL)
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Construction Loan Agreement 15
EXHIBIT "A"
Legal Description
Lots 28, 29, 30, 31 and the Northerly 130 feet of
Lot 27, all in Block C of METROPOINTE COMMERCE PARK
PHASE II, according to the map or plat thereof
recorded in Plat Book 103, pages 25 and 26, Public
Records of PINELLAS County, Florida.
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Construction Loan Agreement 16
EXHIBIT "B"
BASIC INFORMATION
A. SPECIFIC DEFINITIONS:
1. "Appraised Value" means $4,100,000.00
2. "Borrower" means Plasma-Therm, Inc., a Florida
corporation
3. "Completion Date" means June 14, 1996
4. "Contractor" means The Perry Company, a Florida
corporation
5. "Financial Statements" means, in accordance with the
requirements of this Section, a balance sheet, income
statement, statements of cash flow and amount and sources of
contingent liabilities, and a reconciliation of changes in
equity, and, unless Lender otherwise consents, consolidated
and consolidating statements if the reporting party is a
holding company or a parent of a subsidiary entity. In this
Section, each party for whom Financial Statements are required
is a "reporting party" and a specified period to which the
required Financial Statements relate is a "reporting period".
Borrower shall provide or cause to be provided to Lender the
following:
(a) Annual unqualified audited Financial Statements
of Borrower for each fiscal year of Borrower, as soon as
reasonably practicable and in any event within one
hundred twenty (120) days after the close of each fiscal
year.
(b) Quarterly Borrower-prepared unaudited Financial
Statements (Form 10-Q) concerning Borrower's business on
a consolidated and consolidating basis for each fiscal
quarter of Borrower, as soon as reasonable practicable
and in any event within forty-five (45) days after the
close of each fiscal quarter.
(c) Copies of filed federal and state income tax
returns of Borrower for each taxable year, within twenty
(20) days after filing but in any event not later than
one hundred fifty (150) days after the close of each such
taxable year.
(d) Such additional financial statements, profit
and loss statements, and other accounting data related to
Borrower as may be reasonably requested by Lender from
time to time concerning Borrower.
All Financial Statements shall be in form and detail
satisfactory to Lender and shall contain or be attached to the
signed and dated written certification of the reporting party
in form specified by Lender to certify that the Financial
Statements are furnished to Lender in connection with the
extension of credit by Lender and constitute a true and
correct statement of the reporting party's financial position.
All certifications and signatures on behalf of corporations,
partnerships or other entities shall be by a representative of
the entity satisfactory to Lender. All fiscal year-end
Financial Statements of Borrower shall be audited and
certified, without any qualification or exception not
acceptable to Lender, by independent certified public
accountants acceptable to Lender, and shall contain all
reports and disclosures required by generally accepted
accounting principles for a fair presentation, including a
certificate of the accountant in form and substance
satisfactory to Lender to the effect that said accountant has
no knowledge that any event of Default, or any event which
with notice and/or lapse of time would become an event of
Default as set forth herein, has occurred and is continuing,
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Construction Loan Agreement 17
or, if he has knowledge that any such event has occurred and
is continuing, specifying the details thereof. For purposes
of this Agreement and other Loan Documents, the accounting
firm of Xxxxx Xxxxxxxx LLP shall be acceptable to Lender until
such time as Lender shall notify Borrower to the contrary.
6. "Improvements" means all on-site and off-site
improvements to the Land for a 60,639.50 square foot (MOL)
office/manufacturing facility, including leasehold improve-
ments, to be constructed on the Land, together with all
fixtures and appurtenances now or later to be located on the
Land and/or in such improvements.
7. "Initial Land Advance" means N/A.
8. "Loan" means the construction\term loan by Lender to
Borrower, in the principal amount of $3,375,000.00.
9. "Permitted Changes" means changes to the Plans or
Improvements, provided the cost of any single change or extra
does not exceed $25,000.00 and the aggregate amount of all
such changes and extras (whether positive or negative) does
not exceed $100,000.00.
10. "Project" means the acquisition of the Land, the
construction of the Improvements, and if applicable, the
operation of the Improvements.
11. "Stored Materials Advance Limit" means $ -0-
.
12. "Title Insurer" means Lawyers Title Insurance
Corporation.
B. GENERAL DEFINITIONS:
1. "Budget" means the budget and cost itemization for
the Project attached as Exhibit "D".
2. "Construction Consultant" means the construction
consultant, if any, engaged by Lender with respect to the
Project.
3. "Default" is defined in Section 3.1 of this
Agreement.
4. "Environmental Agreement" means the Environmental
Indemnity Agreement of even date herewith between Borrower and
Lender.
5. "Excusable Delays" means unusually adverse weather
conditions which have not been taken into account in the
construction schedule, fire, earthquake or other acts of God,
strike, lockout, acts of public enemy, riot or insurrection or
any unforeseen circumstances or events (except financial
circumstances or events or matters which may be resolved by
the payment of money) beyond the control of Borrower, not to
exceed a total of thirty (30) days, provided Borrower shall
notify Lender in writing within five (5) days after such
occurrence, but no Excusable Delay shall extend the Completion
Date or suspend or xxxxx any obligation of Borrower or any
Guarantor or any other person to pay any money.
6. "Indebtedness" means any and all indebtedness to
Lender evidenced, governed or secured by, or arising under,
any of the Loan Documents, including the Loan.
7. "Land" means the real estate described in Exhibit
"A".
8. "Loan Documents" means this Agreement (including all
exhibits), the Mortgage, the Note, the Environmental
Agreement, any financing statements, the Budget, each Draw
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Construction Loan Agreement 18
Request and such other documents evidencing, securing or
pertaining to the Loan as shall, from time to time, be
executed and/or delivered by Borrower or any other party to
Lender pursuant to this Agreement.
9. "Mortgage" means the first Mortgage, Assignment of
Rents and Security Agreement securing repayment of the
Indebtedness.
10. "Note" means the promissory note executed by
Borrower in the amount of $3,375,000.00.
11. "Plans" means the plans and specifications listed in
Exhibit "E".
12. "Property" means the Land, the Improvements and all
other property constituting the "Mortgaged Property," as
described in the Mortgage, or subject to a right, lien or
security interest to secure the Loan pursuant to any other
Loan Document.
13. "Title Insurance" means the title insurance
described in Exhibit "C".
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Construction Loan Agreement 19
EXHIBIT "C"
CERTAIN CONDITIONS PRECEDENT TO THE FIRST ADVANCE
1. Fees and Expenses. Lender shall have received any
required Commitment Fee and Borrower shall have paid all other
fees, costs and expenses then required to be paid pursuant to
this Agreement and any other Loan Documents.
2. Financial Statements. Lender shall have received
and approved the Financial Statements of Borrower and
Guarantor or any other party required by any loan application
or commitment or otherwise required by Lender.
3. Appraisal. Lender shall have received and approved
a market value appraisal made within thirty (30) days of the
date of this Agreement, which appraises the Property on a
"completed value" basis at not less than the Appraised Value.
The appraiser and appraisal must be satisfactory to Lender
(including satisfaction of applicable regulatory requirements)
and the appraiser must be engaged directly by Lender.
4. Draw Schedule and Budget. Lender shall have
received and approved Borrower's proposed draw schedule, and
construction schedule, for the Project.
5. Authorization. Lender shall have received and
approved evidence Lender requires of the existence, good
standing, authority and capacity of Borrower to execute,
deliver, and perform the Loan Documents, including but not
limited to:
(a) For each corporation: i) a copy of its
articles of incorporation and by-laws, and all amendments
thereto, a certificate of incumbency of all of its officers
who will be authorized to execute or attest any of the Loan
Documents, and a copy of resolutions approving the Loan
Documents and authorizing the transactions contemplated in
this Agreement; and ii) certificates of existence, good
standing and qualification to do business in the state of its
creation and if different, in the state where the Project is
located, issued by the appropriate governmental officials.
(b) All certificates, resolutions, and consents
required by Lender applicable to the foregoing.
6. Loan Documents. Borrower, Guarantor and each other
person or entity required by Lender shall have duly executed,
acknowledged and/or sworn to as required, recorded or filed,
and delivered to Lender all Loan Documents then required by
Lender, dated the date of this Agreement, all in form and
content satisfactory to Lender.
7. Opinions. Lender shall have received the written
opinion of counsel for the Borrower addressed to Lender, dated
the date of this Agreement, which satisfies the requirements
of the loan commitment letter issued by Lender to Borrower
dated May 1, 1995, as amended by letter dated July 25, 1995.
8. Survey; No Special Flood Hazard. Lender shall have
received three (3) prints of an original survey of the Land
and improvements thereon dated not more than sixty (60) days
prior to the date of this Agreement (or dated such earlier
date, if any, as is satisfactory to the Title Insurer, but in
any event not more than one hundred eighty (180) days prior to
the date of this Agreement) satisfactory to Lender and the
Title Insurer and otherwise complying with Exhibit "G", and
otherwise in compliance with the requirements of the Loan
Documents, and containing evidence satisfactory to Lender that
none of the Land is located in a flood hazard area.
9. Title Insurance. Lender shall have received and
approved one or more title insurance policies or a title
insurance commitment marked through the Loan closing date with
all Schedule B-1 requirements deleted, as Lender may require,
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Construction Loan Agreement 20
issued by the Title Insurer in the maximum amount of the Loan,
on a coinsurance and/or reinsurance basis if and as required
by Lender, insuring that the Mortgage constitutes a valid lien
covering the Land and all improvements thereon, having the
priority required by Lender and subject only to those
exceptions and encumbrances (regardless of rank or priority)
Lender approves, in a form acceptable to Lender, and with all
"standard" exceptions which can be deleted, including the
exception for matters which a current survey would show,
deleted to the fullest extent authorized under applicable
title insurance rules, and Borrower shall satisfy all
requirements therefor; containing no exception for standby
fees or real estate taxes other than those for the year in
which the closing occurs to the extent the same are not then
due and payable and endorsed "not yet due and payable" and no
exception for subsequent assessments for prior years;
providing full coverage against mechanics' and materialmen's
liens to the extent authorized under applicable title
insurance rules, and Borrower shall satisfy all requirements
therefor; insuring that no restrictive covenants shown in the
Title Insurance have been violated, and that no violation of
the restrictions will result in a reversion or forfeiture of
title; insuring that fee simple indefeasible or marketable (as
coverage is available) fee simple title to the Land and
Improvements is vested in Borrower; containing such
endorsements as Lender may require and are available under
applicable title insurance rules, and Borrower shall satisfy
all requirements therefor; insuring any easements, leasehold
estates or other matters appurtenant to or benefiting the Land
and/or the Improvements as part of the insured estate;
insuring the right of access to the Land to the extent
authorized under applicable title insurance rules, and
Borrower shall satisfy all requirements therefor; and
containing provisions acceptable to Lender regarding advances
of Loan funds after closing. Borrower and Borrower's counsel
shall not have any interest, direct or indirect, in the Title
Insurer (or its agent) or any portion of the premium paid for
the Title Insurance.
10. Plans. Lender shall have received and approved two
(2) true and correct copies of all existing Plans signed and
sealed by the architect (including the site plan), together
with satisfactory evidence that all applicable governmental
authorities, Borrower, Borrower's architect, engineer, and
contractors and Construction Consultant have approved the
same, and Construction Consultant has reviewed the Plans.
11. Contracts. Lender shall have received and approved
(a) a list containing the names and addresses of all existing
contractors, architects, engineers, and other suppliers of
services and materials for the Project (but only to the extent
such information is supplied to Borrower by the Contractor),
their respective contract amounts, and a copy of their
contracts; and (b) duly executed, acknowledged and delivered
originals from each contractor, architect, engineer,
subcontractor, or supplier of services or materials required
by Lender, of i) consents or other agreements satisfactory to
Lender and ii) agreements satisfactory to Lender subordinating
all rights, liens, claims and charges they may have or acquire
against Borrower or the Property to the rights, liens and
security interests of Lender.
12. Insurance Policies. Lender shall have received and
approved insurance evidence certificates or other certificates
deemed acceptable to Lender of the insurance policies required
by Lender, pursuant to the Loan Documents, together with
evidence satisfactory to Lender that all premiums therefor
have been paid and that the policies are in full force and
effect; such insurance policies shall include the following,
and Borrower shall cause them to be maintained in full force
and effect at all times throughout the term of the Loan:
(a) Hazard insurance insuring the Improvements and
all Personal Property, which now or hereafter may constitute
part of the Property, against loss or damage by fire and other
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Construction Loan Agreement 21
hazards included within the term "all risk" or "extended
coverage" and against such other hazards as Lender may require
in the full insurable value thereof (or such lesser amount as
Lender may authorize in writing), with an insurer satisfactory
to Lender. Such policy shall include a Replacement Cost and
Agreed Amount/Stipulated Value Endorsement and a Sinkhole
Endorsement, if deemed necessary by Lender.
(b) a "Broad Form Comprehensive General Liability"
insurance coverage for both Borrower and any contractor
performing services to the Property in the minimum coverage
amount of One Million Dollars ($1,000,000.00) per occurrence
and combined single limit ("CSL") of Five Million Dollars
($5,000,000.00) if the Loan amount is less than $10,000,000.00
or CSL of Ten Million Dollars, ($10,000,000.00) if the Loan
amount is $10,000,000.00 or greater.
(c) if at any time the Land or any portion thereof
is located in a "Flood Hazard Area" pursuant to the Flood
Disaster Protection Act of 1973 or any successor or
supplemental act thereto, flood insurance in the maximum
amount available under the Flood Insurance Act or such other
amount as Lender may reasonably request. Lender may require
additional flood insurance from the secondary market.
(d) an "All risk", non-reporting, completed value
builder's risk insurance policy, which policy shall include
Agreed Amount, Replacement Cost, Permit to Occupy and
Vandalism/Malicious Mischief Endorsements.
(e) boiler and machinery insurance, worker's
compensation insurance, wind damage insurance, and other
insurance coverages as Lender may reasonably require.
The policy or policies of insurance shall i) be from
companies and in coverage amounts acceptable to Lender, ii)
contain a standard mortgagee clause in favor of Lender naming
Lender as a mortgagee and including a lender's loss payee
clause in such policy, as applicable, iii) not be terminable
or modified without thirty (30) days' prior written notice to
Lender, and iv) be evidenced by original policies or certified
copies of policies deposited with Lender, as Lender may elect,
to be held by Lender until the Indebtedness shall have been
fully paid and discharged. Borrower shall furnish Lender
satisfactory evidence of payment of all premiums required and
similar evidence of renewal or replacement coverage not later
than thirty (30) days prior to the date any coverage will
expire.
Each insurance policy or endorsement required herein
shall be written by an insurer having a rating not less than
"A-XII" Best's Rating according to the most current edition of
Best's Key Rating Guide as determined at the time of the
initial policy and at all times during the term hereof. All
policies shall indicate that notices related to such insurance
shall be sent to Lender at:
000 Xxxxx Xxxxxx Xxxxx (FL1-010-07-01)
Xxxxx, Xxxxxxx 00000
Attn: Loan Administration Section,
Real Estate Banking Group
13. Environmental Compliance/Report. Lender shall have
received and approved evidence satisfactory to Lender that no
portion of the Land is "wetlands" under any applicable law and
that the Land does not contain and is not within or near any
area designated as a hazardous waste site by any governmental
authority, that neither the Property nor any adjoining
property contains or has ever contained any substance
classified as hazardous or toxic (or otherwise regulated, such
as, without limitation, asbestos, radon and/or petroleum
products) under, and that neither the Property nor any use or
activity thereon violates or is or could be subject to any
response, remediation, clean-up or other obligation under, any
law or governmental requirement pertaining to health or the
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Construction Loan Agreement 22
environment, including without limitation, a written report of
an environmental assessment of the Property, made within one
hundred eighty (180) days prior to the date of this Agreement,
by an engineering firm, and of a scope and in form and content
satisfactory to Lender, complying with Lender's established
guidelines, showing that there is no evidence of any such
substance which has been generated, treated, stored, released
or disposed of in the Property, and such additional evidence
as may be required by Lender. All reports, drafts of reports,
and recommendations, whether written or oral, from such
engineering firm shall be made available and communicated to
Lender.
14. Soil Reports. Lender and Construction Consultant
shall have received and reviewed a soil composition and test
boring report and a foundation report satisfactory to Lender
regarding the Land, by a licensed professional engineer
satisfactory to Lender. Any recommendations of the engineer
in the soil report shall be incorporated into the Plans.
15. Access, Utilities, and Laws. Lender shall have
received and approved (a) satisfactory evidence that the
Property abuts and has fully adequate direct and free access
to one or more public streets, dedicated to public use, fully
installed and accepted by the appropriate governmental
authority, that all costs and expenses of the installation and
acceptance thereof have been paid in full, and that there are
no restrictions on the use and enjoyment of such streets which
would adversely affect the Project; (b) letters from the
applicable utility companies or governmental authorities
confirming that all utilities necessary for the Improvements
are available at the Land in sufficient capacity, together
with evidence satisfactory to Lender of paid impact fees or
utility reservation deposits or connection fees required to
assure the availability of such services; (c) satisfactory
evidence that all applicable zoning ordinances, restrictive
covenants and governmental requirements affecting the Property
(including those relating to the local government
Comprehensive Planning and Land Development Regulation Act,
Section 163.3161, et. seq., Florida Statutes) permit the use
for which the Property is intended and have been or will be
complied with without the necessity of variance and without
the Property being a nonconforming use; (d) evidence
satisfactory to Lender that the Land and Improvements comply
and will comply with all laws and governmental requirements
regarding subdivision and platting and would so comply if the
Land and the Improvements thereon were conveyed as a separate
parcel; (e) a true and correct copy of a valid building permit
for the Improvements, together with all other permits and
approvals necessary for construction of the Improvements; and
(f) evidence satisfactory to Lender of compliance by Borrower
and the Property, and the proposed construction, use and
occupancy of the Improvements, with such other applicable laws
and governmental requirements as Lender may request, including
all laws and governmental requirements regarding access and
facilities for handicapped or disabled persons including,
without limitation and to the extent applicable, Part V of the
Florida Building Construction Standards Act entitled
"Accessibility by Handicapped Persons", Chapter 553, Fla
Stat.; The Federal Architectural Barriers Act (42 U.S.C.
Section 4151 et seq.), The Fair Housing Amendments Act of
1988 (42 U.S.C. Section 3601 et seq.), The Americans With
Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.),
The Rehabilitation Act of 1973 (29 U.S.C. Section 794) and
any applicable state requirements.
16. Priority. Lender shall have received and approved
(a) evidence satisfactory to Lender that prior to and as of
the time the Mortgage was filed for record i) no activity or
circumstance was visible on or near the Land which would
constitute inception of a mechanic's or materialman's lien
against the Property, ii) no contract, or memorandum thereof,
for construction, design, surveying, or any other service
relating to the Project has been filed for record in the
county where the Property is located; iii) no mechanic's or
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Construction Loan Agreement 23
materialman's lien claim or notice, lis pendens, judgment, or
other claim or encumbrance against the Property has been filed
for record in the county where the Property is located or in
any other public record which by law provides notice of claims
or encumbrances regarding the Property; (b) a certificate or
certificates of a reporting service acceptable to Lender,
reflecting the results of searches made not earlier than ten
(10) days prior to the date of this Agreement, i) of the
central and local Uniform Commercial Code records, showing no
filings against any of the collateral for the Loan or against
Borrower otherwise except as consented to by Lender; and ii)
if required by Lender, of the appropriate judgment and tax
lien records, showing no outstanding judgment or tax lien
against Borrower or any Guarantor.
17. Bonds. Lender shall have received and approved (a)
a performance bond for the Contractor, in form and content
satisfactory to Lender and in an amount equal to 100% of the
construction price; and (b) a payment bond for the Contractor,
in form and content satisfactory to Lender and in an amount
equal to 100% of the construction contract price; and if
required by Lender duly recorded before any construction is
commenced. Each bond shall be issued by a corporate surety
acceptable to Lender and authorized and admitted to do
business and to execute bonds in the state where the Project
is located and shall name Lender as an additional obligee.
18. Paid Tax Receipts. Lender shall have received and
approved satisfactory evidence (a) that all taxes, standby
fees and any other similar charges have been paid, including
copies of receipts or statements marked "paid" by the
appropriate authority; and (b) that the Land is or will be
prior to the issuance of the first tax xxxx coming due after
the date of this Agreement, a separate tax lot or lots with
separate assessment or assessments of the Land and
Improvements, independent of any other land or improvements.
For purposes of this Agreement, appropriate notations of paid
taxes in the Title Insurance information described above shall
satisfy the requirements of (a) herein.
19. Notice to Contractor and Lienors of Hard Cost
Reallocation. If the Draw Request requires an amendment to
the Budget or reallocation of hard cost items which would
require contractor and lienor notice under Section
713.3471(2), Florida Statutes, Borrower, as owner, shall serve
the Contractor and all required lienors, written notice in
compliance with Section 713.3471(2), Florida Statutes, and
shall deliver such notice to Lender, countersigned by the
Contractor and any lienors who have provided notices to owner.
20. Other Documents. Borrower and any other person or
entity, shall have delivered to Lender, in form and content
satisfactory to Lender, such other documents and certificates
as Lender may reasonably request.
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Construction Loan Agreement 24
EXHIBIT "D"
BUDGET
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Construction Loan Agreement 25
EXHIBIT "E"
PLANS
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Construction Loan Agreement 26
EXHIBIT "F"
ADVANCES
1. Draw Request. A "Draw Request" means a properly
completed and executed written application by Borrower to
Lender in the form of Exhibit "F-1" (or in another form
approved by Lender) setting forth the amount of Loan proceeds
desired, together with such schedules, affidavits, releases,
waivers, statements, invoices, bills, and other documents,
certificates and information required by Lender. At least
five (5) business days before the requested date of each
advance, Borrower shall deliver a Draw Request to Lender.
Borrower shall be entitled to an advance only in an amount
approved by Lender in accordance with the terms of this
Agreement and the Loan Documents. Lender shall not be
required to make advances more frequently than once each
calendar month. Lender shall, only upon the satisfaction of
all applicable conditions of this Agreement and the Loan
Documents, make the requested advance to Borrower on a
business day within five (5) business days after such
satisfaction. Each Draw Request, and Borrower's acceptance of
any advance, shall be deemed to ratify and confirm that all
representations and warranties in the Loan Documents remain
true and correct as of the date of the Draw Request and the
advance, respectively. Borrower hereby designates Xxxxxx X.
Xxxxxxxxx or Xxxxx X. XxXxxxxxx as having authority to sign
all Draw Requests on Borrower's behalf.
2. Advances. Borrower shall disburse all advances made
to Borrower, for payments of the costs and expenses specified
in the Budget for which the advances were made, and for no
other purpose. Following receipt and approval of a Draw
Request, all supporting documentation and information, and
receipt and approval of a written or verbal report from
Construction Consultant, Lender will determine the amount of
the advance it will make in accordance with this Agreement,
the Loan Documents, the Budget, and the following standards:
(a) An initial advance in the amount of the Initial
Land Advance will be made for the acquisition of the Land.
(b) For construction work, advances will be made on
the basis of ninety percent (90%) of the costs shown on the
application for payment from the contractor reviewed and
approved by Lender and Xxxxxxx & Xxxx of the work or material
in place on the Improvements that comply with the terms of the
Loan Documents, minus all previous advances and all amounts
required to be paid by Borrower, as described in Columns (B)
and (C) of the Budget.
(c) Loan disbursements will be made for the cost of
non-construction items on the basis of one hundred percent
(100%) of the costs of all approved invoices therefor, up to
the maximum amount of such costs set forth in the Loan Budget.
(d) Advances will not be made for building
materials or furnishings that are not yet incorporated into
the Improvements ("stored materials") unless the stored
materials are in Borrower's possession and satisfactorily
stored on the Land, no materials are stored for a time period
exceeding forty-five (45) days, Lender has a lien on such
materials which is prior to the lien of any other secured
party, Lender has received and approved all invoices for the
materials to be stored on-site and the aggregate of advances
for stored materials that have not yet been incorporated into
the Improvements does not exceed the Stored Materials Advance
Limit. The advances for stored materials will be limited to
90% of the invoice cost of the materials.
(e) Lender will not make advances for any Borrower
"developer fees".
3. Conditions to the First Advance. As conditions
precedent to the first advance hereunder: (a) there shall
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Construction Loan Agreement 27
then exist no Default or any event which, with the giving of
notice or the lapse of time, or both, could become a Default;
(b) the representations and warranties made in the Loan
Documents shall be true and correct; (c) each contract to be
made by Borrower for any labor, materials, services and/or
other work for or in connection with construction of the
Improvements shall have been duly executed and delivered by
all parties thereto and shall be fully effective, and Lender
shall have received a true, complete executed original
counterpart of each such contract; (d) Borrower must have
satisfied the conditions required under the Loan Documents,
including those identified in Exhibit "C" and Section 4 below;
(e) Borrower must have paid all amounts required to be paid by
Borrower as described in Columns (B) and (C) of the Budget,
and (f) Borrower must have delivered to Lender a Draw Request.
4. Conditions to All Advances. As conditions precedent
to each advance made pursuant to a Draw Request in addition to
all other requirements contained in the other Loan Documents,
Borrower must satisfy the following conditions, and deliver to
Lender evidence of such satisfaction:
(a) All conditions precedent to the first advance
have been and continue to be satisfied.
(b) No Default or any event which, with the giving
of notice or the lapse of time, or both, could become a
Default exists.
(c) The representations and warranties made in the
Loan Documents must be true and correct on and as of the date
of each advance.
(d) Each subcontract or other contract for labor,
materials, services and/or other work included in a Draw
Request shall have been duly executed and delivered by all
parties thereto and shall be effective, and Lender shall have
received a true, complete copy of a fully executed copy of
each such subcontract or other contract as Lender may have
requested.
(e) No mechanics or materialmen's lien or other
encumbrance shall have been filed and remain in effect against
the Property, and releases or waivers of mechanics' liens and
receipted bills showing payment of all amounts due to all
parties who have furnished materials or services or performed
labor of any kind in connection with the Property shall have
been obtained. Additionally, Borrower shall provide an
affidavit stating that the advances made up to the date of the
signing of the affidavit have been paid to the appropriate
parties.
(f) The Title Insurance shall have been endorsed
and down-dated in a manner satisfactory to Lender to increase
the coverage by the amount of each advance through the date of
each such advance with no additional title change or exception
not approved by Lender.
(g) Lender shall have received written
certification by Borrower's Construction Consultant, and if
required by Lender by Xxxxxxx & Xxxx, that to the best of such
party's knowledge, information, and belief, construction is in
accordance with the Plans, the quality of the work for which
the advance is requested is in accordance with the applicable
contract, the amount of the advance requested represents work
in place based on onsite observations and the data
compromising the Draw Request, the work has progressed as
indicated, and the applicable contractor is entitled to
payment of the amount certified.
(h) Lender shall have received a foundation survey
made immediately after, but in no event later than fifteen
(15) days after, the laying of the foundation of each building
or structure of the Improvements satisfactory to Lender
complying with Exhibit "G", and certifying as to the absence
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Construction Loan Agreement 28
of encroachments from, or onto, the Property and compliance of
the Improvements, as then-constructed, with zoning laws and
other relevant restrictions.
(i) Lender shall have received within fifteen (15)
days after the pouring of concrete for any Improvements, a
report satisfactory to Lender and Construction Consultant of
the results of concrete tests made at the time the concrete is
poured. The concrete tests shall not be made by any of the
contractors working on the Improvements.
(j) Lender shall have received within fifteen (15)
days after the compaction of any soil for construction, a
report satisfactory to Lender and Construction Consultant of
the results of soil tests.
(k) As of the date of making such advance, no event
shall have occurred, nor shall any condition exist, that could
have an adverse effect on the enforceability of the Loan
Documents, be materially adverse to the financial condition of
Borrower, impair the ability of Borrower to fulfill its
material obligations under the Loan Documents, or otherwise
have any adverse effect whatsoever on the Property.
(l) The Improvements shall not have been damaged
and not repaired.
(m) Borrower shall have paid all amounts required
to be paid by Borrower under Columns (B) and (C) of the
Budget.
(n) Borrower shall have made the Borrower's Deposit
if required by Section 1.4 of this Agreement.
(o) Borrower shall have delivered to Lender such
other information, documents and supplemental legal opinions
as may be required by Lender.
(p) With respect to any advance to pay a
contractor, Lender shall have received original applications
for payments in form approved by Lender, containing a
breakdown by trade and/or other categories acceptable to
Lender, executed and certified by each contractor and Xxxxxxx
& Xxxx, accompanied by invoices, and approved by Construction
Consultant. Copies of invoices or other acceptable
documentation shall be submitted to substantiate Borrower's
requests for payment of Project-related "soft costs".
5. Final Advance for Improvements. In the case of the
final Draw Request, Lender shall have received the following
as additional conditions precedent to the requested advance:
(a) Certificates (on a form to be provided by
Lender) from Xxxxxxx & Xxxx, the Contractor and, if required
by Lender, from the Construction Consultant, certifying that
the Improvements (including any off-site improvements) have
been completed in accordance with, and as completed comply
with, the Plans and all laws and governmental requirements,
together with the AIA G704 Certificate of Substantial
Completion from each of said professionals; and Lender shall
have received two (2) sets of detailed "as built" Plans
approved in writing by Borrower, Xxxxxxx & Xxxx, and
Contractor. The Plans must include plans and specifications
for architectural, structural, mechanical, plumbing,
electrical and site development work (including storm
drainage, utility lines and landscaping).
(b) Final affidavits (in a form approved by Lender)
from Xxxxxxx & Xxxx and the Contractor certifying that each of
them and their subcontractors, laborers, and materialmen, as
applicable, have been paid in full for all labor and materials
for construction of the Improvements; and final lien releases
or waivers (in a form approved by Lender) by Xxxxxxx & Xxxx,
Contractor, and all subcontractors, materialmen, and other
parties who have supplied labor, materials, or services for
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Construction Loan Agreement 29
the construction of the Improvements, or who otherwise might
be entitled to claim a contractual, statutory or
constitutional lien against the Property.
(c) The Title Insurance shall be endorsed to remove
any exception for mechanics' or materialmen's liens or pending
disbursements, with no additional title change or exception
objectionable to Lender, and with such other endorsements
required by Lender.
(d) Evidence satisfactory to Lender that all laws
and governmental requirements have been satisfied, including
receipt by Borrower of all necessary governmental licenses,
certificates and permits (including certificates of occupancy)
with respect to the completion, use, occupancy and operation
of the Improvements, together with evidence satisfactory to
Lender that all such licenses, certificates, and permits are
in full force and effect and have not been revoked, canceled
or modified.
(e) Evidence satisfactory to Lender that all impact
fees for the Project have been paid.
(f) Three (3) copies of a final as-built survey of
the Property satisfactory to Lender, showing all Improvements
in place, including striping of parking areas and a statement
as to the number of parking spaces, and otherwise complying
with Exhibit "G".
(g) A certification by the surety that it has
approved the final Loan disbursement to the contractor, on an
AIA form G707 or such other form as shall be acceptable to
Lender.
(h) At such time as the Improvements are occupied,
an evidence certificate of an "all risk" permanent hazard
insurance policy must be submitted to Lender. The policy:
shall be from a company satisfactory to Lender with an A-XII
Best's Rating or better; shall be in an amount satisfactory to
Lender; shall include a Replacement Cost and Agreed
Amount/Stipulated Value Endorsement; shall include a Sinkhole
Endorsement, if appropriate; and shall include provisions for
a minimum 30-day advance written notice to Lender of any
intended policy cancellation, non-renewal or material
modifications; and shall designate Lender as mortgagee and
loss payee. Borrower shall submit satisfactory evidence that
all insurance premiums have been paid.
6. Direct Advances. Borrower hereby irrevocably
authorizes Lender (but Lender shall have no obligation) to
advance Loan funds directly to itself to pay interest due on
the Loan. Each such direct advance (except for application of
a Borrower's Deposit) shall be added to the outstanding
principal balance of the Loan and shall be secured by the Loan
Documents. Unless Borrower pays such interest from other
resources, Lender may advance Loan funds pursuant to this
Section for interest payments as and when due. Nothing
contained in this Agreement shall be construed to permit
Borrower to defer payment of interest on the Loan beyond the
date(s) due. The allocation of Loan funds in the Budget for
interest shall not affect Borrower's absolute obligation to
pay the same in accordance with the Loan Documents. Lender
may hold, use, disburse and apply the Loan and the Borrower's
Deposit for payment of any obligation of Borrower under the
Loan Documents. Borrower hereby assigns and pledges the
proceeds of the Loan and any Borrower's Deposit to Lender for
such purposes. Lender may advance and incur such expenses as
Lender deems necessary for the completion of the Improvements
and to preserve the Property and any other security for the
Loan, and such expenses, even though in excess of the amount
of the Loan, shall be secured by the Loan Documents and shall
be payable to Lender on demand. Lender may disburse any
portion of any advance at any time, and from time to time, to
persons other than Borrower for the purposes specified in this
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Construction Loan Agreement 30
Section and the amount of advances to which Borrower shall
thereafter be entitled shall be correspondingly reduced.
7. Conditions and Waivers. All conditions precedent to
the obligation of Lender to make any advance are imposed
hereby solely for the benefit of Lender, and no other party
may require satisfaction of any such condition precedent or be
entitled to assume that Lender will refuse to make any advance
in the absence of strict compliance with such conditions
precedent. Any requirement of this Agreement may be waived,
in whole or in part, in a specific written waiver intended for
that purpose and signed by Lender. Lender shall have the
right to approve and verify the periodic progress, costs
incurred by Borrower, and the estimated costs remaining to be
incurred, after consultation with the Construction Consultant.
No advance shall constitute an approval or acceptance by
Lender of any construction work, a waiver of any condition
precedent to any further advance, or preclude Lender from
thereafter declaring the failure of Borrower to satisfy such
condition precedent to be a Default. No waiver by Lender of
any condition precedent or obligation shall preclude Lender
from requiring such condition or obligation to be met prior to
making any other advance or from thereafter declaring the
failure to satisfy such condition or obligation to be a
Default.
8. Funding. Borrower shall establish and maintain a
special account with Lender into which advances funded
directly to Borrower (but no other funds), and excluding
direct disbursements made to or by Lender pursuant to this
Agreement, shall be deposited by Borrower, and against which
checks shall be drawn only for the payment of costs specified
in the Budget, but which special account shall not be used for
any other purpose. Borrower hereby irrevocably authorizes
Lender to deposit each advance requested by Borrower to the
credit of Borrower in that account, by wire transfer or other
deposit. Advances may also be made, in addition to other
methods contemplated herein, at Lender's option, by direct or
joint check payment to any or all persons entitled to payment
for work or services performed or material furnished in
connection with the Project or the Loan, or by having the
proceeds thereof made available to the Title Insurer (or its
agent) for disbursement. Lender shall not be required to, and
has no responsibility to, supervise the proper application or
distribution of funds to third parties.
9. Compliance with Prompt Payment Law. Borrower shall
comply with the Construction Contract Prompt Payment Law
contained in the Florida Construction Lien Law, Chapter 713,
Florida Statutes, notwithstanding Lender's failure or delay in
funding any Draw Requests or Lender's cessation of funding
Draw Requests in accordance with the terms of this Agreement.
10. Construction Lien Law Notification Requirements.
Borrower hereby authorizes Lender to provide written notices
to Contractor and lienors providing notices to owner pursuant
to Section 713.3471(1)(a), Florida Statutes, and Section
713.3471(2)(b), Florida Statutes, to the extent such notices
are required by law. Borrower hereby releases Lender and
waives all claims it may have against Lender for damages
Borrower may incur as a result of Lender's failure to deliver
said notices. Borrower hereby agrees to provide all required
notices to the Contractor and all lienors providing notices to
owner in compliance with Section 713.3471(2)(a), Florida
Statutes, in a timely fashion.
11. Post-Closing Environmental Assessments. In addition
to the environmental report required to be furnished to Lender
as a condition precedent to the Loan closing and the First
Advance, Lender may, at Lender's sole option, and at the
Borrower's expense, require an environmental assessment or
updated assessment of the Property by an engineering firm, and
of a scope and in form and content satisfactory to Lender,
complying with Lender's established guidelines, showing that
there is no evidence of any hazardous or toxic substances
which have been generated, treated, stored, released or
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Construction Loan Agreement 31
disposed of in the Property, except for such hazardous or
toxic substances lawfully used by the Borrower in the ordinary
course of Borrower's business operations on the Property, and
such additional evidence as may be required by Lender.
Borrower agrees at its sole expense to provide such
environmental assessments when requested by Lender. If any
environmental assessment indicates the past or present use,
handling, storage, transportation or disposal of hazardous or
toxic materials, except for such hazardous or toxic substances
lawfully used by the Borrower in the ordinary course of
Borrower's business operations on the Property, such shall
constitute a Default by the Borrower under the Loan Documents.
Notwithstanding anything contained herein to the contrary,
Lender shall not request updated environmental assessments
pursuant to this Section unless the Loan is in Default, or if
required by any governmental law or regulation or for good
cause (i.e. Lender has reason to believe the Property has been
or is presently being used for the handling, storage,
transportation or disposal of hazardous or toxic materials in
violation of any governmental law or regulation).
EXHIBIT "F-1"
DRAW REQUEST
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Construction Loan Agreement 32
EXHIBIT "G"
SURVEY REQUIREMENTS
Three (3) copies of a recent boundary survey of the Property
by a registered surveyor certified to Lender, the Title
Insurance company and the Borrower. The survey shall show (a)
all boundaries of the Land with courses and distances
indicated, including chord bearings and arc and chord
distances for all curves; (b) dimensions and locations of the
Improvements and of all easements, roads, encroachments,
setback lines and utility lines; (c) the distances to, and
names of, the nearest intersecting streets; (d) the location
of all parking spaces, together with a statement reflecting
the total number of spaces; (e) other facts in any way
affecting the Property; (f) such other details as Lender may
request; and (g) a certification by the surveyor that, if the
Property consists of two or more parcels having common
boundaries, those parcels are contiguous along the common
boundaries. The total Land area must also be included
together with a certification as to the location of any of the
Property within any special flood hazard area. The surveyor
must include on the survey a signed narrative statement in
certification of the existence or nonexistence of any
encroachments from, or onto, the Property and must include the
date of the survey, the surveyor's registration number and
seal.
The attached Surveyor's Report and Certification form should
be completed and submitted with the surveys.
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Construction Loan Agreement 33
