Draw Requests. Before Lender becomes obligated to make any disbursement, it must receive a written request signed by Borrower using the form attached hereto as EXHIBIT Q ("DRAW REQUEST"), which Draw Request shall be sent to Lender at the address set forth in Section 8.3 hereof, accompanied by such documentation and information set forth in Sections 2.1(a) and (b) above, and Section 2.1(c) in the case of the final disbursement, or as otherwise requested by Lender. All such documentation and information must be acceptable in form and substance to Lender in the exercise of its reasonable judgment. In the event the Draw Request is so approved, Lender shall disburse directly to Borrower (or directly to General Contractor if Borrower so requests) such Loan funds equal to (a) the sum due pursuant to the Draw Request, to the extent that such sum is in the Budget (or a modification thereof which is approved in writing by Lender, in accordance with the reasonability standard set forth above), less (b) ten percent (10%) thereof to be retained by Lender until final payment shall be due and owing, provided, however, that subsequent to completion of fifty percent (50%) of the value of the Improvements, if in Lender's and Borrower's judgement, the Improvements are satisfactorily progressing and such progress continues, the future retainage shall be reduced to five percent (5%); provided, however that if at any time thereafter, in Lender's reasonable judgment, the Improvements are no longer satisfactorily progressing, the retainage will, from and after the next disbursement after notice thereof from Lender setting forth the reasons for its determination, unless satisfactory progress is subsequently restored, be ten percent (10%); provided, however, that if a Draw Request shall have been submitted prior to Borrower's receipt of such notice, then the increase in retainage will be postponed until the following disbursement. Notwithstanding the foregoing, if such disbursement would cause the total amount disbursed under the Loan, including accrued interest thereon, to exceed the Maximum Loan Amount, Lender shall only disburse such amount that, when added to the total amount of the Loan previously disbursed and all interest accrued but unpaid, will increase the Loan balance to equal the Maximum Loan Amount. Despite any other provisions of this or any other Loan Documents, Borrower may submit Draw Requests to Lender no more frequently than once each month, unless Lender has given its prior written consent in each instance.
Appears in 1 contract
Samples: Construction Loan Agreement (JMB Income Properties LTD V)
Draw Requests. Before Lender becomes obligated HEB may draw upon the Escrowed Funds on a monthly basis to make any disbursementoffset the costs of designing, it must receive permitting and constructing the Project. HEB shall prepare all monthly Draw Requests (herein so called) to include (a) a written request signed certificate executed by Borrower using an officer of HEB detailing the form attached hereto as EXHIBIT Q Costs incurred by HEB during the payment period ("DRAW REQUEST"the “Draw Amount”), which Draw Request shall be sent to Lender at the address set forth in Section 8.3 hereof, accompanied by such documentation and information set forth in Sections 2.1(a) and (b) aboveinvoices or other reasonable backup for the Costs incurred by HEB during the payment period (including a certificate executed by a licensed engineer or architect that (1) shows the percentages and value of work completed on the Project during the payment period, (2) states that all portions of the Project for which payment is requested have been completed in accordance with the Plans, and Section 2.1(c(3) in the case certifies that all labor, materials and other items with respect to that portion of the Project for which payment is requested have been paid in full). HEB shall submit all Draw Requests to the City for review and approval. The City will take final disbursementaction on each Draw Request within five (5) business days after its receipt of the same, or as otherwise requested by Lender. All such documentation and information must and, if approved (which approval shall not be acceptable in form and substance to Lender in the exercise of its reasonable judgment. In the event unreasonably withheld), deliver the Draw Request to Escrow Agent. If the City reasonably objects to any Draw Request, it will notify HEB and Escrow Agent within five (5) business days after its receipt of the same and will then use good faith, diligent efforts to resolve its objection within three (3) business days after such notification. If the City’s objection is so approvednot resolved within eight (8) business days after the City’s initial receipt of the Draw Request, Lender the City shall disburse directly immediately forward the uncontested portion of the Draw Request to Borrower (HEB and Escrow Agent as the Draw Amount for payment, and thereafter the City and HEB will work to reach agreement on the disposition of the contested amount. Any fully or directly partially approved Draw Request forwarded by the City to General Contractor if Borrower so requests) Escrow Agent shall constitute an “Approved Draw Request”. If the City fails to timely object to, accept, forward or otherwise respond to a Draw Request as herein required, then HEB may immediately deliver such Loan funds equal Draw Request to (a) Escrow Agent along with HEB’s true and correct affidavit stating that the sum due pursuant City has failed to timely respond to the Draw Request, and such Draw Request and affidavit shall also constitute an Approved Draw Request. Within two (2) days after the date Escrow Agent receives an Approved Draw Request from the City or HEB (HEB’s Approved Draw Request to consist of a Draw Request accompanied by HEB’s true and correct affidavit stating that the extent that City has failed to timely respond such sum is in the Budget (or a modification thereof which is approved in writing by Lender, Draw Request in accordance with the reasonability standard set forth aboveterms of this paragraph), less (b) ten percent (10%) thereof Escrow Agent shall disburse the Draw Amount to be retained by Lender until final payment shall be due and owing, provided, however, that subsequent HEB. Notwithstanding anything to completion of fifty percent (50%) the contrary contained herein regarding the calculation of the value City Share, HEB may draw down on the full amount of the Improvements, if Escrowed Funds in Lender's and Borrower's judgement, the Improvements are satisfactorily progressing and such progress continues, manner herein provided in order to facilitate the future retainage shall be reduced to five percent (5%); provided, however that if at any time thereafter, in Lender's reasonable judgment, construction of the Improvements are no longer satisfactorily progressing, the retainage will, from and after the next disbursement after notice thereof from Lender setting forth the reasons for its determination, unless satisfactory progress is subsequently restored, be ten percent (10%)Project; provided, however, upon completion and acceptance by the City of the Project, the parties shall (A) determine the total Costs, and (B) calculate the City’s Share of the Costs (i.e., the lesser of 57½ % of the Costs or $________), and if the parties determine that if a Draw Request shall have been submitted prior to Borrower's receipt the City’s Share of such noticethe Costs is less than $___________, then HEB shall promptly reimburse the increase in retainage will be postponed until City for the following disbursement. Notwithstanding difference between $___________ and the foregoing, if such disbursement would cause the total amount disbursed under the Loan, including accrued interest thereon, to exceed the Maximum Loan Amount, Lender shall only disburse such amount that, when added to the total amount City’s Share of the Loan previously disbursed and all interest accrued but unpaid, will increase the Loan balance to equal the Maximum Loan Amount. Despite any other provisions of this or any other Loan Documents, Borrower may submit Draw Requests to Lender no more frequently than once each month, unless Lender has given its prior written consent in each instanceCosts.
Appears in 1 contract
Samples: Utility Construction Agreement
Draw Requests. Before Lender becomes obligated to make any disbursement, it must receive a written request signed by Borrower using the form attached hereto as EXHIBIT Q ("DRAW REQUEST"), which Draw Request shall be sent to Lender at the address set forth in Section 8.3 hereof, accompanied by such documentation and information set forth in Sections 2.1(a) and (b) above, and Section 2.1(c) in the case of the final disbursement, or as otherwise requested by Lender. All such documentation and information must be acceptable in form and substance to Lender in the exercise of its reasonable judgment. In the event the Draw Request is so approved, Lender shall disburse directly to Borrower (or directly to General Contractor if Borrower so requests) such Loan funds equal to (a) the sum due pursuant to the Draw Request, to the extent that such sum is in the Budget (or a modification thereof which is approved in writing by Lender, in accordance Concurrently with the reasonability standard set forth above), less (b) ten percent (10%) thereof to be retained by Lender until final payment shall be due and owing, provided, however, that subsequent to completion of fifty percent (50%) of the value of the Improvements, if in Lender's and Borrower's judgement, the Improvements are satisfactorily progressing and such progress continues, the future retainage shall be reduced to five percent (5%); provided, however that if at request for any time thereafter, in Lender's reasonable judgment, the Improvements are no longer satisfactorily progressing, the retainage will, from and after the next disbursement after notice thereof from Lender setting forth the reasons for its determination, unless satisfactory progress is subsequently restored, be ten percent (10%); provided, however, that if a Draw Request shall have been submitted prior to Borrower's receipt of such notice, then the increase in retainage will be postponed until the following disbursement. Notwithstanding the foregoing, if such disbursement would cause the total amount disbursed construction Advance under the Loan, including accrued interest thereonBorrower will furnish to Lender a completed Draw Request with all required attachments. Borrower will submit all Draw Requests not more than once in any Calendar Month, unless Lender in its sole discretion approves a more frequent disbursement period (e.g., twice per month). Lender may charge an inspection fee for each Draw Request not to exceed the Maximum Loan Amountlesser of any fees of the Special Engineer for such service or $750 per request. Within ten days of receipt of the Draw Request (so long as the Draw Request has been timely received, is complete, and all other applicable conditions have been satisfied), Lender shall only disburse such amount thatagrees to make the requested Advance, when added subject to the total amount terms and conditions of this Agreement. Borrower shall supply to Lender with each Draw Request receipted invoices or bills of sale and unconditional partial releases and waivers of liens from each materials dealer, supplier, laborer, and subcontractor who has done work or furnished materials use of equipment, or other matters which could give rise to any lien on the Property or any part of it, or on any Collateral, for construction of the Loan previously disbursed Project covered by the most recent Draw Request with respect to which Lender has made Advances and conditional releases and waivers of liens by all interest accrued but unpaidsuch persons relating to matters covered by the current pending Draw Request (See Section 4.3). The lien waivers must be in a form acceptable to Lender. Upon the request of Lender (in Lender’s discretion), will increase Borrower agrees to make available to Lender prior to the Loan balance to equal making of any requested Advance: (i) a list of the Maximum Loan Amount. Despite names and addresses of all materials dealers, laborers, and subcontractors with whom written agreements have been made by Borrower or who have supplied any other provisions labor, materials, use of this equipment on the Project or any matter which could give rise to a lien on the Property or any part of it or an any Collateral; (ii) evidence that any required inspection by any governmental authority has been satisfactorily completed; and (iii) all other Loan Documentsinvoices, Borrower bills and statements as may submit Draw Requests be reasonably required by Lender to Lender no more frequently than once each month, unless Lender has given its prior written consent in each instancesubstantiate the amount requested and the appropriateness of the advance.
Appears in 1 contract
Samples: Construction and Term Loan Agreement
Draw Requests. Before Whenever Borrower desires to obtain an Advance or a disbursement of Construction Equity Deposits, Borrower shall submit a signed Draw Request to Bank, the Funding Lender, Project Inspector and Title Company. Draw Requests shall be submitted at least ten (10) Business Days prior to the date on which the requested disbursement is to be made. Draw Requests shall be submitted no more than once each month. Borrower shall also simultaneously submit to Bank, Project Inspector and Title Company the items required pursuant to Section 4.7 of the Loan Agreement, and submit to the Funding Lender becomes obligated any items required pursuant to the Funding Lender’s Loan Documents. With respect to each Advance, Title Company shall perform a search of the appropriate records and, within five (5) Business Days after receiving the foregoing items, shall give Bank and the Funding Lender notice by telephone or in writing if any intervening liens are disclosed (other than those expressly listed in the Bank’s Title Policy). If any such intervening liens or other matters are discovered by Title Company, which in the Funding Lender’s or Bank’s sole judgment jeopardize their respective interests in the Project, Title Company shall refrain from making further disbursements until Bank and the Funding Lender notify Title Company that such intervening liens or other matters have been waived by Bank and the Funding Lender or satisfied. Upon demand of Bank or the Funding Lender, Borrower shall immediately cause any such liens or other matters to be satisfied of record or bonded over, or shall deposit cash or make any disbursementother arrangements with respect to the discharge thereof satisfactory to Bank and the Funding Lender. With respect to each Advance, it must receive a written request signed by Borrower using if Bank and the form attached hereto as EXHIBIT Q Funding Lender have approved the Draw Request ("DRAW REQUEST"which approval shall be conditioned among other things upon all of the terms and conditions of Bank’s and the Funding Lender’s Loan Documents and this Agreement being complied with), which then, on the date the Advance is requested to be made, the Funding Lender will advance directly to Title Company the principal amount of the requested Advance less (a) the retainage required under the Construction Contract and the Funding Lender’s Loan Documents (unless such retainage is already accounted for in the Draw Request shall be sent to Lender at the address set forth in Section 8.3 hereofRequest), accompanied by such documentation and information set forth in Sections 2.1(a) and (b) aboveamounts payable to and advanced by the Funding Lender to itself. Title Company shall, as promptly as possible thereafter, if all of the conditions of this Agreement have been complied with in a manner satisfactory to Title Company, and Section 2.1(c) in if Title Company has not received notice from Bank or the case Funding Lender that a Default or an Event of Default exists under Bank’s or the Funding Lender’s Loan Documents, make a disbursement of the final disbursement, or as otherwise requested proceeds so received by Lender. All such documentation and information must be acceptable in form and substance to Lender in the exercise of its reasonable judgment. In the event the Draw Request is so approved, Lender shall disburse directly to Borrower (or directly delivering to General Contractor if Borrower so requests) Contractor, or, at Title Company’s, Bank’s or the Funding Lender’s option, to the subcontractors and other parties entitled to receive any of such Loan funds equal to (a) proceeds, by check or wire transfer, the sum due pursuant to amounts set forth in the Draw Request, . Notwithstanding anything in this Agreement to the extent that such sum is in contrary, the Budget (Subordinate Lender shall not have the right to approve or a modification thereof which is approved in writing by Lender, in accordance with the reasonability standard set forth above), less (b) ten percent (10%) thereof to be retained by Lender until final payment shall be due and owing, provided, however, that subsequent to completion of fifty percent (50%) disapprove Advances of the value of the Improvements, if in Lender's and Borrower's judgement, the Improvements are satisfactorily progressing and such progress continues, the future retainage shall be reduced to five percent (5%); provided, however that if at any time thereafter, in Lender's reasonable judgment, the Improvements are no longer satisfactorily progressing, the retainage will, from and after the next disbursement after notice thereof from Lender setting forth the reasons for its determination, unless satisfactory progress is subsequently restored, be ten percent (10%); provided, however, that if a Draw Request shall have been submitted prior to Borrower's receipt of such notice, then the increase in retainage will be postponed until the following disbursement. Notwithstanding the foregoing, if such disbursement would cause the total amount disbursed under the Senior Loan, including accrued interest thereon, to exceed the Maximum Loan Amount, Lender shall only disburse such amount that, when added to the total amount of the Loan previously disbursed and all interest accrued but unpaid, will increase the Loan balance to equal the Maximum Loan Amount. Despite any other provisions of this or any other Loan Documents, Borrower may submit Draw Requests to Lender no more frequently than once each month, unless Lender has given its prior written consent in each instance.
Appears in 1 contract
Samples: Master Disbursing Agreement
Draw Requests. Before Lender becomes obligated Borrower shall submit to make any disbursement, it must receive Agent and the Construction Consultant a written request signed by Borrower using Draw Request (substantially in the form forms attached hereto as EXHIBIT Q SCHEDULES II through IX) ("DRAW REQUESTBORROWER'S REQUISITION"), which Draw Request shall be sent to Lender at the address set forth in Section 8.3 hereof, accompanied by such documentation and information set forth in Sections 2.1(a) and not less than eight (b) above, and Section 2.1(c) in the case of the final disbursement, or as otherwise requested by Lender. All such documentation and information must be acceptable in form and substance to Lender in the exercise of its reasonable judgment. In the event the Draw Request is so approved, Lender shall disburse directly to Borrower (or directly to General Contractor if Borrower so requests) such Loan funds equal to (a) the sum due pursuant 8) Business Days prior to the Draw Request, to the extent that such sum is in the Budget (or date upon which a modification thereof which is approved in writing by Lender, in accordance with the reasonability standard set forth above), less (b) ten percent (10%) thereof to be retained by Lender until final payment shall be due and owing, provided, however, that subsequent to completion of fifty percent (50%) of the value of the Improvements, if in Lender's and Borrower's judgement, the Improvements are satisfactorily progressing and such progress continues, the future retainage shall be reduced to five percent (5%); provided, however that if at any time thereafter, in Lender's reasonable judgment, the Improvements are no longer satisfactorily progressing, the retainage will, from and after the next disbursement after notice thereof from Lender setting forth the reasons for its determination, unless satisfactory progress is subsequently restored, be ten percent (10%); provided, however, that if a Draw Request shall have been submitted prior to Borrower's receipt of such notice, then the increase in retainage will be postponed until the following disbursement. Notwithstanding the foregoing, if such disbursement would cause the total amount disbursed under the Loan, including accrued interest thereon, to exceed the Maximum Loan Amount, Lender shall only disburse such amount that, when added to the total amount of the Loan previously disbursed is requested (the "BORROWING DATE") and all interest accrued but unpaid, will increase the Loan balance to equal the Maximum Loan Amount. Despite any other provisions of this or any other Loan Documents, Borrower may submit Draw Requests to Lender no more frequently than once each month, unless Lender has given its prior written consent in each instancecalendar month (except as otherwise expressly provided in Section 2.10.2). As part of each Draw Request, Borrower shall submit, as notice of its intention to borrow funds, a Borrower's Requisition Letter in the form set forth in SCHEDULE II, which shall be executed by one of the Authorized Representatives. Each Borrower's Requisition Letter shall be accompanied by: (i) a Borrower's Requisition Spreadsheet in the form set forth in SCHEDULE IV (it being understood, however, that once the guaranteed maximum price shall have been approved by Lender as herein provided, Borrower shall be required to show on such Spreadsheet only a single Budget Line for Hard Costs); (ii) a completed Application and Certificate for Payment (AIA Document G702) attached hereto as SCHEDULE VI that is executed by the Construction Manager and Architect; (iii) a Borrowing Certificate in the form set forth in SCHEDULE VIII; (iv) Payment Receipts in the form set forth in SCHEDULE IX from the Construction Manager and Trade Contractors, evidencing that they have been paid in full for all work performed and/or materials supplied to the date of the preceding advance, except for Retainage provided for in this Agreement; (v) at the request of Agent, current requisitions for payment from Trade Contractors and/or any of their subcontractors allocable to the Improvements; (vi) such other information and documents as may be reasonably requested or required by Agent or the Construction Consultant with respect to the Hard Costs covered by such Draw Request; and (vii) invoices, statements or such other information and documentation as Agent shall reasonably request or require with respect to any Soft Costs covered by such Draw Request. All such requests and requisitions for payment shall have been approved by Borrower and, with respect to Hard Costs, recommended for payment by the Construction Consultant.
Appears in 1 contract
Draw Requests. Before Lender becomes obligated Prior to making any payment to the Contractor or to any other third party manufacturer, vendor, supplier, or governmental authority or utility retained by Landlord, for any other amount to be incurred by Landlord in connection with the construction of the Tenant Improvements (each, a "Progress Payment"), (a) Tenant's Representative shall have received complete copies of all of the fully-executed subcontracts and material supplier contracts that are not included in the Construction Contract, as previously approved by Tenant in accordance with Section 4.3.2 of this Tenant Work Letter, for all of the Landlord's Agents (as hereinafter defined) included as payees in the applicable Draw Request (as hereinafter defined), each of which shall be in the form approved by Tenant in advance in accordance with this Tenant Work Letter, and copies of all fully-executed Tenant Change Orders (as hereinafter defined) associated therewith, if any (which shall cover all work for which Landlord seeks to make any disbursementpayment pursuant to the applicable Draw Request, it must receive a provided that each contract and Change Order need be submitted only once for each such payee), and (b) Tenant’s Representative shall have received and approved the Landlord's written request signed by Borrower using for approval of the form attached hereto as EXHIBIT Q proposed Progress Payment amount ("DRAW REQUEST"each, a “Draw Request”), which Draw Request shall be sent include the following items: (i) a request for payment of the Contractor in a form similar to Lender at the address set forth in Section 8.3 hereofAIA G702 payment application request, accompanied showing the schedule, by such documentation and information set forth in Sections 2.1(a) and (b) abovetrade, of percentage of completion of the Tenant Improvements, and Section 2.1(c) in detailing the case portion of Tenant Improvements completed and the portion not completed as of the final disbursementdate of such Draw Request; (ii) invoices from all other "Landlord's Agents" as defined below, or for labor rendered and materials delivered to the Premises; (iii) executed mechanic's lien releases from all of Landlord's Agents which shall comply with the appropriate provisions, as otherwise reasonably determined by Landlord, of California Civil Code Sections 8132, 8134, 8136 and 8138 (with unconditional lien waivers from all of the Landlord's Agents for whom payments were requested by Lender. All such documentation and information must be acceptable in form and substance to Lender in the exercise of its reasonable judgment. In the event the Draw Request is so approved, Lender shall disburse directly to Borrower (or directly to General Contractor if Borrower so requests) such Loan funds equal to (a) the sum due pursuant to the previous Draw Request, to the extent that such sum is Request in the Budget (or amounts reasonably approved by Tenant for payment to such Landlord's Agents pursuant thereto, as such amount may be reduced by a modification thereof which is approved in writing by Lender, in accordance with the reasonability standard set forth above), less (b) retention not to exceed ten percent (10%) thereof to be retained of the amount reasonably approved by Lender until final payment shall be due Tenant for payment); and owing, provided, however, that subsequent to (iv) a certificate from the Architect certifying the requisite percentage of completion of fifty percent (50%) such work has been completed. Notwithstanding the foregoing, if Landlord has paid any portion of the value Tenant Improvement Allowance to any of the ImprovementsLandlord's Agents, if in Lender's and Borrower's judgement, the Improvements are satisfactorily progressing but pursuant to any unresolved dispute between Landlord and such progress continuesLandlord's Agent, such Landlord's Agent shall fail to deliver an unconditional lien waiver, then as long as Landlord provides reasonably satisfactory evidence to Tenant's Representative that the future retainage amount included in such unconditional lien waiver has been paid to such Landlord's Agent, then Tenant's Representative shall be reduced to five percent (5%); provided, however that if at not withhold approval of any time thereafter, in Lender's reasonable judgment, ensuing Draw Request on the Improvements are no longer satisfactorily progressing, basis of such missing unconditional lien waiver otherwise satisfying the retainage will, from and after the next disbursement after notice thereof from Lender setting forth the reasons for its determination, unless satisfactory progress is subsequently restored, be ten percent (10%)foregoing requirements; provided, however, that if a the foregoing shall not make Tenant liable for any disputed amount in excess of the amount approved by Tenant for payment in accordance with the Draw Request shall have been submitted prior to Borrower's receipt of by landlord in connection with such notice, then the increase in retainage will be postponed until the following disbursementdisputed amount. Notwithstanding the foregoing, if such disbursement would cause the total amount disbursed under the Loan, including accrued interest thereon, to exceed the Maximum Loan Amount, Lender shall only disburse such amount that, when added to the total amount of the Loan previously disbursed The Contractor and all interest accrued but unpaidsubcontractors and, will increase the Loan balance laborers used by Landlord in connection with Tenant Improvements shall be known collectively as "Landlord's Agents." All contracts entered into by Landlord with Landlord's Agents ("Landlord Agent Contracts") shall be subject to equal the Maximum Loan Amount. Despite any other provisions of this or any other Loan DocumentsTenant's reasonable approval, Borrower may submit Draw Requests to Lender no more frequently than once each monthprovided, however, unless Lender has given its prior written consent an approval process is otherwise expressly set forth in each instancethe Tenant Work Letter, Tenant shall respond to any request for Tenant approval to any Landlord Agent Contract in a timely manner so as not to delay the Project Schedule.
Appears in 1 contract
Samples: Sorrento Summit (Nuvasive Inc)
Draw Requests. Before In connection with a request for each Additional Advance, Borrower shall submit to Lender becomes obligated to make any disbursementand Construction Consultant a draw request (each, it must receive a written request signed by Borrower using “Draw Request”) substantially in the form attached hereto as EXHIBIT Q required pursuant to Section 2.1.5(b) not less than ten ("DRAW REQUEST"), which 10) Business Days (but not more than sixty (60) days) prior to the applicable Advance Date; provided that there shall be no more than one Draw Request shall be sent to Lender at the address set forth in Section 8.3 hereof, accompanied by such documentation for Approved Project Expenditures and information set forth in Sections 2.1(a) and (b) above, and Section 2.1(c) in the case of the final disbursement, or as otherwise requested by Lender. All such documentation and information must be acceptable in form and substance to Lender in the exercise of its reasonable judgment. In the event the no more than one Draw Request is so approved, Lender for Interest and Carry Cost in each calendar month. Each Draw Request for Approved Project Expenditures shall disburse directly to Borrower specify the Hard Costs (or directly to General Contractor if Borrower so requests) such Loan funds equal to (a) the sum due pursuant to the Draw Request, to the extent that such sum is in the Budget (or a modification thereof which is approved in writing by Lender, in accordance with the reasonability standard set forth above), less (b) ten percent (10%) thereof to be retained by Lender until final payment shall be due and owing, provided, however, that subsequent to completion of fifty percent (50%) of not exceed the value of work in place and Stored Materials as supported by invoices and other supporting documentation, as reasonably approved by Construction Consultant, less any Retainage), including deposits paid to any Contractor or Trade Contractor, and Soft Costs (including deposits required to be paid pursuant to any agreement covering Soft Costs)) and Interest and Carry Costs to be paid from the Improvements, if in Lender's and Borrower's judgement, proceeds of the Improvements are satisfactorily progressing and such progress continues, requested Additional Advance. No Additional Advance with respect to the future retainage payment of any Advance Item constituting Approved Project Expenditure shall be reduced to five percent requested or advanced (5%); provided, however that if at any time thereafter, in Lender's reasonable judgment, the Improvements are no longer satisfactorily progressing, the retainage will, from and after the next disbursement after notice thereof from Lender setting forth the reasons x) for its determination, unless satisfactory progress is subsequently restored, be ten percent (10%); provided, however, that if a Draw Request shall have been submitted prior to Borrower's receipt of such notice, then the increase in retainage will be postponed until the following disbursement. Notwithstanding the foregoing, if such disbursement would cause the total amount disbursed under the Loan, including accrued interest thereon, to exceed the Maximum Loan Amount, Lender shall only disburse such an amount that, when added together with the amount of Additional Advance with respect to the total amount payment of all other Advance Items constituting Approved Project Expenditure then being requested hereunder and under the Mortgage Loan previously disbursed and all interest accrued but unpaidAgreement, will increase is less than $150,000 (other than the Loan balance last requested Additional Advance with respect to equal the Maximum Loan Amount. Despite any other provisions of this such Advance Item if less) or any other Loan Documents, Borrower may submit Draw Requests to Lender no (y) more frequently than once each in any calendar month. Each Draw Request in connection with an Additional Advance for the payment of Hard Costs shall specify the amount of any Retainage previously withheld and which has then become payable by Borrower, unless Lender has given its prior written consent with supporting documentation describing in each instance.reasonable detail the basis for any such disbursements. All Draw Requests shall be approved by Lender, not to be unreasonably withheld, and, with respect to Hard Costs, reasonably approved for payment by Construction Consultant. (b)
Appears in 1 contract
