{"id":40921,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/construction-loan-agreement-ferry-building-investors-llc-ferry.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"construction-loan-agreement-ferry-building-investors-llc-ferry","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/construction-loan-agreement-ferry-building-investors-llc-ferry.html","title":{"rendered":"Construction Loan Agreement – Ferry Building Investors LLC, Ferry Building Associates LLC, WEO-Ferry Building LLC and Riverside Finance Co. LLC"},"content":{"rendered":" FIRST AMENDMENT\n TO\n CONSTRUCTION LOAN AGREEMENT, DEED OF TRUST\n AND\n OTHER LOAN DOCUMENTS\n\n This FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT, DEED OF TRUST AND\nOTHER LOAN DOCUMENTS (this \"Amendment\") is entered into as of April 25, 2002\n(\"Amendment Effective Date\") by and among FERRY BUILDING INVESTORS, LLC, a\nCalifornia limited liability company (\"Borrower\"), FERRY BUILDING ASSOCIATES,\nLLC, a California limited liability company (\"Associates\"), WEO-FERRY BUILDING,\nLLC, a Delaware limited liability company (\"Project Entity\"), and RIVERSIDE\nFINANCE COMPANY, L.L.C., a Delaware limited liability company (\"Lender\").\n\n RECITALS:\n\n A. Reference is made to that certain Construction Loan Agreement made by\nand between Lender and Borrower dated as of December 31, 2001 (the \"Original\nLoan Agreement\"). All capitalized and undefined terms used in this Amendment\nshall have the meanings given to them in the Loan Agreement.\n\n B. Reference is made to the Deed of Trust, which was recorded in the\nOfficial Records of the City and County of San Francisco (the \"Official\nRecords\") on December 31, 2001 as Instrument No. 2001H081159.\n\n C. By this Amendment, Lender, Associates, the Project Entity and Borrower\namend the Original Loan Agreement and the other Loan Documents, effective as of\nthe Amendment Effective Date, on the terms and subject to the conditions of this\nAmendment.\n\n NOW, THEREFORE, the parties hereto hereby agree to amend the Loan\nDocuments as follows:\n\n 1. Definitions. The following definitions are hereby deleted in their\nentirety from the Original Loan Agreement and replaced with the following.\n\n \"Development and Management Agreements\" - means, collectively, (i) the\nDevelopment Co-Management Agreement between James D. Jefferson, dba The\nJefferson Company, and Borrower dated as of September 15, 1999, (ii) the\nDevelopment Co-Management Agreement between Wilson\/Meany, LLC and Borrower,\ndated as of August 1, 1999, as amended, (iii) the Development Management\nAgreement between WEO and Borrower dated June 20, 2000, or any other substitute\nor additional contract for \n\ndevelopment management, property management and\/or brokerage services for the\nProperty, and any amendment thereof, in each case, that has been approved by\nLender.\n\n \"Disbursement Budget\" - means the design and construction budget for the\nImprovements, as approved by Lender from time to time.\n\n \"EOP Project Investor\" - means EOP - Ferry Building Investor, L.L.C., a\nDelaware limited liability company.\n\n \"Loan\" - means the principal sum that Lender agrees to lend and Borrower\nagrees to borrow pursuant to the terms and conditions of this Agreement: SIXTY\nMILLION, EIGHT HUNDRED EIGHTY-TWO THOUSAND, EIGHT HUNDRED NINETY-SIX AND\nNO\/100THS DOLLARS ($60,882,896).\n\n \"Maturity Date\" - means the earliest to occur of (i) February 27, 2004,\n(ii) the date that is one hundred eighty days (180) days after the date that\neither of the \"B Unit\" or the \"C Unit\" (with each of such quoted terms defined\nas provided in the Operating Agreement of Project Entity) is transferred to the\nEOP Project Investor or any person or entity controlling, controlled by or under\ncommon control with the EOP Project Investor; and (iii) the date on which all\ninterests of WEO in the Project Entity are sold or otherwise transferred to any\nperson or entity that does not control, is not controlled by or is not under\ncommon control with either the EOP Project Investor or WEO.\n\n \"Required Equity Contribution\" - means THIRTY-TWO MILLION, SEVEN HUNDRED\nEIGHTY-THREE THOUSAND, NINETY-EIGHT AND NO\/100THS DOLLARS ($32,783,098).\n\n 2. Amendment of Maximum Amount of Loan Throughout Loan Documents. In each\nplace in each of the Loan Documents where the amount of the Loan is set forth as\nbeing FIFTY-FIVE MILLION, NINE HUNDRED THOUSAND AND NO\/100THS DOLLARS\n($55,900,000), such amount is here by stricken and replaced with the following:\nSIXTY MILLION, EIGHT HUNDRED EIGHTY-TWO THOUSAND, EIGHT HUNDRED NINETY-SIX AND\nNO\/100THS DOLLARS ($60,882,896).\n\n 3. Required Equity Contribution as Condition to Disbursement. The parties\nacknowledge that Borrower has not yet invested the full amount of the Required\nEquity Contribution into the acquisition and development of the Property and\nImprovements because \"Investor\" (as defined in the Operating Agreement of\nBorrower) has not yet contributed a certain portion (the \"Future Investor\nContribution\") of the total equity that Investor is required to contribute under\nsuch Operating Agreement. Notwithstanding the foregoing and the provisions of\nSection 3.1(e) of the Original Loan Agreement to the contrary, Borrower will be\ndeemed to have invested the Future Investor Contribution for purposes of\nsatisfying the condition set forth in such Section 3.1(e) and Lender shall make\ndisbursements of the Loan as though Borrower has made the full Required Equity\nContribution; provided, however, that Lender shall not be obligated to make\n\n\n -2-\n\ndisbursements under the Loan to the extent that the ratio of (a) disbursed\nproceeds of the Loan to (b) equity invested by Borrower in the acquisition and\ndevelopment of the Property and Improvements (disregarding any portion of the\nFuture Investor Contribution that remains uncontributed as of the date of such\ndetermination), in each case, as of the date of determination, exceeds\n1.85714:1.0 (i.e., for every $1.00 in equity actually invested by Borrower, the\nLender shall only be obligated to advance $1.85714 in Loan proceeds). If, at any\ntime, the Investor fails to remain obligated and reasonably likely, in the\nreasonable discretion of Lender, to make some or all of the then-remaining\nFuture Investor Contribution (the \"Failed Investor Contribution\"), then for\npurposes of such Section 3.1(e) Borrower no longer shall be deemed to have\ninvested that portion of the Future Investor Contribution equal to the Failed\nInvestor Contribution, and Lender shall not be obligated to make further\ndisbursements under the Loan until Borrower has invested an amount equal to the\nFailed Investor Contribution.\n\n 4. Pre-Closing Loan Disbursements. Attached to this Amendment as Exhibit B\nand incorporated into the Agreement by this reference is a schedule of advances\nthat were made by Lender to Borrower prior to the date of the closing of the\nLoan. Notwithstanding the fact that such advances occurred prior to the date of\nthe closing of the Loan, Lender and Borrower hereby agree that each of such\nadvances shall be treated as if it were a disbursement of proceeds of the Loan\nunder and subject to the provisions of the Loan Documents, in each case, as of\nthe date of each such advance. In addition, the first sentence of the Section 1\nof the Note is hereby deleted in its entirety and replaced with the following:\n\"As used in this Note, each interest period (each an \"INTEREST PERIOD\") shall be\nthe period of one month commencing on the date of this Note, or if earlier, the\ndate of the initial advance of funds evidenced by this Note, as shown in Exhibit\nB of the first amendment to the Loan Agreement (provided, however, that the\nfirst Interest Period shall commence on such date and shall end on the last day\nof the next following calendar month), and each one month period thereafter,\ncommencing, in each case, on the first day following the expiration of the\nimmediately preceding Interest Period.\"\n\n 5. Exhibits C and D. Exhibits C and D to the Original Loan Agreement are\nhereby deleted in their entirety and replaced with Exhibits C and D to this\nAmendment, which are incorporated into the Agreement by this reference.\n\n 6. Confirmation of Guaranties. Each of Associates and the Project Entity\nhereby reconfirms its repayment guaranty in favor of Lender, as well as the\nother Loan Documents related thereto, notwithstanding the effect of this\nAmendment upon any of the Loan Documents.\n\n 7. Errata. In Section 4.2 of each of the Deed of Trust and the deed of\ntrust made by Associates securing Associates' repayment guaranty, \"7.11\" is\nhereby deleted and replaced with \"7.12\". In addition, the following is hereby\nadded to the end of Section 11.1(b) of the Original Loan Agreement: \"; or a\ndefault by Borrower (following any applicable notice and cure period) under any\nof the Other Related Documents\". \n\n\n -3-\n\nSection 1.2 of the Original Loan Agreement is hereby deleted in its entirety and\nreplaced with the following:\n\n 1.2 EXHIBITS A, B, C, D, E and F, all attached hereto, are hereby\n incorporated into this Agreement.\n\n 8. Miscellaneous. This Amendment is effective as of the Amendment\nEffective Date. Each of the Loan Documents, as originally executed by the\napplicable parties (including, without limitation, the Original Loan Agreement)\nshall remain in full force and effect, except as expressly otherwise provided in\nthis Amendment. As used in this Amendment and in the Original Loan Agreement,\nthe term \"Agreement\" shall mean the Original Loan Agreement, as modified by this\nAmendment, and each reference to each of the other Loan Documents shall\nhereafter refer to the applicable Loan Document, as amended by this Amendment.\nThis Amendment may be executed in two or more counterparts, each of which shall\nbe an original, and all of which together shall constitute one original of this\nAmendment. A memorandum of this Amendment shall be recorded in the Official\nRecords promptly following the execution and delivery hereof in the form\nattached to this Amendment as Exhibit A.\n\n IN WITNESS WHEREOF, the parties to this Amendment do hereby execute and\ndeliver this Amendment as of the date first written above, but effective as of\nthe Amendment Effective Date.\n\n [SIGNATURES COMMENCE ON FOLLOWING PAGE]\n\n\n -4-\n\n \"Lender\"\n\n Riverside Finance Company, L.L.C.,\n a Delaware limited liability company\n\n By: EOP Operating Limited Partnership,\n a Delaware limited partnership,\n its sole member\n\n By: Equity Office Properties Trust,\n a Maryland real estate investment trust,\n its general partner\n\n By: \/s\/ Robert J. Winter, Jr.\n --------------------------------------------\n\n Name: Robert J. Winter, Jr.\n ------------------------------------------\n\n Title: Senior Vice President - Development \n Investments \n -----------------------------------------\n\n \"Borrower\"\n\n Ferry Building Investors, LLC,\n a California limited liability company\n\n By: WEO - Ferry Building, LLC,\n a Delaware limited liability company,\n its Manager and Class A Member\n\n By: Wilson\/Equity Office, LLC,\n a Delaware limited liability company,\n its Manager\n\n By: Wilson Investors - California, LLC,\n a Delaware limited liability company, \n its Manager\n\n By: \/s\/ Thomas P. Sullivan\n ----------------------------------------\n Thomas P. Sullivan\n --------------------------------------------\n Its: Manager\n\n [SIGNATURES CONTINUED ON FOLLOWING PAGE]\n\n\n -5-\n\n \"Associates\"\n\n Ferry Building ASSOCIATEs, LLC,\n a California limited liability company\n\n By: WEO - Ferry Building, LLC,\n a Delaware limited liability company,\n its Manager and Class A Member\n\n By: Wilson\/Equity Office, LLC,\n a Delaware limited liability company,\n its Manager\n\n By: Wilson Investors - California, LLC,\n a Delaware limited liability company, \n its Manager\n\n By: \/s\/ Thomas P. Sullivan\n Thomas P. Sullivan\n Its: Manager\n\n\n \"Project Entity\"\n\n WEO - FERRY BUILDING, LLC,\n a Delaware limited liability company\n\n By: Wilson\/Equity Office, LLC,\n a Delaware limited liability company,\n its Manager\n\n By: Wilson Investors - California, LLC,\n a Delaware limited liability company,\n its Manager\n\n By: \/s\/ Thomas P. Sullivan\n --------------------------------------------\n Thomas P. Sullivan, Manager\n\n\n -6-\n\n EXHIBIT A\n\n FORM OF MEMORANDUM\n\nRECORDING REQUESTED BY\nAND WHEN RECORDED MAIL TO:\n\nHeller Ehrman White & McAuliffe LLP\n333 Bush Street\nSan Francisco, California 94104\nAttn: Philip H. Ebling, Esq.\n\n================================================================================\n\n MEMORANDUM OF FIRST AMENDMENT TO CONSTRUCTION LOAN\n AGREEMENT, DEED OF TRUST AND OTHER LOAN DOCUMENTS\n\n THIS MEMORANDUM OF FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT,\nDEED OF TRUST AND OTHER LOAN DOCUMENTS (\"Memorandum\") is made as of April 25,\n2002, by and among FERRY BUILDING INVESTORS, LLC, a California limited liability\ncompany (\"Borrower\"), FERRY BUILDING ASSOCIATES, LLC, a California limited\nliability company (\"Associates\"), WEO-FERRY BUILDING, LLC, a Delaware limited\nliability company (\"Project Entity\"), and RIVERSIDE FINANCE COMPANY, L.L.C., a\nDelaware limited liability company (\"Lender\").\n\n RECITALS\n\n A. Reference is made to that certain Construction Loan Agreement\nmade by and between Lender and Borrower dated as of December 31, 2001 (the\n\"Original Loan Agreement\"). All capitalized and undefined terms used in this\nAmendment shall have the meanings given to them in the Loan Agreement.\n\n B. Reference is made to the Deed of Trust, which was recorded in the\nOfficial Records of the City and County of San Francisco (the \"Official\nRecords\") on December 31, 2001 as Instrument No. 2001H081159.\n\n C. Reference is made to that certain Deed of Trust with Absolute\nAssignment of Leases and Rents, Security Agreement and Fixture Filing of even\ndate herewith executed by Associates, as Trustor, to Stewart Title Guaranty\nCompany, as Trustee, for the benefit of Lender, as Beneficiary (the \"Associates\nDeed of Trust\"), which was recorded in the Official Records on December 31, 2002\nas Instrument No. 2001H081160, the lien of which secures the obligations of\nAssociates under a repayment guaranty in favor of Lender.\n\n D. Reference is made to that certain off record First Amendment to\nConstruction Loan Agreement, Deed Of Trust and Other Loan Documents dated as of\nthe date of this Memorandum by and among the parties to this Memorandum (the\n\"First Amendment\").\n\n NOW, THEREFORE, the parties agree as follows:\n\n 1. Each of Borrower, Associates, Project Entity and Lender hereby\nagrees to the amendment of, and hereby so amends, each of the Loan Documents,\nincluding, without limitation, each of the Deed of Trust and the Associates Deed\nof Trust, on the terms and subject to the conditions set forth in the First\nAmendment.\n\n 2. This Memorandum shall be binding on and inure to the benefit of\nthe parties hereto and their heirs, executors, administrators, successors and\nassigns.\n\n 3. This Memorandum may be executed in any number of counterparts,\neach of which when executed and delivered will be deemed to be an original and\nall of which, taken together, will be deemed to be one and the same instrument.\n\n IN WITNESS WHEREOF, the parties hereto have executed this Memorandum\nas of the date first above written.\n\n \"Lender\"\n\n Riverside Finance Company, L.L.C.,\n a Delaware limited liability company\n\n By: EOP Operating Limited Partnership,\n a Delaware limited partnership,\n its sole member\n\n By: Equity Office Properties Trust,\n a Maryland real estate investment trust,\n its general partner\n\n\n By:______________________\n\n Name:____________________\n\n Title:_____________________\n\n [SIGNATURES CONTINUED ON FOLLOWING PAGE]\n\n\n -2-\n\n \"Borrower\"\n\n Investors, LLC,\n a California limited liability company\n\n By: WEO - Ferry Building, LLC,\n a Delaware limited liability company,\n its Manager and Class A Member\n\n By: Wilson\/Equity Office, LLC,\n a Delaware limited liability company,\n its Manager\n\n By: Wilson Investors - California, LLC,\n a Delaware limited liability company, \n its Manager\n\n By: ___________________________________\n Thomas P. Sullivan\n Its: Manager\n\n [SIGNATURES CONTINUED ON FOLLOWING PAGE]\n\n\n -3-\n\n \"Associates\"\n\n ASSOCIATEs, LLC,\n a California limited liability company\n\n By: WEO - Ferry Building, LLC,\n a Delaware limited liability company,\n its Manager and Class A Member\n\n By: Wilson\/Equity Office, LLC,\n a Delaware limited liability company,\n its Manager\n\n By: Wilson Investors - California, LLC,\n a Delaware limited liability company, \n its Manager\n\n\n By: ___________________________________\n Thomas P. Sullivan\n Its: Manager\n\n\n \"Project Entity\"\n\n WEO - FERRY BUILDING, LLC,\n a Delaware limited liability company\n\n By: Wilson\/Equity Office, LLC,\n a Delaware limited liability company,\n its Manager\n\n By: Wilson Investors - California, LLC,\n a Delaware limited liability company,\n its Manager\n\n\n By:\n Thomas P. Sullivan, Manager\n\n\n -4-\n\nState of California\n\nCounty of San Francisco\n\n On _______________, before me, __________________________,\npersonally appeared ________________________, personally known to me (or proved\nto me on the basis of satisfactory evidence) to be the person(s) whose name(s)\nis\/are subscribed to the within instrument and acknowledged to me that\nhe\/she\/they executed the same in his\/her\/their authorized capacity(ies) and that\nby his\/her\/their signature(s) on the instrument, the person(s), or the entity\nupon behalf of which the person(s) acted, executed the instrument.\n\n WITNESS my hand and official seal.\n\n\n\n --------------------------------\n Notary's Signature\n\n\n\nState of California\n\nCounty of San Francisco\n\n On _______________, before me, __________________________,\npersonally appeared ________________________, personally known to me (or proved\nto me on the basis of satisfactory evidence) to be the person(s) whose name(s)\nis\/are subscribed to the within instrument and acknowledged to me that\nhe\/she\/they executed the same in his\/her\/their authorized capacity(ies) and that\nby his\/her\/their signature(s) on the instrument, the person(s), or the entity\nupon behalf of which the person(s) acted, executed the instrument.\n\n WITNESS my hand and official seal.\n\n\n\n --------------------------------\n Notary's Signature\n\nState of California\n\nCounty of San Francisco\n\n On _______________, before me, __________________________,\npersonally appeared ________________________, personally known to me (or proved\nto me on the basis of satisfactory evidence) to be the person(s) whose name(s)\nis\/are subscribed to the within instrument and acknowledged to me that\nhe\/she\/they executed the same in his\/her\/their authorized capacity(ies) and that\nby his\/her\/their signature(s) on the instrument, the person(s), or the entity\nupon behalf of which the person(s) acted, executed the instrument.\n\n WITNESS my hand and official seal.\n\n\n\n --------------------------------\n Notary's Signature\n\n\n\nState of California\n\nCounty of San Francisco\n\n On _______________, before me, __________________________,\npersonally appeared ________________________, personally known to me (or proved\nto me on the basis of satisfactory evidence) to be the person(s) whose name(s)\nis\/are subscribed to the within instrument and acknowledged to me that\nhe\/she\/they executed the same in his\/her\/their authorized capacity(ies) and that\nby his\/her\/their signature(s) on the instrument, the person(s), or the entity\nupon behalf of which the person(s) acted, executed the instrument.\n\n WITNESS my hand and official seal.\n\n\n\n --------------------------------\n Notary's Signature\n\n EXHIBIT B\n\n PRE-CLOSING LOAN DISBURSEMENTS\n\n<\/pre>\n
\n\n DATE OF ADVANCE AMOUNT OF ADVANCE
\n ————— —————–
\n
\n 02\/28\/01 2,047,325.07
\n 03\/22\/01 1,039,469.83
\n 04\/06\/01 620,189.89
\n 04\/10\/01 1,750,000.00
\n 04\/10\/01 695,691.32
\n 04\/25\/01 1,482,239.66
\n 04\/27\/01 (2,560.00)
\n 05\/25\/01 1,993,663.40
\n 06\/25\/01 1,748,243.27
\n 07\/25\/01 1,685,129.47
\n 08\/27\/01 2,014,180.85
\n 09\/25\/01 2,426,770.01
\n 10\/25\/01 1,926,546.10
\n 11\/28\/01 1,878,613.91
\n =================
\n $ 21,305,502.77
\n<\/c><\/s><\/caption>\n<\/table>\n EXHIBIT C<\/p>\n
FINANCIAL REQUIREMENT ANALYSIS<\/p>\n
The Financial Requirement Analysis set forth herein represents an analysis
\nof the total costs necessary in Borrower’s estimation to perform Borrower’s
\nobligations under the Loan Documents.<\/p>\n
FERRY BUILDING – CONSTRUCTION LOAN FORECASTED COSTS<\/p>\n
\n\n Amounts Advanced Additional Amounts
\n Equity Contributed Additional Equity Under Construction To Be Advanced
\n By Borrower Through To Be Contributed Loan Through Under Construction
\nTotal Forecasted Costs(1) 11\/30\/01(2) By Borrower(2) 11\/30\/01 Loan
\n————————- ——————- —————– —————— ——————
\n
\n $93,665,994 $11,472,194 $21,310,904 $21,305,503 $39,577,393
\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n (1) The Total Forecasted Costs shall be updated monthly by Borrower and
\nsubmitted with the following month’s disbursement request, provided that the
\nTotal Cash amount in the Total Forecasted Costs column shall not change, except
\nas expressly permitted in this Agreement.<\/p>\n
(2) Borrower’s Required Equity Contribution in the amount of $32,783,098
\nis reflected in these two columns.<\/p>\n
EXHIBIT D<\/p>\n
DISBURSEMENT PLAN<\/p>\n
A. Timing of Disbursement. Unless another provision of this Agreement
\nspecifies otherwise, on or before the fifteenth (15th) day of each month,
\nBorrower shall submit to:<\/p>\n
Equity Office Properties Trust
\n c\/o Karen Metz
\n Two North Riverside Plaza, Suite 2100
\n Chicago, Illinois 60606
\n Phone : (312) 466-3300
\n Facsimile: (312) 466-3403<\/p>\n
with a copy to:<\/p>\n
PNC Real Estate Finance
\n c\/o Donna Harvey
\n 249 Fifth Avenue, 18th Floor
\n Mail Stop : P1-POPP-18-3
\n Pittsburgh, Pennsylvania 15222
\n Phone: (412) 768-5048
\n Facsimile: (412) 768-5984<\/p>\n
a written itemized statement, signed by Borrower (“Application for Payment”)
\nsetting forth:<\/p>\n
1. A description of the work performed, material supplied and\/or costs
\nincurred or due for which disbursement is requested with respect to any line
\nitem (“Item”) shown in the Disbursement Budget. Notwithstanding the amount of
\nany line item shown in the Disbursement Budget, Borrower may reallocate amounts
\namong the line items by allocating cost savings in any line item to Contingency,
\nand amounts from the Contingency to any line item with a cost overrun; provided,
\nhowever, that the sum of (i) the Required Equity Contribution plus (ii) the
\naggregate amount of all disbursements under the Loan shall not exceed Total
\nForecasted Costs; and<\/p>\n
2. The total amount incurred, expended and\/or due for each requested Item
\nless prior disbursements.<\/p>\n
Each Application for Payment by Borrower shall constitute a representation and
\nwarranty by Borrower that Borrower is in compliance with all the conditions
\nprecedent to a <\/p>\n
disbursement specified in this Agreement. With respect to Borrower’s remaking of
\nthe representations and warranties set forth in Article 6 of this Agreement on
\nthe date of submission of each Application for Payment, to the extent
\ncircumstances have changed for reasons beyond the reasonable control of Borrower
\nsuch that Borrower must qualify such representations and warranties as of the
\ndate of delivery of any such Application for Payment, such qualification, to the
\nextent it renders the applicable representation materially untrue or breaches
\nthe applicable warranty, shall merely be a failure of condition to Lender’s
\nobligation to disburse funds under the provisions of this EXHIBIT D, as opposed
\nto constituting an Event of Default.<\/p>\n
B. Lender’s Right to Condition Disbursements. Lender shall have the right
\nto condition any disbursement upon Lender’s receipt in the appropriate form of
\nthe following submissions and Lender’s reasonable determination that such
\nsubmissions comply with the requirements set forth below:<\/p>\n
1. The Application for Payment and an itemized requisition for payment;<\/p>\n
2. Bills, invoices, documents of title, vouchers, statements, receipts and
\nany other documents evidencing the total amount expended, incurred or due for
\nany requested Items;<\/p>\n
3. Evidence of Borrower’s use of a lien release, joint check and voucher
\nsystem acceptable to Lender for payments or disbursements to any contractor,
\nsubcontractor, materialman, supplier or lien claimant;<\/p>\n
4. Architect’s, inspector’s and\/or engineer’s periodic certifications of
\nthe percentage and\/or stage of construction that has been completed and its
\nconformance to the Plans and Specifications and governmental requirements based
\nupon any such architect’s, inspector’s and\/or engineer’s periodic physical
\ninspections of the Property and Improvements;<\/p>\n
5. Waivers and releases of any mechanics’ lien, stop notice claim,
\nequitable lien claim or other lien claim rights (conditional for costs to be
\npaid from the current Application for Payment, and unconditional for all prior
\ncosts which have been disbursed by Lender by the twenty-fifth (25th) day of the
\nimmediately preceding month or were to have been paid from Borrower’s own funds
\nunder the Disbursement Budget);<\/p>\n
6. Reasonable evidence of Borrower’s compliance with the provisions of the
\nSections of this Agreement entitled CONSTRUCTION and AUTHORITY\/ENFORCEABILITY.
\nWhere this Agreement calls for the delivery of a certificate as evidence of any
\naction, such certificate, if factually accurate, shall constitute such
\nreasonable evidence;<\/p>\n
7. A written release executed by any surety to whom Lender has issued or
\nwill issue a set-aside letter and\/or any public entity or agency which is a
\nbeneficiary under any <\/p>\n
-2-<\/p>\n
instrument of credit, set-aside letter or standby letter of credit which Lender
\nhas issued or will issue with respect to the Loan;<\/p>\n
8. For final payment only with respect all or any separate, independent
\nportion of the Improvements, valid, recorded Notice(s) of Completion for the
\nImprovements or any portions of the Improvements for which Notice(s) of
\nCompletion may be recorded under applicable law, and final payment lien release
\nwaivers (conditional with respect to costs to be paid from such final payment,
\nand unconditional for all other costs);<\/p>\n
9. Certificate of Substantial Completion from the Architect and Engineer,
\nif any, prior to the final retention disbursement;<\/p>\n
10. Any other document, requirement, evidence or information that Lender
\nmay have reasonably requested under any provision of the Loan Documents at least
\nthirty (30) days prior to the Application for Payment in question; and<\/p>\n
11. Except with respect to items covered under #12 and #13 below, evidence
\nthat any goods, materials, supplies, fixtures or other work in process for which
\ndisbursement is requested have been incorporated into the Improvements.<\/p>\n
12. In the event any Application for Payment includes the cost of
\nmaterials stored at a location other than the Property (“Offsite Materials”),
\neach of the following: (a) evidence that the Offsite Materials have been
\npurchased by Borrower, have been segregated from other materials in the facility
\nand have been appropriately marked to indicate Borrower’s ownership thereof and
\nLender’s security interest therein; and (b) evidence that the Offsite Materials
\nare insured as required by this Agreement.<\/p>\n
13. In the event that any Application for Payment includes the cost of
\nmaterials stored on the Property (“Onsite Materials”), each of the following:
\n(a) evidence that the Onsite Materials have been purchased for or by Borrower;
\n(b) evidence that the Onsite Materials are insured as required hereunder; and
\n(c) evidence that the Onsite Materials are stored in an area on the Property for
\nwhich adequate security is provided against theft and vandalism.<\/p>\n
Borrower acknowledges that this approval process may result in disbursement
\ndelays and Borrower hereby consents to all such delays; provided, however, that
\nLender shall use commercially reasonable efforts to respond to all requests for
\napproval within the time periods designated in this Agreement.<\/p>\n
C. Periodic Disbursement of Construction Costs, Site Work Costs and
\nOffsite Costs. As construction progresses, the amount of the retention as
\nprovided under any construction contract to which Borrower is a party (the
\n“Retention”) shall be disbursed into the Account or to or for the benefit or
\naccount of the Borrower, Property or Improvements upon Borrower’s delivery to
\nLender of (1) the applicable lien releases<\/p>\n
-3-<\/p>\n
specified above in Paragraph B.8 of this EXHIBIT D, (2) the applicable
\ncertificate specified above in Paragraph B.9 of this EXHIBIT D and (3) solely
\nwith respect to the Construction Contract, a duly issued temporary certificate
\nof occupancy for the Improvements and completion of the Improvements in
\naccordance with the Plans and Specifications.<\/p>\n
D. Partial Disbursements. No disbursement shall be made for a particular
\nApplication for Payment unless all required supporting materials are included
\nfor Items totaling at least sixty-five percent (65%) of the total amount of
\nfunds requested thereunder. Subject to the foregoing, to the extent that an
\nunconditional lien release and waiver for an Item that was included in a prior
\ndisbursement is not delivered to Lender prior to the date that Lender approves
\nthe subsequent disbursement, Lender may withhold from the then current approved
\ndisbursement an amount equal to one hundred fifty percent (150%) of the amount
\nfor the Item(s) which had been previously funded. Thereafter, such withheld
\namount shall be disbursed as part of the next ensuing disbursement upon Lender’s
\nreceipt of the missing unconditional lien release and waiver.<\/p>\n
E. Timing of Disbursements. Lender shall exercise diligent and good faith
\nefforts to disburse funds for all approved Items in any Application for Payment
\nwithin the applicable Lender Payment Turnaround Period.<\/p>\n
-4-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7468],"corporate_contracts_industries":[9489],"corporate_contracts_types":[9560,9567],"class_list":["post-40921","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-equity-office-properties-trust","corporate_contracts_industries-real__reits","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40921","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40921"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40921"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40921"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40921"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}