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EXHIBIT 10.116
BUILDING LOAN AGREEMENT
THIS BUILDING LOAN AGREEMENT (this "Agreement") is made and entered into
this 14th day of January, 2000, by and between KEY CORPORATE CAPITAL INC., a
Michigan corporation with an office for the transaction of business at 127
Public Square, 6th Floor, Cleveland, Ohio 44114 (the "Lender"), and CLINTON
BROOKSIDE DRIVE, LLC, a New York limited liability company with an office for
the transaction of business at 250 South Clinton Street, Syracuse, New York
13202 (the "Borrower").
W I T N E S S E T H:
WHEREAS, the Lender is about to make a loan (the "Loan") to Borrower in
an amount not to exceed $3,300,000.00 (the "Loan Amount") for the purposes of
developing a facility in Clinton, New York; and
WHEREAS, of the Loan Amount, up to $2,299,578.00 is to be advanced by
Lender to Borrower pursuant to this Agreement and the balance of the Loan Amount
is to be advanced by Lender to Borrower pursuant to the terms of a Development
Agreement between the Lender and the Borrower of even date herewith.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE 1
TERMS AND DEFINITIONS
In addition to the other terms hereinafter defined, the following terms
shall have the meanings set forth in this Article. References to documents and
other materials shall include those documents and materials as they may be
revised, amended and modified, from time to time, with the prior written
approval of Lender.
1.1 ADVANCE. "Advance" means any disbursement of the proceeds of
the Loan by Lender pursuant to the terms of this Agreement.
1.2 APPROVAL. "Approval", "Approved", "approval" or "approved"
means, as the context so determines, an approval in writing given to the party
seeking approval after full and fair disclosure to the party giving approval of
all material facts necessary in order to determine whether approval should be
granted.
1.3 ARCHITECT'S CONTRACT. "Architect's Contract" means the
contract, dated September 17, 1998, between BCI Construction, Inc. (which in the
Architect's Contract is erroneously referred to as BCI/ALS, Inc., a non-existent
entity) and Borrower's Architect as assigned to Borrower pursuant to an
assignment dated ________ __, ___ between BCI Construction, Inc. and Borrower.
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1.4 BORROWER'S ARCHITECT. "Borrower's Architect" means Eppstein
Uhen, whose address is 210 East Michigan Street, Milwaukee, Wisconsin
53202-0728.
1.5 COMPLETION DATE. "Completion Date" means January 1, 2002.
1.6 COMMITMENT. "Commitment" means, collectively, (a) the
commitment letter for the Loan issued by Lender to ALS-Northeast, LLC dated
December 28, 1999, and (b) the master loan commitment issued by Lender to
ALS-Northeast, LLC dated May 5, 1998 and accepted by ALS - Northeast, LLC on May
6, 1998 (the "Master Commitment").
1.7 CONSTRUCTION BUDGET. "Construction Budget" means the budget for
total estimated Property Costs, submitted by Borrower, approved by Lender, and
attached hereto as Exhibit A.
1.8 CONSTRUCTION CONTRACT. "Construction Contract" means the
contract, dated September 30, 1999 between Borrower and Contractor and providing
for the construction of the Improvements on the Land.
1.9 CONSTRUCTION INSPECTOR. "Construction Inspector" means Clough
Harbour & Associates, LLP or at Lender's option either an officer or employee of
Lender or consulting architects, engineers or inspectors appointed by Lender.
1.10 CONSTRUCTION SCHEDULE. "Construction Schedule" means the
schedule, broken down by trade, of the estimated dates of commencement and
completion of the Improvements, submitted by Borrower, approved by Lender and
attached hereto as Exhibit B.
1.11 CONTINGENCY RESERVE. "Contingency Reserve" means the amount(s),
if any, allocated as contingency reserve(s) in the Construction Budget.
1.12 CONTRACTOR. "Contractor" means Central New York Contractors,
Inc., whose address is 250 Clinton Street, Syracuse, New York 13302-1258.
1.13 COSTS OF IMPROVEMENT. "Costs of Improvement" means those items
defined as such under Section 2(5) of the Lien Law.
1.14 DRAW REQUEST. "Draw Request" means, with respect to each
Advance, Borrower's request for such Advance, and documents required by this
Agreement to be furnished to Lender as a condition to such Advance.
1.15 EVENT OF DEFAULT. "Event of Default" means any condition or
event described herein as such.
1.16 GOVERNMENTAL APPROVALS. "Governmental Approvals" means all
approvals, consents, waivers, orders, acknowledgements, authorizations, permits
and licenses required under applicable Requirements to be obtained from any
Governmental Authority for the construction of the Improvements and the use,
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occupancy and operation of the Property following completion of construction of
the Improvements.
1.17 GOVERNMENTAL AUTHORITY. "Governmental Authority" means the
United States of America, the state in which the Land is located and Borrower is
organized, any political subdivision thereof, municipalities in which the Land
is located, and any agency, authority, department, commission, board, bureau, or
instrumentality of any of them.
1.18 GUARANTOR. "Guarantor" means, collectively, Assisted Living
Equities, LLC ("ALE"), with a business address of 250 South Clinton Street,
Syracuse, New York and Alterra Healthcare Corporation ("Alterra"), with a
business address of 10000 Innovation Drive, Milwaukee, Wisconsin 53226
(provided, however, that Guarantor shall mean Alterra once the Limited Recourse
Guaranty dated of even date herewith from ALE is terminated).
1.19 IMPROVEMENTS. "Improvements" means the assisted living facility
to be constructed on the Land in accordance with the Plans and Specifications.
1.20 INDIRECT COSTS. "Indirect Costs" mean and include title
insurance premiums, survey charges, engineering fees, architectural fees, and
all other expenses which are, in accordance with sound accounting practices,
capital expenditures relating to the Property, to the extent shown in Column B
on page 1 of Exhibit A.
1.21 LAND. "Land" means the real property described in Exhibit D
attached hereto.
1.22 LIEN LAW. "Lien Law" means the Lien Law of the State of New
York.
1.23 LOAN. "Loan" means the loan which is the subject of this
Agreement and the Development Agreement.
1.24 LOAN AMOUNT. "Loan Amount" means $3,300,000.
1.25 LOAN DOCUMENTS. "Loan Documents" means collectively, this
Agreement, all documents referred to in Article 2 hereof, and all other
agreements, documents and instruments now or hereafter evidencing, securing or
otherwise relating to the Loan.
1.26. PERMITTED CONTEST. "Permitted Contest" means a good faith
active contest of any taxes, assessment, sewer rates, water rates or sums due by
Borrower provided that (1) the Borrower first shall have notified Lender of such
contest, (2) an Event of Default has not occurred under any of the Loan
Documents, (3) the Borrower shall have set aside reasonable adequate reserves
for any such taxes, assessments and other charges, and (4) the Borrower
demonstrates to the reasonable satisfaction of the Lender that the non-payment
of such items will not subject the lien of the Mortgage as to any part of the
Land, to loss or forfeiture.
1.27 PERMITTED ENCUMBRANCES. "Permitted Encumbrances" means (A)
utility,
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access and other easements, rights of way, restrictions, encroachments and
exceptions that exist on the date hereof and benefit or do not materially impair
the utility or the value of the Improvements, (B) liens for taxes to the extent
being contested as permitted by Section 7 of the Mortgage or not yet delinquent,
(C) any lien on the Property obtained through any of the Loan Documents, (D) any
lien on the Property in favor of the Mortgagee, (E) any lien listed on Exhibit B
of the Mortgage, and (F) any lien permitted by the Lender.
1.28 PERSONAL PROPERTY. "Personal Property" means materials,
furnishings, fixtures, machinery, equipment and all items of tangible and
intangible personal property now or hereafter owned by Borrower, wherever
located, and either (i) to be incorporated into the Improvements, (ii) used in
connection with the construction of the Improvements or (iii) to be used in
connection with the operation of the Land or Improvements or both.
1.29 PLANS AND SPECIFICATIONS. "Plans and Specifications" means the
plans and specifications for the Improvements prepared by Borrower's Architect
and more particularly identified on Exhibit E attached hereto.
1.30 PROPERTY. "Property" means the Land, Improvements and Personal
Property.
1.31 PROPERTY COSTS. "Property Costs" shall mean and include all
costs that will be incurred by Borrower for the items listed in Column B on page
1 of Exhibit A.
1.32 REQUIRED EQUITY FUNDS. "Required Equity Funds" means the sums,
if any, required of Borrower by Lender, to be available to pay the difference
between Property Costs and the amount of the Loan.
1.33 REQUIREMENTS. "Requirements" means any law, ordinance, order,
rule or regulation of any Governmental Authority relating in any way to the
Property or the Borrower.
1.34 TAKING. "Taking" shall mean any condemnation for public use of,
or damage by reason of, the action of any Governmental Authority, or any
transfer by private sale in lieu thereof, either temporarily or permanently.
1.35 TERMINATION DATE. "Termination Date" means the earlier of
January 1, 2002, or such other date as may be set forth herein which fixes the
termination of Lender's obligations to make Advances.
ARTICLE 2
LOAN DOCUMENTS
The following documents have been duly authorized, executed and
delivered to Lender by the parties thereto:
2.1 NOTE. The Secured Promissory Note (the "Note") from Borrower to
Lender, dated as of even date herewith, in the Loan Amount.
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2.2 MORTGAGE AND SECURITY AGREEMENT. The Mortgage and Security
Agreement (the "Mortgage") from Borrower in favor of Lender, dated of even date
herewith, encumbering the Property as security for the Note and any sums in
addition to the Loan Amount advanced by Lender under the other Loan Documents,
which Mortgage is to be recorded in the appropriate public records on or about
the date hereof.
2.3 FINANCING STATEMENTS. Uniform Commercial Code, Form UCC-1
Financing Statements (the "Financing Statements") in favor of Lender giving
notice of a security interest, which Financing Statements are to be filed in the
appropriate public records on or about the date hereof.
2.4 ASSIGNMENT OF CONTRACT DOCUMENTS. The Assignment of Contract
Documents (the "Assignment of Contract Documents") from Borrower in favor of
Lender dated of even date herewith.
2.5 ASSIGNMENT OF RENTS AND LEASES. The Assignment of Rents and
Leases (the "Assignment") from Borrower in favor of Lender dated of even date
herewith which is to be recorded in the appropriate public records on or about
the date hereof.
2.6 GUARANTY. The Guaranty of Payment and Performance (the "ALS
Guaranty") from Alterra in favor of Lender dated of even date herewith.
2.7 LIMITED RECOURSE GUARANTY. The Limited Recourse Guaranty (the
"ALE Guaranty") from ALE in favor of Lender dated of even date herewith.
2.8 INDEMNITY AGREEMENT. The Hazardous Substances Indemnity
Agreement (the "Indemnity Agreement") from Borrower and Guarantor in favor of
Lender dated of even date herewith.
2.9 SECURITY AGREEMENT. The Security Agreement (the "Security
Agreement") from Borrower in favor of Lender dated of even date herewith.
2.10 DEVELOPMENT AGREEMENT. The Development Agreement (the
"Development Agreement") between the Borrower and Lender dated of even date
herewith providing for advancing the balance of the Loan not being advanced
hereunder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower hereby represents and warrants to Lender as follows:
3.1 VALIDITY OF LOAN DOCUMENTS. That the Loan Documents are valid
and legally binding obligations, enforceable in accordance with their respective
terms.
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3.2 Title to Property. That Borrower has fee simple absolute title
to the Land, subject to no liens, security interests, charges or encumbrances in
favor of any person other than Lender and the Permitted Encumbrances, and that
no conditional sale contract, chattel mortgage, security agreement, lease,
financing statement or other title retention agreement has been or will be
executed in favor of any person other than Lender with respect to any of the
Personal Property.
3.3 Absence of Conflicts. That the execution and delivery of the
Loan Documents by Borrower and the performance and observance by Borrower of its
obligations thereunder will not, contravene or result in a breach of (a) if
Borrower purports to be a corporation, any provision of Borrower's corporate
charter or by-laws, or, if Borrower purports to be partnership, any provision of
Borrower's partnership agreement or certificate, or, if Borrower purports to be
a limited liability company, any provision of Borrower's articles of
organization or operating agreement, or (b) any material Requirements, or (c)
any decree or judgement binding on Borrower or (d) any material agreement or
instrument binding on Borrower or any of its property, nor will the same result
in the creation of any lien or security interest under any such agreement or
instrument.
3.4 Pending Litigation. That there are no actions, suits,
investigations or proceedings pending, or, to the knowledge of Borrower,
threatened against Borrower, or the Property, or involving the validity or
enforceability of any of the Loan Documents or the priority of the lien thereof,
or which will materially affect Borrower's ability to repay the Loan, at law or
in equity or before or by any Governmental Authority.
3.5 Violations of Requirements. That Borrower has no knowledge of
any violations or notices of violations of any Requirements which will
materially affect Borrower's ability to repay the Note of use and update the
Improvements.
3.6 Compliance with Requirements. That the Plans and Specifications
and construction of the Improvements pursuant thereto and the use of the
Property contemplated thereby will comply with all material Requirements.
3.7 Organization, Status and Authority.
(a) If Borrower is a corporation, that (i) it is a
corporation duly organized, validly existing and in good standing under
the laws of the state in which it is incorporated, (ii) if required by
the laws of the state in which the Land is located, it is duly qualified
to do business and is in good standing therein, (iii) it has the
corporate power, authority and legal right to own and operate its
properties and assets, carry on the business now being conducted and
proposed to be conducted by it, and to engage in the transactions
contemplated by the Loan Documents, and (iv) the execution and delivery
of the Loan Documents to which it is a party and the performance and
observance of the provisions thereof have been duly authorized by all
necessary corporate actions.
(b) If Borrower is a partnership, that (i) it is duly formed
and validly existing under the laws of the state in which it is formed,
(ii) if required by the
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laws of the state in which the Land is located, it is fully qualified to
do business therein, (iii) it has the power, authority and legal right
to own and operate its properties and assets, to carry on the business
conducted and to engage in the transactions contemplated by the Loan
Documents, and (iv) the execution and delivery of the Loan Documents to
which it is a party and the performance and observance of the provisions
thereof have all been duly authorized by all necessary actions of its
partners.
(c) If Borrower or any member of Borrower is a limited
liability company, that (i) it is a limited liability company duly and
validly existing and in good standing under the laws of the state in
which it is organized, (ii) if required by the laws of the state in
which the Land is located, it is duly qualified to so business therein,
(iii) it has the power, authority and legal right to own and operate its
properties and assets, carry on the business now being conducted and
proposed to be conducted by it, and to engage in the transactions
contemplated by the Loan Documents, and (iv) the execution and delivery
of the Loan Documents to which it is a party and the performance and
observance of the provisions thereof have been duly authorized by all
necessary corporate actions.
3.8 Availability of Utilities. That all utility services reasonably
necessary and sufficient for the construction, development and operation of the
Property for its intended purposes are presently available (or are reasonably
anticipated to be available so as not to materially delay construction of the
Improvements) to the boundaries of the Land through dedicated public rights of
way or through perpetual private easements, approved by Lender, with respect to
which the Mortgage creates a valid, binding and enforceable lien, including, but
not limited to, water supply, storm and sanitary sewer, gas, electric and
telephone facilities, and drainage.
3.9 Condition of Property. That neither the Property nor any
portion thereof is now materially damaged or injured as result of any fire,
explosion, accident, flood or other casualty or has been the subject of any
Taking, and to the knowledge of Borrower, no Taking is pending or contemplated.
3.10 Brokerage Commissions. That any brokerage commissions due in
connection with the transactions contemplated hereby and owned by Borrower have
been paid in full and that any such commissions coming due in the future will be
promptly paid by Borrower. Borrower agrees to and shall indemnify Lender from
any liability, claims or losses arising by reason of any such brokerage
commissions. This provision shall survive the repayment of the Loan and shall
continue in full force and effect so long as the possibility of such liability,
claims or losses exists.
3.11 Financial Statements. That the financial statements of Borrower
previously delivered to Lender are true and correct in all material respects,
have been prepared in accordance with generally accepted accounting principles
consistently applied, and fairly present the financial condition of Borrower as
of the respective dates thereof and the results of its operations for the
periods covered thereby; that no adverse change has occurred in the assets,
liabilities, or financial conditions reflected therein since the respective
dates thereof.
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3.12 Taxes. That all federal, state and other tax returns of
Borrower required by law to be filed have been filed, that except for Permitted
Contests all federal, state and other taxes, assessments and other governmental
charges upon Borrower and its respective properties which are due and payable
have been paid, and that Borrower has set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods for which such return shave been filed.
3.13 Construction Contract. That (i) the Construction Contract is in
full force and effect; (ii) both Borrower and Contractor are in material
compliance with their respective obligations under the Construction Contract;
(iii) the work to be performed by Contractor under the Construction Contract is
the work called for by the Plans and Specifications and all work required to
complete the Improvements substantially in accordance with the Plans and
Specifications is provided for under the Construction Contract; and (iv) all
work on the Improvements shall be completed substantially in accordance with the
Plans and Specifications in a good and workmanlike manner and shall be free of
any material defects.
3.14 Access. That the rights of way for all roads necessary for the
full utilization of the Improvements for their intended purposes have either
been acquired by the Borrower, the appropriate Governmental Authority or have
been dedicated to public use and accepted by such Governmental Authority, and
all such roads shall have been completed, or all reasonably necessary steps
shall have been taken by Borrower and such Governmental Authority to assure the
complete construction and installation thereof prior to the date upon which
access to the Property via such roads will be necessary. All curb cuts, driveway
permits and traffic signals shown on the Plans and Specifications or otherwise
necessary for access to the Property are existing or have been fully approved by
the appropriate Governmental Authority or Borrower has taken all reasonably
necessary steps so that the obtaining of such approvals will not materially
delay the construction of the Improvements.
3.15 No Default. That no Event of Default exists.
3.16 Architect's Contract. That (i) the Architect's Contract is in
full force and effect; and (ii) both Borrower and Borrower's Architect are in
material compliance with their respective obligations under the Architect's
Contract.
3.17 Plans and Specifications. That Borrower has furnished Lender
complete sets of the Plans and Specifications which comply with all material
Requirements, all material Governmental Approvals, and all material
restrictions, covenants and easements affecting the Property, and which have
been approved by such Governmental Authority as is required for construction of
the Improvements.
3.18 Governmental Approvals. That Borrower has obtained all
Governmental Approvals from, and has given all such notices to, and has taken
all such other actions with respect to such Governmental Authority as may be
required under applicable Requirements for the construction of the Improvements
or Borrower has taken all reasonably necessary steps so that the obtaining of
such approvals will not materially delay the construction of the improvements.
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3.19 Construction Budget. That the Construction Budget accurately
reflects all material Property Costs.
3.20 Feasibility. That the Construction Schedule is realistic and
reasonably feasible, and is materially accurate to date.
3.21 Effect of Draw Request. That each Draw Request submitted to
Lender as provided in Article 6 hereof shall constitute an affirmation that the
representations and warranties contained in Article 3 of this Agreement and in
the other Loan Documents remain true and correct as of the date thereof; and
unless Lender is notified to the contrary, in writing, prior to the disbursement
of the requested Advance or any portion thereof, shall constitute an affirmation
that the same remain true and correct on the date of such disbursement.
ARTICLE 4
COVENANTS OF BORROWER
Borrower hereby covenants and agrees with Lender as follows:
4.1 Commitments. To permit no default under the terms of the
Commitment.
4.2 Construction Contract. (i) To permit no material default under
the terms of the Construction Contract, (ii) to waive none of the material
obligations of Contractor thereunder, (iii) to do no act which would relieve
Contractor from its obligations to construct the Improvements substantially in
accordance with the Plans and Specifications, and (iv) to make no material
amendments to or material change orders (as defined in Section 4.11) under the
Construction Contract without the prior approval of Lender.
4.3 Architect's Contract. (i) To permit no material default under
the terms of the Architect's Contract, (ii) to waive none of the material
obligations of Borrower's Architect thereunder, (iii) to do no act which would
relieve Borrower's Architect from its material obligations under the Architect's
Contract, and (iv) to make no material amendments to the Architect's Contract
without the prior approval of Lender.
4.4 Insurance. To obtain insurance or evidence of insurance as
Lender may reasonably require, including, but not limited to, the following:
(a) Title Insurance. A mortgagee title insurance policy
(the "Title Insurance Policy") in an amount, and issued by a title
insurance company (the "Title Insurer") and through a title agent as
shall be approved by insuring a valid first lien upon and security
interest in and to the Property by virtue of the Mortgage, with such
reinsurance or co-insurance agreements as may be reasonably required by
Lender. The Title Insurance Policy shall contain a pending disbursements
clause or endorsement and such other endorsements as Lender may
reasonably require, and such affirmative insurance as Lender may
reasonably require. The Title Insurance Policy, together with evidence
of
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payment of premiums thereon, shall be delivered to Lender on or before
the date of this Agreement.
(b) Insurance Required by Mortgage. Such insurance as may
be required by the Mortgage. If any hazard insurance required by the
Mortgage is obtained as to all or part of the Property before completion
of construction then such policy shall contain an endorsement
recognizing that construction is in progress and agreeing that such
shall not adversely affect the coverage or be asserted as a defense on
any claim under such policy.
(c) Professional Liability Insurance. Evidence or
certificates from insurance companies indicating that Borrower's
Architect, and all other architects and engineers responsible for the
design of the Improvements are covered by professional liability
insurance in an amount of not less than $2,000,000.00 and such evidence
or certificates to be delivered to Lender on or before the date of this
Agreement.
4.5 Application of Loan Proceeds. To use the proceeds of the Loan
solely for the purpose of paying for the Property Costs in accordance with the
terms of this Agreement.
4.6 Property Costs and Expenses. To pay or cause to be paid all
properly incurred Property Costs, regardless of the amount, and to pay all
reasonable costs and expenses of Lender with respect to the financing,
acquisition and construction of the Property, including but not limited to,
appraisal fees, inspection fees, surveying costs, legal fees(including legal
fees incurred by Lender subsequent to the closing of the Loan in connection with
the collection of the Loan), recording expenses, surveys, intangible taxes,
expenses of foreclosure (including attorney's fees) and similar items.
4.7 Commencement and Completion of Construction. To commence
construction of the Improvements within thirty (30) days after the date hereof
and to diligently pursue construction to completion prior to the Completion Date
substantially in accordance with the Plans and Specifications, in material
compliance with all material restrictions, covenants and easements affecting the
Property, all material Requirements, and all material Governmental Approvals,
and with all material terms and conditions of the Loan Documents without
deviation from the Plans and Specifications unless with the prior approval of
Lender and the surety company or companies issuing any Payment and Performance
Bond; to pay all sums and to perform such duties as may be necessary to complete
such construction of the Improvements substantially in accordance with the Plans
and Specifications and in material compliance with all restrictions, covenants
and easements affecting the Property, all material Requirements and all material
Governmental Approvals, and with all material terms and conditions of the Loan
Documents, all of which shall be accomplished on or before the Completion Date,
free from any liens, claims or assessments (actual or contingent) asserted,
except for Permitted Encumbrances, against the Property for any material, labor
or other items furnished in connection therewith. Evidence of satisfactory
compliance with the foregoing shall be furnished by Borrower to Lender on or
before the Completion Date.
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4.8 Right of Lender to Inspect Property. To permit Lender and its
representatives and agents to enter upon the Property at reasonable times upon
reasonable notice and to inspect the Improvements and all materials to be used
in the construction thereof and to reasonably cooperate and cause Contractor to
reasonably cooperate with Lender and its representatives and agents during such
inspections (including making reasonably available to Lender working copies of
the Plans and Specifications together with all related supplementary materials);
provided, however, that this provision shall not be deemed to impose upon Lender
any obligation to undertake such inspections.
4.9 Correction of Defects. Unless Borrower demonstrates to Lender
that such corrective work is inappropriate or inconsistent with the Plans and
Specifications, to promptly correct all material defects in the Improvements or
any material departure from the Plans and Specifications not previously approved
by Lender. Borrower agrees that the advance of any proceeds of the Loan whether
before or after such defects or departures from the Plans and Specifications are
discovered by, or brought to the attention, of Lender, shall not constitute a
waiver of Lender's right to require compliance with this covenant.
4.10 Sign Regarding Construction Financing. At Lender's option and
expense, to erect promptly and maintain on a suitable site on the Land a sign
indicating that construction financing is being provided by Lender, all to the
reasonable satisfaction of Lender; and to prevent the destruction or removal of
said sign without the prior approval of Lender.
4.11 Approval of Change Orders. To permit no material change orders
during construction without the prior approval of Lender and the surety company
or companies issuing any Payment and Performance Bonds. For the purposes of this
Agreement a material change order shall mean a change order which, when added to
any previous change orders, if any, increases the cost of construction by more
than $50,000.00 individually or $200,000.00 in the aggregate and/or causes a
delay in the Completion Date of more than one (1) month.
4.12 Notice of Occupancy. To notify Lender at least ten (10) days
prior to, and again on, the date of occupancy of each tenant of any portion of
the Property (except for residents of the facility), such notice upon occupancy
to include the name of the tenant and the date of occupancy.
4.13 Books and Records. To keep and maintain reasonably complete
proper and accurate books, records and accounts reflecting material items of
material income and expense of Borrower in connection with the Property and the
construction of the Improvements and the results of the operation thereof; and,
upon the request of Lender, to make such books, records and accounts reasonably
available to Lender for inspection or independent audit.
4.14 Financial Statements and Other Information. To furnish to
Lender such financial statements and information as Borrower has agreed to
provide elsewhere in the Loan Documents.
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4.15 Construction Inspector. To permit Lender to retain the
Construction Inspector (the "Construction Inspector") at the cost of Borrower to
perform the following services on behalf of Lender:
(a) To review and advise Lender whether, in the opinion of
the Construction Inspector, the Plans and Specifications are
satisfactory;
(b) To review Draw Requests and material change orders;
(c) To make periodic inspections (approximately at the date
of each Draw Request) for the purpose of assuring that construction of
the Improvements to date is in substantial accordance with the Plans and
Specifications and to approve Borrower's then current Draw Request as
being consistent with Borrower's obligations under this Agreement,
including inter alia, an opinion as to Borrower's continued compliance
with the provisions of Section 6.1 (f) (4) hereof.
The reasonable fees of the Construction Inspector shall be paid by
Borrower promptly upon, but in no event later than sixty (60) days after billing
therefor and expenses incurred by Lender on account thereof shall be reimbursed
to Lender forthwith upon request therefor, but neither Lender nor the
Construction Inspector shall have any liability to Borrower on account of (i)
the services performed by the Construction Inspector, (ii) any neglect or
failure on the part of the Construction Inspector to properly perform its
services, or (iii) any approval by the Construction Inspector of construction of
the Improvements. Neither Lender nor the Construction Inspector assumes any
obligation to Borrower or any other person concerning the quality of
construction of the Improvements or the absence therefrom of defects.
4.16 Soil Tests. To provide promptly to Lender at Borrower's
reasonable expense such soil tests and environmental assessments of the Land as
Lender may require from time to time.
4.17 Insufficiency of Loan Proceeds. To deposit funds with Lender as
follows: if at any time or from time to time during the terms of this Agreement,
in Lender's reasonable judgment and opinion, the remaining undisbursed portion
of the Loan, together with the undisbursed balances of other sums previously
deposited by Borrower with Lender in connection with the Loan, is or will be
insufficient to complete the Improvements substantially in accordance with the
Plans and Specifications, and to pay all other sums due or to become due under
the Loan Documents, regardless of how such condition may be caused, Borrower
shall, within fifteen (15) days after written notice thereof from Lender,
deposit with Lender such sums of money in cash as Lender may reasonably require,
in an amount sufficient to remedy such condition, and, at Lender's option, no
further Advances of the Loan shall be made by Lender until the provisions of
this Paragraph have been fully complied with. All such deposited sums shall
stand as additional security for Borrower's obligations under this Agreement and
shall be disbursed by Lender in the same manner as Advances under this Agreement
before any further Advances of the Loan proceeds shall be made. Lender shall
have no obligation to pay Borrower interest with respect to such deposited
funds. If all or a portion of the money deposited with Lender hereunder has not
been disbursed and the remaining undisbursed portion of the Loan is reasonably
sufficient to complete the
13
Improvements substantially in accordance with the Plans and Specifications, then
such undisbursed funds shall be immediately returned to Borrower.
4.18 Additional Documents. To perform hereunder as follows:
(a) Regarding Construction. To furnish to Lender all
instruments, documents, boundary surveys, footing or foundation surveys,
certificates, plans and specifications, appraisals, title and other
insurance, reports and agreements and each and every other document and
instrument required to be furnished by, the terms of the Commitment or
this Agreement or the other Loan Documents, all at Borrower's expense.
(b) Regarding Preservation of Security. To execute and
deliver to Lender such documents, instrument, assignments and other
writings, and to do such other acts reasonably necessary or desirable,
to preserve and protect the collateral at any time securing or intended
to secure the Loan, as Lender may reasonably require.
(c) Regarding this Agreement. To do and execute all and
such further lawful and reasonable acts, conveyances and assurances to
carry out of the intents and purposes of this Agreement as Lender shall
reasonably require from time to time.
4.19 Financing Publicity. To permit Lender to obtain publicity in
connection with the construction of the Improvements through press releases and
participation in such events as ground breaking and opening ceremonies; and to
give Lender reasonable advance notice of such events and to give Lender
reasonable assistance in connection with obtaining such publicity as Lender may
request without expense to Borrower and without specifying the principals of
Borrower, Alterra and ALE.
4.20 Easements and Restrictions. To submit to Lender for Lender's
approval prior to the execution thereof by Borrower all proposed easements,
restrictions, covenants, permits, licenses, and other instruments which would or
might materially affect the title to the Property, accompanied by a survey
showing the exact proposed location thereof and such other information as Lender
shall reasonably require. Borrower shall not subject the Property or any part
thereof to any easement, restriction or covenant (including any restriction or
exclusive use provision in any lease or other occupancy agreement) which would
or might materially affect the title to the Property without the prior approval
of Lender.
4.21 Compliance with Requirements. Except for Permitted Contests, to
materially comply promptly with all Requirements and Governmental Approvals and
to furnish Lender, on demand, with independent evidence of such compliance.
4.22 Leases. To enter into no leases or occupancy agreements
affecting the Property without the prior approval of Lender (except for leases
with residents of the facility). Borrower shall deliver to Lender executed
counterparts of all leases and occupancy agreements affecting the Property
(except for leases with residents of the facility) whether executed before or
after the date of this Agreement, and shall not
14
amend any provision thereof or waive any obligations of tenants under any leases
or occupancy agreements affecting the Property without the prior approval of
Lender.
4.23 Compliance With Restrictions, Covenants and Easements. To
materially comply with all restrictions, covenants and easements affecting the
Property.
4.24 Laborers, Subcontractors and Materialmen. To furnish to Lender,
upon request at anytime, and from time to time, affidavits listing all laborers,
subcontractors, materialmen, and any other parties who might or could claim
statutory or common law liens and are furnishing or have furnished labor or
material to the Property or any portion thereof, together with affidavits, or
other evidence satisfactory to Lender, showing that such parties have been paid
all amounts then due for labor and materials furnished to the Property. In
addition, Borrower will promptly notify Lender, and in writing, if Borrower
receives any notice, written or oral, from any laborer, subcontractor or
materialmen to the effect that said laborer, subcontractor or materialmen has
not been paid when due for any labor or materials furnished in connection with
the construction of the Improvements. Borrower will also furnish to Lender, at
any time and from time to time upon demand by Lender, lien waivers bearing a
then current date from Contractor and such subcontractors or materialmen as
Lender may designate.
4.25 No Transfers or Encumbrances. Except as permitted by the
Mortgage, to cause or permit no sale, conveyance, transfer, assignment or
encumbering of the Property or any interest therein without the prior approval
of Lender.
ARTICLE 5
AGREEMENT TO LEND
Subject to the terms and conditions set forth in this Agreement, Lender
agrees to make Advances of the Loan to Borrower from time to time during the
period from the date hereof to the Termination Date in an aggregate principal
amount of up to and including the Loan Amount to pay Property Costs actually
incurred including costs incurred in the construction of the Improvements
(including Indirect Costs).
5.1 Note. The obligation of Borrower to pay the principal amount of
all Advances made by Lender to Borrower under this Agreement, plus all interest
accrued thereon at the rate or rates set forth in the Note, shall be evidenced
by the Note.
5.2 Advances. The Construction Budget reflects, by category and
line items, the purposes and the amounts for which funds to be advanced by
Lender under this Agreement are to be used. Lender shall not be required to
disburse for any category or line item more than the amount specified therefor
in the Construction Budget.
5.3 Cost Overruns. If Borrower becomes aware of any change in
Property Costs which will increase or decrease a category or line item of
Property Costs reflected on the Construction Budget (as the Construction Budget
is revised from time to time and approved by Lender), Borrower shall promptly
notify Lender in writing and promptly submit to Lender a revised Construction
Budget. No further Advances need
15
be made by Lender if the revised Construction Budget, after the application of
line item savings, if any, savings in Development Costs (as that term is defined
in the Development Agreement) and contingency, reflects Project Costs which
cannot be funded by the Loan unless Borrower has deposited funds with Lender in
accordance with Section 4.18.If Lender approves the revised Construction Budget,
and such revised Construction Budget reflects Project Costs to be funded by
Lender in excess of the Loan Amount, the amount of such excess shall be added to
the Loan Amount, and Borrower's obligation to repay the same, together with
interest thereon at the rate or rates provided in the Note, shall be deemed to
be evidenced by the Note and secured by the Loan Documents.
5.4 Contingency Reserve. Any amount allocated as Contingency
Reserve in the Construction Budget is not intended to be disbursed and will only
be disbursed upon the prior approval of Lender, which approval will not be
unreasonably withheld of delayed. The disbursement of a portion of the
Contingency Reserve shall in no way prejudice Lender from withholding
disbursement of any further portion of the Contingency Reserve.
5.5 Stored Materials. Lender shall not be required to disburse any
funds for any materials, furnishings, fixtures, machinery or equipment not yet
incorporated into Land or Improvements (the "Stored Materials"). Any
disbursement for the cost of Stored Materials shall be contingent upon Lender
receiving satisfactory evidence that:
(a) The Stored Materials are components in a form ready for
incorporation into the Improvements;
(b) The Stored Materials are stored at the Land, in a bonded
warehouse, at a site controlled by Borrower, or at such other site as
Lender shall reasonably approve, and are reasonably protected against
theft and damage;
(c) The Stored Materials have been paid for in full or will
be paid for with the funds to be disbursed and all lien rights or claims
of the supplier have been released or will be released upon payment with
disbursed funds;
(d) Lender has or will have upon payment with disbursed
funds a perfected, first priority security interest in the Stored
Materials; and
(e) The Stored Materials are insured for an amount equal to
their replacement costs.
5.6 Amount of Advances. In no event shall any Advance exceed the
full amount of Indirect Costs approved by Lender and theretofore paid or to be
paid with the proceeds of such Advance plus ninety (90%) percent of all costs
for construction of Improvements approved by Lender and incurred by Borrower
through the date of the Draw Request for such Advance less the aggregate amount
of any Advances previously made by Lender. It is further understood that the
retainage described above is intended to provide a contingency fund protecting
Lender against failure of Borrower to fulfill any obligations under the Loan
Documents, and that Lender may charge amounts against such retainage in the
event Lender is required or elects to expend its
16
own funds to cure any Event of Default. Notwithstanding the foregoing, no
retainage shall be required on Required Equity Funds, other funds provided to
Lender by Borrower to be disbursed hereunder, on the purchase of furniture,
fixtures and equipment, or on labor expenses. Further, the retainage shall be
reduced to five (5%) percent thirty (30) days after the substantial completion
of work by a contractor or subcontractor. Upon the completion of the
improvements the remaining retainage shall be released.
5.7 Quality of Work. No Advance or part thereof shall be due to the
extent work done at the date the Draw Request for such Advance is submitted is
not done in a good and workmanlike manner and without material defects, as
confirmed by the report of the Construction Inspector, but Lender may disburse
all or part of any Advance before the sum shall become due if Lender believes it
advisable to do so, and all such Advances or parts thereof shall be deemed to
have been made pursuant to this Agreement.
5.8 Required Equity Funds. Required Equity Funds shall be disbursed
in the same manner as Advances under this Agreement and shall be so disbursed
before any Advances of the Loan proceeds shall be made.
ARTICLE 6
CONDITIONS PRECEDENT TO
DISBURSEMENT OF LOAN PROCEEDS
6.1 Conditions of Initial Advance. The obligation of Lender to make
the initial Advance shall be subject to the following conditions precedent:
(a) Commitment. All items required by the Commitment or
letter of instructions from Lender to Borrower regarding the Loan shall
have been delivered to the proper parties as required therein, and all
conditions set forth in the Commitment or such letter of instructions
shall have been satisfied.
(b) Loan Documents. The Loan Documents shall have been duly
executed and delivered by the parties thereto and shall be in full force
and effect, and Lender shall have received the original or a fully
executed counterpart thereof. All Loan Documents to be filed or recorded
in the public records shall have been submitted for filing and
recording.
(c) Construction Documents. The Architect's Contract, if
any, and Construction Contract shall have been duly executed and
delivered by the parties thereto, shall be in full force and effect, and
Lender shall have received a certified or a fully executed counterpart
thereof. Borrower's Architect, if any, and the Contractor shall have
duly executed and delivered to Lender a consent to the assignment of the
Architect's Contract, if any, and Construction Contract, and Lender
shall have received the original or a fully executed counterpart
thereof.
17
(d) Subcontracts. Borrower shall have delivered to Lender,
and Lender shall have approved, a list of all subcontractors and
materialmen who have been or, to the extent identified by Borrower, will
be supplying labor or materials for the construction of the
Improvements, a copy of the standard form of subcontract to be used by
the Contractor, and correct and complete photocopies of all executed
subcontracts.
(e) Other Contracts. Borrower shall have delivered to
Lender correct and complete photocopies of all other executed contracts
with contractors, engineers or consultants for the Property, and of all
development, management, brokerage, sales or leasing agreements for the
Property.
(f) Deliveries. The following items or documents shall have
been delivered to Lender:
(1) Plans and Specifications. Two complete sets of
the Plans and Specifications and approval thereof by any
necessary Governmental Authority.
(2) Title Insurance Policy. A paid Title Insurance
Policy or marked-up title insurance commitment in all respects
reasonably satisfactory to Lender and its counsel.
(3) Other Insurance. Policies (or, if permitted,
certificates or other evidence of) all insurance required by
this Agreement or any other Loan Document.
(4) Evidence of Sufficiency of Funds. Evidence
reasonably satisfactory to Lender that the proceeds of the Loan,
together with Required Equity Funds, will be sufficient to cover
all Property Costs reasonably anticipated to be incurred, and to
satisfy the obligations of Borrower to Lender under this
Agreement.
(5) Evidence of Access, Availability of Utilities,
Governmental Approvals. Evidence reasonably satisfactory to
Lender as to:
(A) the methods of access to and egress from
the Property, and nearby or adjoining public ways,
meeting the reasonable requirements of property of the
type contemplated to be completed under this Agreement
and the status of completion of any required
improvements to such access;
(B) the availability (or the reasonably
anticipated availability so as not to materially delay
construction of the Improvements) of storm and sanitary
sewer facilities meeting the reasonable requirements of
the Property;
(C) the availability (or the reasonably
anticipated
18
availability so as not to materially delay construction
of the Improvements) of all other required utilities, in
location and capacity sufficient to meet the reasonable
needs of the Property; and
(D) the securing of all Governmental
Approvals from the applicable Governmental Authority
which are required under applicable Requirements for the
construction of the Improvements or the taking of such
reasonable steps so that the securing of such
Governmental Approvals will not materially delay
construction of the Improvements, together with copies
of all secured Governmental Approvals.
(6) Environmental Report. An environmental
assessment report or reports of one or more qualified
environmental engineering or similar inspection firms approved
by Lender in form, scope and substance reasonably satisfactory
to Lender, which report or reports shall indicate a condition of
the Land in all respects reasonably satisfactory to Lender and
upon which report or reports Lender is expressly entitled to
rely.
(7) Soil Report. A soil report for the Land
prepared by a soil engineer approved by Lender in form and
substance reasonably satisfactory to Lender, containing
recommendations for the design of foundations, paved areas and
underground utilities.
(8) Survey. A survey prepared in accordance with
Lender's survey requirements, certified by a land surveyor
registered as such in the state in which the Land is located,
which survey shall be in form and substance reasonably
satisfactory to Lender.
(9) Required Equity Funds. Borrower's Required
Equity Funds shall have been delivered to Lender.
(10) Draw Request. A Draw Request complying with the
provisions of this Agreement.
(g) Legal Opinions. Lender shall have received opinions in
form and substance reasonably satisfactory to Lender and Lender's
counsel from counsel satisfactory to Lender as to such matters as Lender
shall reasonably request.
(h) Certification Regarding Chattels. Lender shall have
received a certification from the Title Insurer or counsel reasonably
satisfactory to Lender (which shall be updated from time to time, but
not more frequently that once monthly, at Borrower's expense upon
request by Lender) that a search of the public records disclosed no
conditional sales contracts, chattel mortgages, leases of personalty,
financing statements or title retention agreements which affect the
Property.
(i) Notices. All notices required by any Governmental
Authority or by any applicable Requirement to be filed prior to
commencement of construction of the Improvements shall have been filed.
19
(j) Appraisal. Any appraisal requirements set forth in the
Commitment shall have been satisfied.
(k) Performance; No Default. Borrower shall have performed
and complied with all terms and conditions herein required to be
performed or complied with by it at or prior to the date of the initial
Advance, and on the date of the initial Advance, there shall exist no
Event of Default.
(l) Representations and Warranties. The representations and
warranties made by Borrower and any Guarantor in the Loan Documents or
otherwise made by or on behalf of Borrower or any Guarantor in
connection therewith or after the date thereof shall have been true and
correct in all respects on the date on which made and shall also be true
and correct in all respects on the date of the initial Advance.
(m) Other Documents. Such other documents, opinions and
certificates as Lender or its counsel may reasonably require.
(n) Proceedings and Documents. Lender shall have received
all information and such counterpart originals on certified copies of
such documents and such other certificates, opinions or documents as
Lender and Lender's counsel may reasonably require.
6.2 Conditions of Subsequent Advances. The obligation of Lender to
make any Advance after the initial Advance shall be subject to the following
conditions precedent:
(a) Prior Conditions Satisfied. All conditions precedent to
the initial Advance and any prior Advance shall continue to be satisfied
as of the date of such subsequent Advance.
(b) Performance; No Default. Borrower shall have performed
and complied with all terms and conditions herein required to be
performed or complied with by it at or prior to the date of such
advance, and on the date of such Advance there shall exist no Event of
Default.
(c) Representations and Warranties. The representations and
warranties made by Borrower and any Guarantor in the Loan Documents or
otherwise made by or on behalf of Borrower or any Guarantor in
connection therewith after the date thereof shall have been true and
correct in all respects on the date on which made and shall also be true
and correct in all respects on the date of such Advance.
(d) No Material Damage. If a material casualty (as that
term is defined in the Mortgage) has occurred, that Borrower has
complied with Section 16 of the Mortgage.
20
(e) Receipt by Lender. Lender shall have received:
(1) Draw Request. A Draw Request complying with the
requirements hereof;
(2) Endorsement to Title Insurance Policy. A "run
down" endorsement to the Title Insurance Policy or report
indicating no material change in the state of title and
containing no survey exceptions not approved by Lender, which
endorsement shall, expressly or by virtue of a proper "pending
disbursements" clause or endorsement in the policy, increase the
coverage of the policy to the aggregate amount of all proceeds
of the Loan advanced on or before the effective date of such
endorsement;
(3) Current Survey. An updated survey if required
by the Lender (but not more than twice per year);
(4) Certificates. Certificates from Borrower and
the Construction Inspector to the effect that in their knowledge
and in their opinion, based upon on-site observations and
submissions by the Contractor, the construction of the
Improvements to the date thereof was performed in a good and
workmanlike manner and substantially in accordance with the
Plans and Specifications; and
(5) Contracts. Evidence that one hundred percent
(100%) of the cost of the remaining construction work is covered
by firm contracts or subcontracts, or orders for the supplying
of materials, with contractors, subcontractors, materialmen or
suppliers reasonably satisfactory to Lender or reasonable
evidence that such contracts will be executed so as not to
materially delay construction of the Improvements.
(f) Other Documents. Such other documents, opinions and
certificates as Lender or its counsel may reasonably require.
6.3 Conditions of Final Advance. In addition to the conditions set
forth in Paragraph 6.2 above, Lender's obligation to advance sums retained
pursuant to this Agreement shall be subject to receipt by Lender of the
following:
(a) Approval of Improvements. Evidence of the approval by
all appropriate Governmental Authority of the Improvements in their
entirety for permanent occupancy to the extent any such approval is or
will be a condition of lawful use and occupancy of the Improvements, and
evidence of approval by all appropriate Governmental Authority of the
contemplated uses thereof.
(b) Approval by Construction Inspector. Notification from
the Construction Inspector to the effect that the Improvements have been
completed in a good and workmanlike manner substantially in accordance
with the Plans and Specifications.
(c) Final Survey. A final survey reasonably acceptable to
Lender
21
showing the as- built location of the completed Improvements
(d) Certificate of Borrower's Architect. Certificate of
Borrower's Architect that the Improvements have been completed
substantially in accordance with the Plans and Specifications and that
the Improvements comply with all applicable material Requirements and
material Governmental Approvals and are in all material respects (except
for work to be performed by tenants) ready for occupancy.
(e) Payment of Costs. Evidence reasonably satisfactory to
Lender that all sums due in connection with the construction of the
Improvements have been paid in full (or will be paid out of the funds
requested to be advanced) and that no party claims or has a right to
claim any statutory or common law lien arising out of the construction
of the Improvements or the supplying of labor, material, and/or services
in connection therewith.
6.4. Lender's Approval. Upon Lender's initial, subsequent or final
Advance (as applicable), Borrower shall be deemed to have fully complied with
the conditions precedent thereto set forth in this Article unless, prior to
making such Advance, Lender notifies Borrower in writing of any specific
deficiencies.
ARTICLE 7
METHOD OF DISBURSEMENT OF LOAN PROCEEDS
Lender agrees to make Advances in accordance with the Construction
Budget and subject to the following procedures.
7.1 Draw Request to be Submitted to Lender. At such time as
Borrower shall desire to obtain an Advance, Borrower shall complete, execute and
deliver to Lender a Borrower's Requisition in the form attached hereto as
Exhibit F (hereinafter referred to as "Borrower's Requisition") and an Election
Notice as required by the Note. Each Borrower's Requisition shall be accompanied
by:
(a) if Borrower's Requisition includes amounts to be paid to
the Contractor under the Construction Contract, it shall be accompanied
by a completed and itemized Application and Certificate for Payment (AIA
Document No. G702) or similar form reasonably approved by Lender,
containing the certification of Borrower's Architect and the
Construction Inspector as to the accuracy of same, together with
invoices relating to all items of direct cost covered thereby. All such
applications for payment shall show all subcontractors by name and
trade, the total amount of each subcontract, the amount theretofore paid
to each subcontractor as of the date of such application, and the amount
to be paid from the proceeds of the Advance to each subcontractor;
(b) if Borrower's Requisition includes payments for Indirect
Costs, it shall be accompanied by a completed and itemized Indirect Cost
statement executed by Borrower, together with invoices for all items of
Indirect Costs covered thereby;
22
(c) written lien waivers from the Contractor and
subcontractors and materialmen for work done and materials supplied by
them which were paid for pursuant to any prior Draw Request;
(d) a written notification of Borrower of any changes in the
Plans and Specifications, the Construction Budget the Disbursement
Schedule or the Construction Schedule;
(e) copies of all change orders and subcontracts, and, to
the extent requested by Lender, of all inspection or test reports and
other documents relating to the construction of the Improvements, not
previously delivered to Lender; and
(f) such other information, documentation and certification
as Lender shall reasonably request.
7.2 Notice and Frequency of Advances. Each Draw Request shall be
submitted to Lender at least ten (10) business days prior to the date of the
requested Advance, and no more frequently than monthly.
7.3 Deposit of Funds Advanced. Borrower shall open and maintain a
non-interest bearing loan checking account with Lender into which Lender shall
deposit the proceeds of each Advance. Lender is hereby irrevocably authorized to
make an Advance to and/or charge any account of Borrower with Lender, including
such loan checking account, without the further approval of Borrower, for (i)
any installment of interest due under the Note, (ii) any reasonable expenses
incurred by Lender (including without limiting the generality of the foregoing,
reasonable attorneys' fees and other fees incurred by Lender), or (iii) any
other sums due to Lender under the Note, this Agreement or any of the other Loan
Documents, all to the extent that the same are not paid by the respective due
dates thereof out of Advances of the Loan proceeds. Borrower shall at all times
maintain and keep collected balances in such loan checking account sufficient to
satisfy the foregoing obligations on the due date thereof.
7.4 Advances to Contractor. At its option, Lender may make any or
all Advances for construction expenses properly incurred by Contractor directly
to Contractor for deposit in an appropriately designated special bank account,
and the execution of this Agreement by Borrower shall, and hereby does,
constitute an irrevocable authorization so to advance the proceeds of the Loan
provided that Advances shall only be made directly to the Contractor if (i) sums
due to the Contractor are specifically set forth in the applicable draw request;
(ii) the sums have not been paid to the Contractor; and (iii) the Borrower
receives advance notice that the Lender intends to pay such portions of the
Advance directly to the Contractor. No further authorization from Borrower shall
be necessary to warrant such direct Advances to Contractor and all such Advances
shall satisfy pro tanto the obligations of Lender hereunder and shall be secured
by the Mortgage and the other Loan Documents as fully as if made directly to
Borrower.
23
7.5 Advances Do Not Constitute a Waiver. No Advance shall
constitute a waiver of any of the conditions of Lender's obligation to make
further Advances nor, in the event Borrower is unable to satisfy any such
condition, shall any Advance have the effect of precluding Lender from
thereafter declaring such inability to be an Event of Default hereunder.
7.6 Trust Fund Provisions. All proceeds advanced hereunder shall be
subject to the trust fund provisions of Section 13 of the Lien Law. The
affidavit attached hereto as Exhibit G is made pursuant to and in compliance
with Section 22 of the Lien Law, and, if so indicated in said affidavit, Loan
proceeds will be used, in part, for reimbursement for payments made by the
Borrower prior to the initial Advance hereunder but subsequent to the
commencement of the construction and equipping of the Improvements for items
constituting Costs of Improvement.
ARTICLE 8
EVENTS OF DEFAULTS
The occurrence of any one or more of the following conditions or events
(each an "Event of Default") shall constitute a default under and breach of this
Agreement:
(a) any failure by Borrower to pay as and when due and
payable any interest on or principal of or other sum payable under the
Note; or
(b) any failure by Borrower to deposit with Lender any funds
required by this Agreement to be deposited with Lender and continuance
of such failure for a period of ten (10) days after written notice
thereof from Lender; or
(c) any failure by Borrower to pay as and when due and
payable any other sums to be paid by Borrower to Lender under this
Agreement and continuance of such failure for a period of twenty (20)
days after written notice thereof from Lender; or
(d) title to the Property is or becomes unsatisfactory to
Lender, in its reasonably judgement, by reason of any material lien,
charge, or encumbrance, title condition or exception (including without
limitation, any mechanic's, materialman's or similar statutory or common
law lien or notice thereof), but excluding the Permitted Encumbrances
and such matter causing title to be or become unsatisfactory is not
cured or removed (including by bonding) or reasonably satisfied within
thirty (30) days after notice thereof from Lender to Borrower; or
(e) any refusal by the Title Insurer to insure any Advance
as being secured by the Mortgage as a valid first lien on the Property
and continuance of such refusal for a period of thirty (30) days after
notice thereof by Lender to Borrower; or
(f) the Improvements are not substantially completed by the
24
Completion Date or, in the reasonable estimation of Lender, construction
of the Improvements will not be substantially completed by the
Completion Date unless such delay is caused by reasons beyond Borrower's
reasonable control; or
(g) any material voucher or invoice is submitted at any time
which Borrower knows has not been earned by the payee for services
performed or for materials used in or furnished for the Property; or
(h) any cessation at any time in construction of the
Improvements for more than forty-five (45) consecutive days except for
strikes, acts of God, fire or other casualty, or other causes entirely
beyond Borrower's reasonable control; or
(i) any failure by Borrower to duly observe or perform any
material term, covenant, condition or agreement requiring Borrower to
maintain insurance or not to encumber or transfer the Property and
continuance of such failure for a period of thirty (30) days after
written notice thereof from Lender; or
(j) Borrower requests a termination of the Loan, or
confesses inability to continue or complete construction of the
Improvements in accordance with this Agreement; or
(k) any Guarantor denies that said Guarantor has any
liability or obligation under the Guaranty, or shall notify Lender of
the Guarantor's intention to attempt to cancel or terminate the Guaranty
unless such cancellation or termination is permitted under the
appropriate Guaranty; or
(l) any material representation or warranty made or deemed
to be made by or on behalf of Borrower or any Guarantor in this
Agreement or in any other Loan Document, or in any report, certificate,
financial statement, Draw Request or other instrument furnished in
connection with this Agreement, any Advance or any other Loan Document,
shall prove to have been false or incorrect in any material respect as
at the date of which made or deemed to be made; or
(m) any dissolution, termination, liquidation, merger or
consolidation of Borrower, or any sale, transfer or other disposition of
all or substantially all of the assets of Borrower, or any member of
Borrower, other than with the prior approval of Lender (which approval
shall not be unreasonably withheld or delayed)(and except for sales,
transfers or other dispositions permitted by Section 23 of the
Mortgage); or
(n) a court of competent jurisdiction shall enter an order,
judgment or decree, which shall be filed against Borrower, or the
Property which, would have a materially adverse affect on the ability of
Borrower to repay the Loan and to perform each and every one of its
obligations under and by virtue of the Loan Documents; or
(o) any failure by Borrower to obtain any material
Governmental Approvals, or the revocation or other invalidation of any
material Governmental Approvals previously issued; or
25
(p) any change in the legal or beneficial ownership of
Borrower, other than with the prior approval of Lender, such approval
not to be unreasonably withheld or delayed, and except for sales,
transfers or other dispositions permitted under Section 23 of the
Mortgage; or
(q) any default in the payment of money in excess of
$50,000.00 shall occur under or in respect of any loan agreement, credit
agreement, promissory note, bond, trust deed, indenture, mortgage,
pledge, security agreement, indemnity or guaranty to which Borrower is a
party (whether as principal or guarantor or other surety), or any other
default shall occur thereunder which would entitle the holder thereof to
declare all amounts payable with respect thereto to be immediately due
and payable and such amount is in excess of $50,000.00; or
(r) any failure by Borrower to duly observe or perform any
other term, covenant, condition or agreement under this Agreement and
continuance of such failure for a period of thirty (30) days after
written notice thereof from Lender; provided, however, that if such
failure is not susceptible of cure during such thirty (30) day period
(but is susceptible of cure) and Borrower promptly commences and
diligently pursues cure of such failure during such thirty (30) day
period, then such thirty (30) day period shall be extended for an
additional consecutive period of thirty (30) days; or
(s) any "Event of Default" as said term is defined in any
of the other Loan Documents shall have occurred and continues beyond any
applicable notice and/or cure period; or
ARTICLE 9
RIGHTS AND REMEDIES OF LENDER
9.1 Remedies. Upon the occurrence of any Event of Default, Lender
may at any time thereafter, at its option, exercise any or all of the following
rights and remedies:
(a) Lender may declare its obligations to make Advances
hereunder to be terminated, whereupon the same shall terminate, and/or
declare all unpaid principal of and accrued interest on the Note,
together with all other sums payable under the Loan Documents, to be
immediately due and payable, whereupon same shall become and be
immediately due and payable, anything in the Loan Documents to the
contrary notwithstanding, and without presentation, protest or further
demand or notice of any kind, all of which are expressly hereby waived
by Borrower; provided, however, that Lender may make Advances or parts
of Advances thereafter without thereby waiving the right to demand
payment of the Note, without becoming liable to make any other or
further Advances, and without affecting the validity of or
enforceability of the
26
Loan Documents. Notwithstanding and without limiting the generality of
the foregoing, if any event has occurred which but for the passage of
time, the giving of notice or both would constitute an Event of Default,
Lender's obligations to make Advances hereunder automatically shall so
terminate.
(b) If Lender has accelerated the Loan, Lender may also
cause the Property to be completed and may enter upon the Land and
construct, equip and complete the Property in accordance with the Plans
and Specifications, with such changes therein as Lender may, from time
to time, and in its reasonable discretion, deem appropriate. In
connection with any construction of the Property undertaken by Lender
pursuant to the provisions of this subparagraph, Lender may:
(1) use any funds of Borrower, including any balance
which may be held by Lender as security or in escrow, and any
funds remaining unadvanced under the Loan;
(2) employ existing contractors, subcontractors,
agents, architects, engineers, and the like, or terminate the
same and employ others pursuant to commercially reasonable terms
and conditions;
(3) employ, as reasonably necessary, security
watchmen to protect the Property;
(4) make such additions, changes and corrections in
the Plans and Specifications as shall, in the reasonable
judgment of Lender, be necessary;
(5) take over and use any and all Personal Property
contracted for or purchased by Borrower, if reasonably
appropriate, or reasonably dispose of the same;
(6) execute all applications and certificates on
behalf of Borrower which may be required by any Governmental
Authority or Requirement;
(7) reasonably pay, settle or compromise all
existing or future bills and claims which are or may be liens
against the Property, or may be necessary for the completion of
the Improvements or the clearance of title to the Property;
(8) complete the marketing and leasing of leasable
space in the Improvements, enter into new leases and occupancy
agreements, and modify or amend existing leases and occupancy
agreements, all as Lender shall deem to be reasonably necessary
or desirable;
(9) reasonably prosecute and defend all actions and
proceedings in connection with the construction of the
Improvements or in any other way affecting the Land or the
Improvements; and
(10) take such action hereunder, or refrain from
acting
27
hereunder, as Lender may, in its reasonable discretion, from
time to time determine, to carry out the intent of this
subparagraph. Borrower shall be liable to Lender for all
reasonable costs paid or incurred for the construction,
completion and equipping of the Property, whether the same shall
be paid or incurred pursuant to the provisions of this
subparagraph or otherwise, and all payments made or liabilities
incurred by Lender hereunder of any kind whatsoever shall be
deemed advances made to Borrower under this Agreement and shall
be secured by the Mortgage and the other Loan Documents.
To the extent that any reasonable costs so paid or
incurred by Lender, together with all other Advances made by
Lender hereunder, exceed the Loan Amount, such excess costs
shall be paid by Borrower to Lender on demand, with interest
thereon at the Default Rate, if any, set forth in the Note or,
in the absence of a Default Rate, at the Interest Rate, until
paid; and Borrower shall execute such notes or amendments to the
Note as may be requested by Lender to evidence Borrower's
obligation to pay such excess costs and until such notes or
amendments are so executed by Borrower, Borrower's obligation to
pay such excess costs shall be deemed to be evidenced by this
Agreement. In the event Lender takes possession of the Property
and assumes control of such construction as aforesaid, it shall
not be obligated to continue such construction longer than it
shall see fit and may thereafter, at any time, reasonably change
any course of action undertaken by it or abandon such
construction and decline to make further payments for the
account of Borrower whether or not the Property shall have been
completed. For the purpose of this subparagraph, the
construction, equipping and completion of the Property shall be
deemed to include any action reasonably necessary to cure any
Event of Default by Borrower under any of the terms and
provisions of any of the Loan Documents.
(c) Lender may to the extent permitted by applicable law, at
any time and from time to time, without notice (any such notice being
expressly waived), without regard to the adequacy of any collateral, set
off and apply any and all deposits (general or specific, time on demand,
provisional or final, regardless of currency, maturity, or the branch of
Lender where the deposits are held) at any time held or other sums
credited by or due from Lender to Borrower against any and all
liabilities, direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising of Borrower to Lender.
(d) Lender may exercise any or all of the rights and
remedies set forth in the other Loan Documents.
9.2 Power of Attorney. For the purposes of carrying out the
provisions and exercising the rights, powers and privileges granted by or
referred to in this Agreement, Borrower hereby irrevocably constitutes and
appoints Lender its true and lawful attorney-in-fact, with full power of
substitution, to execute, acknowledge and deliver any instruments and do and
perform any acts which are referred to in this Agreement, in the name and on
behalf of Borrower. The power vested in such attorney-in-fact is, and shall be
deemed to be, coupled with an interest and irrevocable.
9.3 Remedies Cumulative. Upon the occurrence of any Event of
Default, the
28
rights, powers and privileges provided in this Article 9 and all other remedies
available to Lender under this Agreement or under any of the other Loan
Documents or at law or in equity may be exercised by Lender at any time and from
time to time and shall not constitute a waiver of any of Lender's other rights
or remedies thereunder, whether or not the Loan shall be due and payable, and
whether or not Lender shall have instituted any foreclosure proceedings or other
action for the enforcement of its rights under the Loan Documents.
9.4 Annulment of Defaults. An Event of Default shall not be deemed
to be in existence for any purpose of this Agreement or any Loan Document if
Lender shall have waived such Event of Default in writing or stated that the
same has been cured to its reasonable satisfaction, but no such waiver shall
extend to or affect any subsequent Event of Default or impair any of the rights
of Lender upon the occurrence thereof.
9.5 Waivers. Borrower hereby waives to the extent not prohibited by
applicable law (a) all presentments, demands for payment or performance, notices
of nonperformance (except to the extent required by the provisions hereof or of
any other Loan Documents), protests and notices of dishonor, (b) any requirement
of diligence or promptness on Lender's part in the enforcement of its rights
(but not fulfillment of its obligations) under the provisions of this Agreement
or any other Loan Document, and (c) any and all notices of every kind and
description which may be required to be given by any statute or rule of law and
any defense of any kind which Borrower may now or hereafter have with respect to
its liability under this Agreement or under any other Loan Document.
9.6 Course of Dealing, Etc. No course of dealing between Borrower
and Lender shall operate as a waiver of any of either parties' rights under this
Agreement or any Loan Document. No delay or omission on either parties' part in
exercising any right under this Agreement or any Loan Document shall operate as
a waiver of such right or any other right hereunder. A waiver on any one
occasion shall not be construed as a bar to or waiver of any right or remedy on
any future occasion No waiver or consent shall be binding upon either party
unless it is in writing and signed by the other party. The making of an Advance
hereunder during the existence of an Event of Default shall not constitute a
waiver thereof.
ARTICLE 10
GENERAL CONDITIONS
The following conditions shall be applicable throughout the term of this
Agreement:
10.1 Rights of Third Parties. All conditions of the obligations of
Lender hereunder, including the obligation to make Advances, are imposed solely
and exclusively for the benefit of Lender and its successors and assigns and no
other person shall have standing to require satisfaction of such conditions in
accordance with their terms or be entitled to assume that Lender will make
Advances in the absence of strict compliance with any or all thereof and no
other person shall, under any
29
circumstances, be deemed to be a beneficiary of such conditions, any and all of
which may be freely waived in whole or in part by Lender at any time if in its
sole discretion it deems it desirable to do so. In particular, Lender makes no
representations and assumes no obligations as to third parties concerning the
quality of the construction by Borrower of the Improvements or the absence
therefrom of defects. In this connection Borrower agrees to and shall indemnify
Lender from any liability, claims or losses resulting from the disbursement of
the Loan proceeds or from the condition of the Property whether related to the
quality of construction or otherwise and whether arising during or after the
term of the Loan made by Lender to Borrower in connection herewith. This
provision shall survive the repayment of the Loan and shall continue in full
force and effect so long as the possibility of such liability, claims or losses
exists.
10.2 Relationship. The relationship between Lender and Borrower is
solely that of a lender and borrower, and nothing contained herein or in any of
the other Loan Documents shall in any manner be construed as making the parties
hereto partners, joint venturers or any other relationship other than lender and
borrower.
10.3 Evidence of Satisfaction of Conditions. Any condition of this
Agreement which requires the submission of evidence of the existence or
non-existence of a specified fact or facts implies as a condition the existence
or non-existence, as the case may be, of such fact of facts and Lender shall, at
all times, be free independently to establish to its satisfaction and in its
reasonable discretion such existence or non-existence.
10.4 Notices. Any notices required or permitted to be given
hereunder shall be: (i) personally delivered or (ii) given by registered or
certified mail, postage prepaid, return receipt requested, or (iii) forwarded by
overnight courier service or (iv) sent by telecopy (with hard copy to follow by
another accepted method), in each instance addressed to the addresses set forth
at the head of this Note, or such other addresses as the parties may for
themselves designate in writing as provided herein for the purpose of receiving
notices hereunder. All notices shall be in writing and shall be deemed given, in
the case of notice by personal delivery or overnight courier, upon tender of
delivery, and in the case of mail, three business days after postmark and in the
case of telecopy, upon receipt of such telecopy independently confirmed by other
than sender's machine. A copy of any notice issued hereunder shall be sent to
ALE at 250 South Clinton Street, Syracuse, New York 13202 (Attention: Neil A.
Rube) and to Alterra at 10000 Innovation Drive, Milwaukee, Wisconsin 53226
(Attention: Mark Ohlendorf).
10.5 Assignment. Borrower may not assign this Agreement or any of
its rights or obligations hereunder without the prior approval of Lender. A
sale, transfer or other disposition of any interest of Borrower or the Property
that is permitted by Section 23 of the Mortgage shall not constitute an
assignment for the purposes of this Agreement.
10.6 Successors and Assigns Included in Parties. Whenever in this
Agreement one of the parties hereto is named or referred to, the heirs, legal
representatives, successors and assigns of such parties shall be included and
all covenants and agreements contained in this Agreement by or on behalf of
Borrower or by or on behalf of Lender shall bind and inure to the benefit of
their respective heirs, legal representatives, successors and assigns, whether
so expressed or not.
30
10.7 Headings. The headings of the articles, paragraphs and
subparagraphs of this Agreement are for the convenience of reference only, are
not to be considered a part hereof and shall not limit or otherwise affect any
of the terms hereof.
10.8 Invalid Provisions to Affect No Others. If fulfillment of any
provision hereof or any transaction related hereto at the time performance of
such provisions shall be due, shall involve transcending the limit of validity
presently prescribed by law, with regard to obligations of like character and
amount, then ipso facto, the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision herein contained operates
or would prospectively operate to invalidate this Agreement in whole or in part,
then such clause or provision only shall be held for naught, as though not
herein contained, and the remainder of this Agreement shall remain operative and
in full force and effect.
10.9 Number and Gender. Whenever the singular or plural number, or
the masculine, feminine or neuter gender is used herein, it shall equally
include the other.
10.10 Governing Law. This Agreement shall be governed by and
construed in accordance with laws of the State of New York.
10.11 Consent to Jurisdiction. Borrower hereby irrevocably and
unconditionally (a) submits to personal jurisdiction in the State of New York
over any suit, action or proceeding arising out of or relating to this
Agreement, and (b) waives any and all personal rights under the laws of any
state (i) to the right, if any, to trial by jury, or (ii) to object to
jurisdiction within the State of New York or venue in any particular forum
within the State of New York. Nothing contained herein, however, shall prevent
Lender from bringing any suit, action or proceeding or exercising any rights
against any security and against Borrower, and against any property of Borrower,
in any other state. Initiating such suit, action or proceeding or taking such
action in any state shall in no event constitute a waiver of the agreement
contained herein that the laws of the State of New York shall govern the rights
and obligations of Borrower and Lender hereunder or the submission herein by
Borrower to personal jurisdiction within the State of New York.
10.12 Amendments. Neither this Agreement nor any provision hereof may
be changed, waived, discharged or terminated orally, but only by instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement
under seal on the date first above written.
BORROWER:
CLINTON BROOKSIDE DRIVE, LLC
By: ASSISTED LIVING EQUITITES, LLC,
its member
31
By: |S| Neil A. Rube
---------------------------------------------
Neil A. Rube, Executive Committee Member
LENDER:
KEY CORPORATE CAPITAL INC.
By: /S/ Mark Wegener
---------------------------------------------
Name: Mark Wegener
Title: Vice President
32
STATE OF NEW YORK )
) ss.:
COUNTY OF ONONDAGA )
On this __ day of January, 2000, before me, the undersigned, a Notary
Public in and for said State, personally appeared Neil A. Rube, personally known
to me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
____________________________________
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF ____________ )
On this __ day of January, 2000, before me, the undersigned, a Notary
Public in and for said State, personally appeared__________________, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
____________________________________
Notary Public