THIS AGREEMENT, effective September 16, 2005 (the “Effective Date”), is between STINGRAY PROPERTIES, LLC (the “Borrower”) and WELLS FARGO BANK, NATIONAL ASSOCIATION (the “Bank”).
FIRST: The Borrower has requested a $4,000,000.00 construction — term loan from the Bank to finance the construction of improvements to the property legally described on Exhibit A attached hereto (the “Land”).
SECOND: The Bank has agreed to the Borrower’s request, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower and the Bank agree as follows:
SECTION 1 – DEFINITIONS
Except as otherwise defined in context, each capitalized term in this Agreement shall be defined as follows:
Advance: A disbursement by the Bank pursuant to Section 4 below.
Borrower Authority Documents: The following documents:
(1) A copy of the Borrower’s Articles of Organization, certified by the Minnesota Secretary of State;
(2) A current Certificate of Good Standing of the Borrower, issued by the Minnesota Secretary of State; and
(3) A Certificate of Authority executed by such person or persons authorized by the Borrower’s operating agreement, certifying the incumbency and signatures of the officers or other persons authorized to execute the Loan Documents and containing a copy of resolutions of the Borrower’s governing body authorizing the execution and delivery of the foregoing documents.
Company Guarantors: Sylvan Holdings, LLC and Crystal Blue Properties, LLC.
Completion Date: The earlier of (a) the date twelve months from the Effective Date; or (b) the date on which the Improvements are substantially completed pursuant to the Plans and Specifications.
Construction Loan: The loan facility extended by the Bank to the Borrower pursuant to Section 2.1 below.
Construction Loan Note: An executed promissory note evidencing the Borrower’s obligation to repay Advances made pursuant to the Construction Loan, stating the interest rate and repayment requirements, and otherwise in form and content acceptable to the Bank.
Construction Documents: The following documents, each in form and content acceptable to the Bank:
(1) The final plans and
specifications for the construction and installation of
(2) Certificates of insurance described in the Mortgage;
(3) A preliminary sworn construction statement executed by the Borrower and the General Contractor, showing all “hard” costs to be incurred regarding the Improvements;
(4) A certificate of total
project costs and owner’s equity contribution,
(5) A copy of the
Borrower’s executed contracts with the General Contractor
(6) All building permits and
such other evidence as the Bank shall request to
Draw Request: The form, in form and content acceptable to the Bank and to Title, to be submitted to the Bank and Title when an Advance is requested and which is referred to in Section 4.1.
Financing Statement: A UCC-1 covering the personal property described in the Mortgage.
General Contractor: Cornerstone Construction, Inc.
Guarantor Authority Documents: For each of the Company Guarantors, the following documents:
(1) A copy of the Company Guarantor’s Articles of Organization, certified by the Minnesota Secretary of State;
(2) A current Certificate of Good Standing of the Company Guarantor, issued by the Minnesota Secretary of State; and
(3) A Certificate of Authority executed by such person or persons authorized by the Borrower’s operating agreement, certifying the incumbency and signatures of the officers or other persons authorized to execute the Guaranty and the Indemnity of the Company Guarantor (and the Mortgage, in the case of Sylvan Holdings, LLC) and containing a copy of resolutions of the Company Guarantor’s governing body authorizing the execution and delivery of the foregoing- referenced Guaranty and Indemnity Agreement (and the Mortgage, in the case of Sylvan Holdings, LLC).
Guarantors: Together, the Company Guarantors and the Individual Guarantors.
Indemnity Agreement: An indemnity agreement in form and content acceptable to the Bank, whereby the Borrower and each of the Guarantors indemnifies the Bank against any and all damages arising from the environmental condition of the Land.
Individual Guarantors: Ronald Berg, Gary Verkinnes, Dr. Jeffrey Gerdes, Dr. Hector Ho and Dr. Samir Elghor.
Guaranties: With respect to each of the Company Guarantors, an executed guaranty, in form and content acceptable to the Bank, whereby each of the Company Guarantors guarantees payment of the Construction Note, and with respect to the Individual Guarantors, a limited joint guaranty of the Individual Guarantors, whereby the Individual Guarantors each guarantees payment of a portion the Construction Note, and collectively, the Individual Guarantors guarantee payment of the entire Construction Note.
Improvements: The improvements to be constructed on the Land pursuant to the Plans and Specifications.
Inspecting Architect: John Luce.
Leases: Executed leases of the Project.
Loan Documents: This Agreement, the Construction
Loan Note, and the Indemnity Agreement.
Project: The Land and the Improvements.
Reserve Account: A demand deposit account established in the Borrower’s name at the Bank, for deposits required under Section 4.8.
SNOAs: Executed subordination, non-disturbance and attornment agreements, one by each lessee under the Leases, in form and content acceptable to the Bank.
Survey: A current ALTA/ACSM land title survey certified to the Bank and to Title, containing a legal description conforming to the legal description in the Title Commitment and the legal description in the Mortgage and including the following “Table A” items; (a) flood zone designation; (b) location of the Improvements; (c) indication of access to a public way, such as curb cuts and driveways; and (d) location of utilities existing on or serving the Land, as determined by observed evidence together with plans and markings provided by utility companies.
Title: Tri-Country Abstract and Title Guaranty, Inc., as agent for Chicago Title Insurance Company.
Title Commitment: A commitment for a mortgagee’s ALTA insurance policy issued by Title (the “Commitment”), in an amount equal to the combined amount of the Construction Loan (a) insuring (i) the Mortgage as a first lien on the Project, subject only to “ Permitted Encumbrances” (as defined in the Mortgage); (ii) against claims for mechanics’ liens and rights of parties in possession; and (iii) that the proposed improvements and use of the Project do not violate zoning or use restrictions; and (b) including real estate tax and special assessment searches, UCC searches, tax lien and judgment searches.
SECTION 2 — THE CONSTRUCTION LOAN
2.1 Construction Loan. Subject to the procedures
in Section 4 and the condition
2.2 The Permanent Loan. Upon the Completion Date, the Construction Loan shall be converted to a term loan with a maturity date of September 1, 2019, PROVIDED THAT no Event of Default (as defined in Section 8), and no occurrence that would become an Event of Default with the giving of notice or the lapse of time or both, has and is continuing and that all representations and warranties made by the in Section 6 continue to be true and correct as of the Completion Date.
2.3 Payments. All principal, interest and fees due under the Construction Loan will be paid by the direct debit of available funds deposited in the Borrower’s with the Bank. The Bank shall debit the account on the dates the payments due. If a due date does not fall on a day on which the Bank is open for ally all of its business (a “Banking Day”, except as otherwise provided), the ill debit the account on the next Banking Day, and interest shall continue to 5
accrue during the extended period. if there are insufficient funds in the account on the day the Bank enters any debit authorized by this Agreement, the debit will be reversed and the payment shall be due immediately without necessity of demand by direct remittance of immediately available funds.
SECTION 3 — FEES AND EXPENSES
3.1 Origination Fee. The Borrower shall pay the Bank a loan origination fee of [WAIVED], which shall be deemed fully earned upon payment.
3.2 Loan Expenses. The Borrower shall pay all
expenses relating to the
3.3 Enforcement Expense. The Borrower shall pay all costs of enforcing the Bank’s rights and remedies under the Loan Documents and the Mortgage, including, without limitation, attorneys’ fees, whether or not suit is commenced.
SECTION 4 — PROCEDURES FOR DRAW REQUESTS AND DISBURSEMENTS
4.1 Draw Requests — General. Each request for an Advance under the Construction Loan shall be made pursuant to a fully executed Draw Request, certified by the Borrower and the Inspecting Architect to the Bank and to Title and conforming to the terms and conditions of this Agreement.
4.2 Frequency. Draw Requests shall not be submitted more often than monthly.
4.3 Inspections. At the Bank’s sole
discretion, each Draw Request shall be subject
materials to the Project; and
(2) Other documentation
requested by the Bank or Title with respect to the
4.4 Construction Loan Advances and Disbursements by
Bank. Within five business days of the inspection conducted
under Section 4.2, if such inspection is satisfactory and the
Draw Request is otherwise in strict accordance with this
4.5 Disbursements by Title. Upon receiving the funds transmitted by the Bank pursuant to Section 4.4, Title shall disburse the funds to the Borrower or, in Title’s sole discretion, directly to the General Contractor, sub-contractors or sub-sub-contractors, ON THE CONDITION that the payee’s acceptance of the payment shall be a waiver of all payee’s mechanics’ liens claims against the Project for work and materials covered by such payment. If funds on deposit in Title’s account are not disbursed by Title by the close of business on the fifth business day following receipt of the Bank’s wire transfer or check, Title shall remit to the Bank upon the Bank’s request, in immediately available funds, the amount of funds in such account that were not disbursed. Title shall not be liable to the Bank for interest on funds deposited with it, except and to the extent that Title fails to remit to the Bank undisbursed funds deposited with it, in which case, interest at the Construction Loan Note rate shall be due and payable on demand from the date such funds were deposited with Title.
4.6 Books and Records of Title. Title shall keep
and maintain, at all times, full,
undisbursed amount of the Construction Loan is less than the amount required to pay all costs and expenses that might be anticipated in connection with the completion of the Project, the Borrower shall, within ten calendar days after notice, deposit with the Bank the amount of funds specified in the Bank’ s notice. In lieu of making such deposit the Borrower may pay, from sources other than the proceeds of the Construction Loan, the costs and expenses specified in the notice and present lien waivers and receipts to the Bank in the amount of such costs and expenses.
4.9 Advances Without Receipt of Draw Requests. Bank may at any time, without receipt of a Draw Request, make an Advance to pay interest on the Construction Loan Note.
SECTION 5 CONDITION PRECEDENT
5.1 Condition Precedent to Initial Advance. The
condition precedent to
(1) This Agreement, executed;
The executed Construction Loan Note;
(3) The executed Mortgage;
(4) The executed Construction Documents;
(5) The Borrower Authority Documents;
(6) The Guarantor Authority Documents;
(7) The executed Guaranties;
(8) A copy of each of the executed Leases;
(10) The Title Commitment, together with the Survey;
(11) Lien waivers and other receipts of payment showing that the Borrower has paid expenses with respect to the Project equal to the difference between the Total Project Cost and the Construction Loan OR deposit in the Reserve Account, funds equal to such difference;
(12) An environmental assessment of the Land, in form and substance acceptable to the Bank, together with the fully executed Indemnity Agreement;
(13) An appraisal of the Project by an appraiser acceptable to the Bank, showing a fair market value (after completion of the Improvements according to the Plans and Specifications) of not less than $8,300,000.00;
(14) An executed Agreement to Provide
Property/Flood Plain Insurance, in
(15) Evidence of insurance required by the Mortgage and the Security Agreement, issued by an insurer acceptable to the Bank, showing the Bank as mortgagee (secured party) — additional insured and in form and content acceptable to the Bank; and
(16) Payment of the fees and expenses described in Sections 3.1 and 3.2.
5.2 Further Conditions Precedent to any Advance. Conditions precedent to any Advance, including the initial Advance, shall be that on the date of the Advance:
(1) No Event of Default, and no
occurrence that would become an Event of