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LOAN MODIFICATION AND FORBEARANCE AGREEMENT

Default Notice Forbearance Agreement

LOAN MODIFICATION AND FORBEARANCE AGREEMENT | Document Parties: ATLANTA, LLC | Capitol Homes Inc | COMSTOCK HOLLAND ROAD, LLC | COMSTOCK HOMEBUILDING COMPANIES, INC | COMSTOCK JAMES ROAD, LLC | COMSTOCK LANDING, LLC | COMSTOCK MASSEY PRESERVE, LLC | COMSTOCK SUMMERLAND, LC | COMSTOCK WAKEFIELD II, LLC | COMSTOCK WAKEFIELD, LLC | Comstock Wesel, LLC | RALEIGH, LLC | TRIBBLE ROAD DEVELOPMENT, LLC | WACHOVIA BANK, NATIONAL ASSOCIATION You are currently viewing:
This Default Notice Forbearance Agreement involves

ATLANTA, LLC | Capitol Homes Inc | COMSTOCK HOLLAND ROAD, LLC | COMSTOCK HOMEBUILDING COMPANIES, INC | COMSTOCK JAMES ROAD, LLC | COMSTOCK LANDING, LLC | COMSTOCK MASSEY PRESERVE, LLC | COMSTOCK SUMMERLAND, LC | COMSTOCK WAKEFIELD II, LLC | COMSTOCK WAKEFIELD, LLC | Comstock Wesel, LLC | RALEIGH, LLC | TRIBBLE ROAD DEVELOPMENT, LLC | WACHOVIA BANK, NATIONAL ASSOCIATION

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Title: LOAN MODIFICATION AND FORBEARANCE AGREEMENT
Governing Law: North Carolina     Date: 3/31/2009
Industry: Construction Services     Law Firm: Parker Poe     Sector: Capital Goods

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Exhibit 10.66

LOAN MODIFICATION AND FORBEARANCE AGREEMENT

This LOAN MODIFICATION AND FORBEARANCE AGREEMENT (“Agreement”) is made and entered into as of December 10, 2008 (the “Effective Date”) by and among COMSTOCK HOMEBUILDING COMPANIES, INC., a Delaware corporation (“Borrower”); COMSTOCK MASSEY PRESERVE, L.L.C., a Virginia limited liability company (“Comstock Massey”); COMSTOCK HOMES OF RALEIGH, L.L.C., a North Carolina limited liability company (“Comstock Raleigh”); COMSTOCK HOLLAND ROAD, L.L.C., a Virginia limited liability company (“Comstock Holland”); COMSTOCK HOMES OF ATLANTA, LLC, a Georgia limited liability company (“Comstock Atlanta”); COMSTOCK JAMES ROAD, LLC, a Georgia limited liability company (“Comstock James Road”); TRIBBLE ROAD DEVELOPMENT, LLC, a Georgia limited liability company (“Tribble Road Development”); COMSTOCK SUMMERLAND, L.C., a Virginia limited liability company (“Comstock Summerland”); COMSTOCK LANDING, LLC, a Virginia limited liability company (“Comstock Landing”); COMSTOCK WAKEFIELD, LLC, a Virginia limited liability company (“Comstock Wakefield”); COMSTOCK WAKEFIELD II, LLC, a Virginia limited liability company (“Comstock Wakefield II”); and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (“Wachovia” or “Lender”) (Comstock Massey, Comstock Raleigh, Comstock Holland, Comstock Atlanta, Comstock James Road, Tribble Road Development, Comstock Summerland, Comstock Wakefield, and Comstock Wakefield II are collectively referred to as “Guarantors”; Borrower and Guarantors are collectively referred to as “Obligors” and each, individually, as an “Obligor”; Wachovia and the Obligors are collectively referred to as the “Parties” and each, individually, as a “Party”). Capitalized terms used but not defined in this Agreement shall have their meaning in the “Existing Loan Documents” defined below.

RECITALS

A. Comstock is indebted to Lender under a Revolving Promissory Note dated May 26, 2006 in the original principal amount of $40,000,000.00 (as modified and amended, if applicable, the “Note”).

B. In connection with the Note, the Obligors, as applicable, executed the following documents and agreements:

1. Credit Agreement (the “Credit Agreement”) dated May 26, 2006 between Lender and Comstock, joined into by Comstock Raleigh (formerly Capitol Homes, Inc.) and Comstock Massey (formerly Comstock Wesel, L.L.C.), as modified and amended;

2. Deed of Trust, Security Agreement and Financing Statement dated May 26, 2006 from Comstock Massey (formerly Comstock Wesel, L.L.C.) to TRSTE, Inc., a Virginia corporation (“TRSTE”) and recorded in the Wake County Register of Deeds in Book 11976, Page 1996;

3. Deed of Trust, Security Agreement and Financing Statement dated May 26, 2006 from Comstock Raleigh (formerly Capitol Homes, Inc.) to TRSTE and recorded in the Durham County Register of Deeds in Book 5222, Page 995;

 

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4. Deed of Trust, Security Agreement and Financing Statement dated May 26, 2006 from Comstock Raleigh (formerly Capitol Homes, Inc.) to TRSTE and recorded in the Johnston County Register of Deeds in Book 3128, Page 783;

5. Deed of Trust, Security Agreement and Financing Statement dated May 26, 2006 from Comstock Raleigh (formerly Capitol Homes, Inc.) to TRSTE and recorded in the Wake County Register of Deeds in Book 11976, Page 1982;

6. Supplemental Deed of Trust, Security Agreement and Financing Statement dated June 26, 2006 from Comstock Raleigh (formerly Capitol Homes, Inc.) to TRSTE and recorded in the Wake County Register of Deeds in Book 12031, Page 441;

7. Supplemental Deed of Trust, Security Agreement and Financing Statement dated July 21, 2006 from Comstock Raleigh (formerly Capitol Homes, Inc.) to TRSTE and recorded in the Johnston County Register of Deeds in Book 3165, Page 476;

8. Supplemental Deed of Trust, Security Agreement and Financing Statement dated July 25, 2006 from Comstock Raleigh (formerly Capitol Homes, Inc.) to TRSTE and recorded in the Wake County Register of Deeds in Book 12079, Page 404;

9. Deed of Trust, Security Agreement and Financing Statement dated July 21, 2006 from Comstock Landing, LLC to TRSTE and recorded in the Wake County Register of Deeds in Book 12080, Page 830;

10. Supplemental Deed of Trust, Security Agreement and Financing Statement dated July 27, 2006 from Comstock Wakefield and Comstock Wakefield II to TRSTE and recorded in the Wake County Register of Deeds in Book 12094, Page 1730;

11. Deed to Secure Debt, Security Agreement and Financing Statement dated August 29, 2006 from Comstock Atlanta to Lender and recorded with Cherokee County Clerk of Superior Court in Book 9018, Page 173;

12. Deed to Secure Debt, Security Agreement and Financing Statement dated August 29, 2006 from Comstock Atlanta to Lender and recorded with Forsyth County Clerk of Superior Court in Book 4428, Page 387;

13. Deed to Secure Debt, Security Agreement and Financing Statement dated August 29, 2006 from Comstock Atlanta to Lender and recorded with Jackson County Clerk of Superior Court in Book 45I, Page 458;

14. Deed to Secure Debt, Security Agreement and Financing Statement dated September 14, 2006 from Comstock James Road to Lender and recorded with Forsyth County Clerk of Superior Court in Book 4450, Page 620;

15. Deed to Secure Debt, Security Agreement and Financing Statement dated September 27, 2006 from Tribble Road Development to Lender and recorded with Forsyth County Clerk of Superior Court on in Book 4469, Page 410;

 

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16. Supplemental Deed of Trust, Security Agreement and Financing Statement dated October 18, 2006 from Comstock Raleigh to TRSTE and recorded in the Wake County Register of Deeds in Book 12223, Page 2235;

17. Supplemental Deed of Trust, Security Agreement and Financing Statement dated November 9, 2006 from Comstock Raleigh to TRSTE and recorded in the Wake County Register of Deeds in Book 12261, Page 489;

18. Deed of Trust, Security Agreement and Financing Statement dated November 13, 2006 from Comstock Summerland to TRSTE and recorded in the Prince William County Register of Deeds as instrument number 200611170162991;

19. Supplemental Deed of Trust, Security Agreement and Financing Statement dated December 13, 2006 from Comstock Raleigh to TRSTE and recorded in the Wake County Register of Deeds in Book 12308, Page 2241;

20. Unconditional Guaranty dated May 26, 2006 by Comstock Raleigh (formerly Capitol Homes, Inc.) in favor of Lender;

21. Unconditional Guaranty dated May 26, 2006 by Comstock Massey (formerly Comstock Wesel, L.L.C.) in favor of Lender;

22. Unconditional Guaranty dated July 17, 2006 by Comstock Holland in favor of Lender;

23. Unconditional Guaranty dated July 21, 2006 by Comstock Landing in favor of Lender;

24. Unconditional Guaranty dated August 1, 2006 by Comstock Wakefield in favor of Lender;

25. Unconditional Guaranty dated August 1, 2006 by Comstock Wakefield II in favor of Lender;

26. Unconditional Guaranties dated August 29, 2006 by Comstock Atlanta in favor of Lender;

27. Unconditional Guaranty dated September 14, 2006 by Comstock James Road in favor of Lender;

28. Unconditional Guaranty dated September 27, 2006 by Tribble Road Development in favor of Lender;

29. Unconditional Guaranty dated October 18, 2006 by Comstock Raleigh in favor of Lender; and

30. Unconditional Guaranty dated November 13, 2006 by Comstock Summerland in favor of Lender.

 

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C. The Parties entered into that certain Forbearance Agreement made effective February 21, 2007, as modified and amended by letter agreements dated January 15, 2008, March 3, 2008, and April 14, 2008 (the “Original Forbearance Agreement”).

D. The documents described in Paragraphs A through C, all financing statements filed in conjunction therewith, and all other documents executed or authorized by Obligors in connection with the Note, the Credit Agreement, and the Original Forbearance Agreement, as modified and amended if applicable, are collectively referred to as the “Existing Loan Documents”. The Existing Loan Documents, together with this Agreement and any documents executed pursuant to this Agreement are collectively referred to as the “Loan Documents”. All indebtedness whether now existing or hereafter arising that is due and owing by Obligors to Lender under the Loan Documents is collectively referred to as the “Obligations”. All real and personal property and fixtures pledged as collateral for the Obligations is collectively referred to as the “Property”.

E. Obligors acknowledge that (1) the Forbearance Period terminated on April 30, 2008; (2) as of the Effective Date, Borrower is in default under the Existing Loan Documents based on (a) Borrower’s failure to comply with the following financial covenants contained in the Credit Agreement: (i) violation of Senior Liabilities to Effective Tangible Net Worth Ratio for the fiscal quarters ended 3/31/08, 6/30/2008, and 9/30/08, (ii) violation of EBITDA/Debt Service Ratio for the fiscal quarters ended 3/31/08, 6/30/2008, and 9/30/08, and (iii) violation of Tangible Net Worth requirement for the fiscal quarters ended 3/31/08, 6/30/2008, and 9/30/08, (b) Borrower’s failure to make the June, July, August, September, October, November, and December 2008 interest payments within five business days after their respective due dates, (c) Borrower’s failure to maintain general liability insurance at the level required under the Credit Agreement, and (d) existence of a Material Adverse Change as evidenced by Borrower’s inability to pay its obligations to Lender as they come due in the ordinary course of business (collectively, the “Existing Defaults”); and (3) as a result of the Existing Defaults, all Obligations are immediately due and payable in full and Lender is presently entitled to exercise all rights and remedies available to it under the Existing Loan Documents and under applicable law. Obligors’ acknowledgement of the foregoing specific events of default does not preclude Lender from asserting the existence of other events of default.

F. Borrower has requested that Lender agree to extend the Forbearance Period to January 15, 2010 and provide certain additional financing to Borrower. Lender, subject to the terms and conditions of this Agreement, has agreed to this request.

NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, the Parties due hereby stipulate, covenant and agree as follows:

1. Representations, Warranties and Acknowledgements . Obligors, jointly and severally, hereby represent, warrant and acknowledge to Lender, upon which Lender is relying, that:

1.1 The foregoing recitals are true and correct.

 

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1.2 Each is authorized under applicable law to execute, deliver and perform this Agreement and all documents, instruments and agreements executed in connection herewith and neither the execution and delivery of this Agreement nor the fulfillment of or compliance with any of the terms and conditions of this Agreement will, to the best of each Obligor’s knowledge, conflict with or result in a breach of the terms, conditions or provisions of or constitute a violation or default under any contract, agreement, applicable law, regulation, judgment, writ, order or decree to which any of Obligors, or their respective properties are subject.

1.3 The Existing Loan Documents are legal, valid and binding obligations of Obligors in accordance with their respective terms. The liens, security interests and other encumbrances in favor of Lender granted under the Existing Loan Documents are duly perfected and are not subject to avoidance or invalidation for any reason.

1.4 There are no pending, nor to the best knowledge of Obligors, threatened actions, litigation, disputes, alleged defaults for breaches, suits or proceedings against or in any way relating adversely to any Obligor or its properties before any court, arbitrator or governmental or administrative body or agency, except as described in Schedule 1.4 .

1.5 Obligors have received no notice of default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which any of them is a party or by which their properties are bound except as described in this Agreement or set forth in Schedule 1.5 .

1.6 Neither this Agreement nor any report, schedule, certificate, agreement or any instrument heretofore or contemporaneously herewith provided to Lender by Obligors contain any misrepresentation or untrue statement of facts or omits to state any material facts.

1.7 Neither the execution and delivery of this Agreement nor the performance of any actions required by this Agreement is being consummated by any party to hinder, delay or defraud any entity to which any Obligors were or are now or will hereafter become indebted.

1.8 As of the Effective Date, the balance due under the Note, excluding Lender’s attorneys’ fees and costs, is as follows:

 

Principal

  

$

21,662,491.07

Accrued Interest

  

$

501,866.30

Late Charges

  

$

33,922.39

Appraisal Fees

  

$

29,750.00

Total

  

$

22,228,029.76

Lender is waiving the late charges in the amount of $33,922.39 as part of the consideration for this Agreement.

 

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2. Payments Due Under this Agreement . As a condition of this Agreement, Obligors, as applicable, shall remit to Lender the following payments:

2.1 At “Closing” (hereafter defined):

 

(i)

  

Legal Fees 1

  

$86,938.71

(ii)

  

Appraisal Fees

  

$5,561.29

  

(partial payment)

  

  

Total

  

$92,500.00

2.2 Other payments:

(i) $104,188.71, consisting of that portion of the appraisal fees which is not being paid at Closing ($24,188.71), additional legal fees which are not being paid at Closing ($5,000.00), and a commitment and forbearance fee in the amount of $75,000.00, which shall be paid in eleven (11) equal monthly installments of $8,680.00 commencing on January 10, 2009 and continuing on the 10 th day of each month thereafter, with payment of the remaining balance of $8,708.71 due on December 10, 2009;

(ii) all payments due under the “Term Loan” (hereafter defined);

(iii) all payments due under the “Revolver” (hereafter defined);

(iv) all payments due under the “Tribble Road Loan” (hereafter defined); and

(v) all other payments required under the Loan Documents.

3. Amended Credit Facility . The Credit Facility is amended to constitute three separate loans: (a) a term loan in the principal amount of $11,608,484.00 (the “Term Loan”); (b) a revolving loan in the principal amount of $8,000,000.00 (the “Revolver”), and (c) a term loan in the principal amount of $3,000,000.00 (the “Tribble Road Loan”). The Term Loan, the Revolver, and the Tribble Road Loan shall be evidenced by Amended and Restated Promissory Notes in form and substance satisfactory to Lender (the “Amended Notes”).

4. Term Loan .

4.1 The principal amount of the Term Loan, $11,608,484.00, is the sum of (a) all accrued and unpaid interest on the Note as of the Effective Date ($489,953.00) (“Pre-Closing Interest”); and (b) the principal amounts advanced by Lender for those lots shown in Schedule 4.1 which are pledged as collateral for the Obligations (collectively, the “Lots” and each a “Lot”) ($11,118,531.00).

4.2 The unpaid principal balance of the Term Loan shall bear interest from the date hereof at the LIBOR Market Index Rate plus 4%.

 

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Additional legal fees may become due as provided in paragraph 18 of this Agreement.

 

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4.3 All unpaid principal and accrued interest under the Term Loan shall be due any payable in full on January 15, 2010 (“Maturity Date”).

4.4 The release price for each of the Lots subject to financing under the Term Loan will be the sum of (a) the amount advanced by Lender for all of the Lots in the particular development where the Lot to be released is located, allocated to each Lot on a pro rata basis, plus Pre-Closing Interest allocated to each Lot in the same manner (as detailed in Schedule 4.1 ); plus (b) all accrued but unpaid interest due for each Lot from the Effective Date to the closing of the sale of that respective Lot.

5. Revolver .

5.1 Use of Proceeds . Proceeds under the Revolver may be advanced, repaid and readvanced, up to the maximum amount of $8,000,000.00, subject to Borrower’s compliance with the terms and conditions of this Agreement. Except as expressly provided in section 5.4(i), such proceeds may be used by Borrower solely for construction of single family residential houses, townhomes, and condominiums (individually a “Unit” and collectively the “Units”) on the Lots and the completion of partially constructed Units on the Property, in accordance with the plans and specifications approved by Lender (as same may be modified from time to time with the written approval of Lender, the “Plans and Specifications”), and subject to the further conditions hereafter specified.

5.2 Construction Budget. Subject to compliance by Borrower with the terms and conditions of this Agreement, Lender shall make advances to Borrower for hard construction costs incurred by Borrower in connection with the construction of the Units (“Hard Costs”), plus an overhead allowance of six percent (6%) of approved Hard Costs for the construction of new Units on the Lots, in accordance with the sources and uses provided to Lender (as same may be revised from time to time with the written approval of Lender, the “Construction Budget”); provided , however , that in no event shall Lender be obligated to make advances in excess of Verified Project Costs (as hereafter defined). As used in this Agreement, “Verified Project Costs” means the aggregate, from time to time, of (a) Hard Costs actually incurred by Borrower for work in place as part of the Unit, as certified by Lender’s Inspector (as hereafter defined) pursuant to the provisions of this Agreement, and (b) an overhead allowance of six percent (6%) of approved Hard Costs for the construction of new Units on the Lots (which shall be added to the line item for Hard Costs in every Construction Budget). There shall be no overhead allowance for advances related to the Existing Units (as hereafter defined).

5.3 Lender’s Inspector . Lender shall have the right to retain, at Borrower’s expense, an inspector (“Lender’s Inspector”) to review and advise Lender with respect to all Plans and Specifications, Constructions Budgets, construction, architectural and other design professional contracts, change orders, governmental permits and approvals, and other matters related to the design and construction of the Units, to monitor the progress of construction and to review on behalf of Lender all Requests for Advances (as hereafter defined) submitted by Borrower. Lender may make inspections under this section at any time in its discretion; provided, however, that Borrower shall not be responsible for payment of such expenses in excess of $100 per inspection for a condominium and $30 per inspection for any other type of Unit and shall pay for no more that two inspections per month per project. The fees and

 

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expenses of Lender’s Inspector, whether internal or external, shall be due and payable by Borrower as provided for herein or otherwise on demand. Borrower acknowledges that (i) Lender’s Inspector has been retained by Lender to act as a consultant, and only as a consultant, to Lender in connection with the construction of the Units, and Lender’s Inspector may be an employee of the Lender, (ii) Lender’s Inspector shall in no event have any power or authority to make any decision or to give any approval or consent or to do any other thing which is binding upon Lender, and any such purported decision, approval, consent or act by Lender’s Inspector on behalf of Lender shall be void and of no force or effect; provided, however, that if Lender’s Inspector is also the loan officer for the Revolver, Lender may agree to such power or authority acting solely in the employee’s capacity as loan officer for the Lender, (iii) Lender reserves the right to make any and all decisions required to be made by Lender under this Agreement, in its sole and absolute discretion, and without in any instance being bound or limited in any manner whatsoever by any opinion expressed or not expressed by Lender’s Inspector to Lender or any other person with respect thereto, and (iv) Lender reserves the right in its sole and absolute discretion to replace Lender’s Inspector with another inspector at any time and without prior notice to or approval by Borrower. All inspections by or on behalf of Lender shall be solely for the benefit of Lender, and Borrower shall have no right to claim any loss or damage against Lender or Lender’s Inspector (whether or not an employee of the Lender) arising from any alleged (i) negligence or failure to perform such inspections, (ii) failure to monitor loan disbursements or the progress or quality of construction, or (iii) failure to otherwise properly administer the construction aspects of the loan.

5.4 Procedures and Conditions for Advances.

(i) Frequency of Advances . Lender shall advance $1,158,351.00 at Closing (the “Initial Advance”), $100,000.00 of which shall by used to pay property taxes and other approved expenses related to the Tribble Road Property (hereafter defined), with the remaining amount to be used by Borrower solely to pay or as reimbursement for approved construction costs for the partially completed Units shown in Schedule 5.4 (the “Existing Units”). Approval for subsequent advances under the Revolver will be given by Lender on a Unit by Unit basis, subject to Borrower’s compliance with the terms and conditions of this Agreement. Advances shall be limited to no more than two (2) per month.

(ii) Request for Advance . For each request for an advance under the Revolver, Borrower shall submit to Lender, at least five (5) business days prior to the requested date of disbursement, a completed written disbursement request (each, a “Request for Advance”) in such form and detail as required by Lender, together with a check in the amount of any inspection fee required hereunder. Each Request for Advance shall certify and contain in detail acceptable to Lender: (a) the cost of the labor that has been performed, (b) the materials that have been incorporated into the Unit, and (c) a list of the Units to be inspected. In addition:

(1) each Request for Advance for Existing Units shall be accompanied by the Plans and Specifications and the Construction Budget; and

(2) each Request for Advance for the transfer of a Lot from the Term Loan and construction of a new Unit on the Lot shall be accompanied by a request for a release of the Lot from the Term Loan, the Plans and Specifications, the Construction Budget,

 

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and evidence satisfactory to Lender (in its sole discretion) of (i) a binding, non-contingent contract for the sale of the Unit at a price acceptable to Lender, and (ii) a cash deposit of at least five percent (5%) of the sale price for the Unit, such deposit to be held by a third-party escrow agent satisfactory to Lender.

All Requests for Advances shall be accompanied by such additional supporting data and documents as Lender may require, including, without limitation, invoices and waivers of mechanic’s and materialmen’s liens.

(iii) Conditions to Advance . Lender will have no obligation to make any advance if a default (other than the Existing Defaults) under any of the Loan Documents or an event which, with the giving of notice or the passage of time, or both, would constitute a default under any of the Loan Documents has occurred and is continuing, and unless it has received from the Borrower (if not expressly waived by Lender), in form and substance satisfactory to Lender: (a) evidence of any updated title search and/or endorsement to the title policy required by Lender, as applicable, which shall be, unless expressly waived by Lender, in compliance with Lender’s minimum standards in effect at the time of such advance; and if any title policy contains a pending disbursement clause, the amount of the policy shall increase by the advance being made in connection therewith; and (b) evidence of compliance with any other conditions as required by Lender. In no event will Lender approve an advance for an Existing Unit, or for the transfer of a Lot from the Term Loan to the Revolver and construction of a new Unit, if, in the sole opinion of Lender or Lender’s Inspector, the total cost to complete the Unit is greater than the availability under the Revolver at the time of the Request for Advance.

(iv) Inspection . If required by Lender upon receiving a Request for Advance, Lender’s Inspector may determine prior to any advance (a) whether the work completed to the date of such Request for Advance has been done satisfactorily and in accordance with the Plans and Specifications, (b) the percentage of construction of the Unit completed as of the date of such Request for Advance, (c) the Hard Costs (as applicable) actually incurred for work in place as part of the Unit as of the date of such Request for Advance, (d) the actual sum necessary to complete construction of the Unit in accordance with the Plans and Specifications, and (e) the amount of time from the date of such Request for Advance which will be required to complete construction of the Unit in accordance with the Plans and Specifications and/or the Construction Budget.

(v) Disbursement of Advances . At its option, Lender may make advances under the Revolver directly into a separate construction disbursement account or other Borrower account with Lender, to Borrower directly, to a title insurance company or other third party, or directly to the general contractor, subcontractor, materialmen or other suppliers providing labor, services or materials in connection with the construction of the Unit. Lender shall have no obligation after making disbursements in a particular manner to continue to make disbursements in that manner. Notwithstanding the foregoing, Lender’s records of any advance made pursuant to the Loan Documents shall, in the absence of manifest error, be deemed correct and acceptable and binding upon Borrower.

(vi) Final Advance . Lender shall have no obligation to make the final advance for a Unit unless (a) it has received from Borrower (if not expressly waived by Lender),

 

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all in form and substance satisfactory to Lender, all of the items required for advances in general; and (b) the Unit shall have been fully constructed and completed in a good a workmanlike manner in accordance with the Plans and Specifications and all applicable statutes, ordinances, codes, regulations, and restrictions.

5.5 Interest. The unpaid principal balance of the Revolver shall bear interest from the date hereof at the LIBOR Market Index Rate plus 4%.

5.6 Payment Terms . Payments on the Revolver will be due as follows:

(i) interest only commencing on January 10, 2009 and continuing on the 10 th day of each month thereafter until the Maturity Date;

(ii) upon the sale of each Unit, a release price equal to the sum of (a) the total amount advanced by Lender for the Unit and the lot upon which the Unit is built (including all amounts advanced by Lender prior to the Effective Date for the Existing Units, as reflected in Schedule 5.4 , plus all amounts advanced by Lender after the Effective Date pursuant to the provisions of this Agreement and the Revolver), together with all accrued but unpaid interest thereon (the “Base Unit Release Payment”); plus (b) an additional $10,000.00 for each of the ten spec Units remaining in the Summerland project as of the Effective Date (which is included in the amounts shown for the Summerland spec Units in the column headed “1 st Draw” in Schedule 5.4 ), together with all accrued interest thereon from and after the date of the Initial Advance (the “Additional Summerland Release Payment”); plus (c) 25% of any net sale proceeds after payment of the Base Unit Release Payment, the Additional Summerland Release Payment (if applicable), any unfunded construction costs approved by Lender in writing on not less than five (5) business days notice, and all reasonable and customary sales expenses and closing costs properly charged to Borrower as reflected in a HUD-1 settlement statement delivered to Lender not less than three (3) business days in advance of the closing of the sale of the Unit (the “Excess Unit Release Payment”), with the Excess Unit Release Payment to be applied to the unpaid Obligations in any manner in Lender’s discretion; and

(iii) all principal and accrued and unpaid interest shall be due and payable in full on the Maturity Date.

5.7 Construction of Project. Unless otherwise expressly agreed to by Lender, (i) construction of the Units shall be carried on diligently and without delay or interruption for more than 10 consecutive days; and (iii) Units shall be constructed in a good and workmanlike manner, in accordance with the Plans and Specifications, the other Construction Documents (as hereinafter defined) and the Construction Budget, and in compliance with all applicable statutes, ordinances, codes, regulations and restrictions. “Construction Documents” shall mean all construction contracts, contracts with architects, engineers or other design professionals, Plans and Specifications, drawings,


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