Exhibit 10.3
CONSTRUCTION AND LAND ACQUISITION LOAN AGREEMENT
THIS AGREEMENT, made and entered into as of the 30th day of March, 2004, by
and between CCI Southeast, LLC, a Colorado limited liability company,
("Lender"), and Cross Country Properties III, LLC, a Georgia limited liability
company, (the "Borrower").
W I T N E S S E T H
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In consideration of the mutual covenants and agreements hereinafter set
forth, Lender agrees to make and Borrower agrees to accept a loan in accordance
with, and subject to, the terms and conditions hereinafter set forth, as of the
30th day of March, 2004.
ARTICLE 1
Terms and Definitions
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In addition to the other terms hereinafter defined, the following terms
shall have the meanings set forth in this Article:
1.21 Architect. Collectively, the persons or entities who will enter into a
contract with the Borrower with respect to the design and construction of the
Improvements.
1.22 Architectural Contract. The architectural contract to be entered into
between Borrower and Architect concerning the design and construction of the
Improvements.
1.23 Borrower. Cross Country Properties III, LLC, a Georgia limited
liability company, with a business address of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1.24 Completion Date. Nine (9) months from the date of execution of this
Agreement.
1.25 Construction and Development Costs. The entire estimated costs
(including "soft" costs as well as "hard" costs) incurred and to be incurred by
Borrower in connection with the acquisition of the Land and the construction and
development of the Improvements, as set forth in the cost breakdown and estimate
attached hereto as Exhibit "A" and by this reference made a part hereof, as said
cost breakdown and estimate may hereafter be amended from time to time with the
prior written approval of Lender.
1.26 Construction and Contract. The construction contract to be entered
into between Borrower and Contractor providing for the construction of the
Improvements.
1.27 Contractor. Collectively, the persons or parties who will enter into
contracts with the Borrower for construction of all or any portion of the
Improvements.
1.28 Draw Request. As defined in Article 5 hereof.
1.29 Event of Default. As defined in Article 6 hereof.
1.30 Governmental Authority. The United States, the state in which the Land
is situated and any political subdivision thereof, and any agency, department,
commission, board, bureau or instrumentality of any of them.
1.31 Improvements. A retail building with approximately 7,000 square feet to be
constructed on Tract 2 of the Land, and all utilities and other improvements on
Tract 2 and Tract 3 of the Land related thereto, in accordance with the Plans
and Specifications in a development, to be known as "The Advance Auto-Palmetto
Site."
1.32 Land. The real property described in Exhibit "B" attached hereto and
by this reference made a part hereof
1.33 Lender. CCI Southeast LLC, a Colorado limited liability limited
company, with its business address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.34 Lender's Inspector. At the option of Lender, either an employee or
officer of Lender or an independent architect or engineer.
1.35 Loan. The construction loan which is the subject of this Agreement;
1.36 Loan Amount. Six Hundred Thousand and No/100 Dollars ($600,000).
1.37 Loan Documents. Collectively, this Agreement, the documents referred
to in Article 2 and all other documents and instruments evidencing or securing
or otherwise relating to the Loan.
1.38 Plans and Specifications. The plans and specifications for the
Improvements to be prepared by Architect.
1.39 Property. Collectively, the Land and the Improvements.
1.40 Requirements. All laws, rules and regulations of all Governmental
Authorities which apply to the construction and operation of the Improvements.
ARTICLE 2
Loan Documents
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Borrower has duly authorized, executed and delivered to Lender the
following documents:
2.6 Note. Promissory Note (hereinafter referred to as the "Note") payable
to the order of Lender, dated of even date herewith and in the principal face
amount of the Loan Amount
2.7 Security Deed. Deed to Secure Debt and Security Agreement with
Assignment of Rents (hereinafter referred to as the "Security Deed") in favor of
Lender, dated of even date herewith and conveying the Property to secure the
indebtedness evidenced by the Note; which Security Deed is to be recorded in the
appropriate public records of the county in which the Land lies on or about the
date hereof.
2.8 Financing Statement. UCC Financing Statements in favor of Lender giving
notice of the security agreement contained in the Security Deed; which Financing
Statements are to be recorded in the appropriate public records of ▇▇▇▇▇▇ County
in which the Land lies and the County which is the principal place of business
of the Borrower, if different, on or about the date hereof.
2.9 Assignment of Leases. Assignment of Leases hereto by Borrower in favor
of Lender dated of even date herewith to secure the indebtedness evidenced by
the Note, which is to be recorded in the appropriate public records of the
County in which the Land lies on or about the date hereof.
2.10 Assignment of Contract Documents. Assignment of contract documents,
dated of even date herewith.
ARTICLE 3
Warranties of Borrower
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Borrower hereby warrants to Lender as follows.
3.18 Validity of Loan Documents. That the Loan Documents are in all
respects legal, valid and binding in accordance with their terms and grant to
Lender a direct, valid and enforceable first lien on and security title in and
to the Property and the personality located thereon.
3.19 Priority of Lien on Personality. That no chattel mortgage, ▇▇▇▇ of
sale, security agreement, financing statement or other title retention agreement
(except those executed in favor of Lender) has or will be executed with respect
to any personal property, chattel or fixture used in connection with the
construction, operation or maintenance of the Property, without the prior
written consent of Lender.
3.20 Conflicting Transactions of Borrower. That the consummation of the
transactions hereby contemplated and the performance of the obligations of
Borrower under and by virtue of the Loan Documents will not result in any breach
of, or constitute any default under, any mortgage, security deed, deed of trust,
lease, bank loan or credit agreement, corporate charter or by-laws or other
instrument to which Borrower is a party or by which it is bound or affected.
3.21 Pending Litigation. That there are no actions, suits or proceedings
pending, or to the knowledge of Borrower threatened, against or affecting it or
the Property, or involving the validity or enforceability of any of the Loan
Documents or the priority of the lien thereof, at law or in equity, or before or
by any Governmental Authority, except actions, suits and proceedings which are
fully covered by insurance and which, if adversely determined, would not
substantially impair the ability of Borrower, financial or otherwise, to perform
each and every one of its obligations under and by virtue of the Loan Documents.
3.22 Violations of Requirements. That Borrower has no knowledge of any
violations or notices of violations of any Requirement relating in any way to
the Property.
3.23 Compliance with Requirements. That the Plans and Specifications and
construction pursuant thereto and the use of the Property contemplated thereby
comply with all Requirements.
3.24 Status and Authority. That Borrower (i) is a limited liability company
duly organized, existing and in good standing in the State of Georgia, (ii) has
the power, authority and legal right to carry on the business now being
conducted by it and to engage in the transactions contemplated by the Loan
Documents and (iii) the execution and delivery of the Loan Documents and the
performance and observance of the provisions thereof have been duly authorized
by any and all necessary partnership actions of Borrower, or affiliates of
Borrower.
3.25 Availability of Utilities. That all utility services necessary for the
construction of the Improvements and the operation thereof for their intended
purposes are available at the boundaries of the Land, including, but not limited
to, water supply, storm and sanitary sewer, gas, electric and telephone
facilities.
3.26 Condition of Property. That the Property is not now damaged or injured
as result of any fire, explosion, accident, flood or other casualty.
3.27 Brokerage Commissions. That any brokerage commissions due in
connection with the transactions contemplated hereby 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 indemnity 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.
3.28 Non-Commencement of Construction. That Borrower has not caused or
permitted any labor (including demolition work) to be furnished in connection
with construction of the Improvements or caused or permitted any materials to be
delivered to the Land; that site preparation of the Land has not begun; and that
neither Contractor nor any supplier or subcontractor will be permitted to
deliver any materials to the Land, or to demolish any existing structures, or to
clear, grade, excavate for footings or otherwise perform any work on the Land
until the Security Deed is filed for record in the appropriate public records of
the county in which the Land is situated, except for such labor, work or site
preparation for which lien waivers have been obtained or for which title
insurance over any inchoate or actual lien rights arising therefrom has been
obtained.
3.29 Financial Statements. That the financial statements of Borrower and
Guarantor heretofore delivered to Lender are materially true and correct in all
respects, have been prepared in accordance with generally accepted accounting
practices, and fairly present the respective financial conditions of the subject
thereof as of the respective dates thereof, that no materially adverse change
has occurred in the financial conditions reflected therein since the respective
dates thereof; and that no additional borrowings have been made by Borrower or
Guarantor since the date thereof other than the borrowing contemplated hereby or
otherwise expressly approved by Lender.
3.30 Construction. That (i) both Borrower and Contractor are in full
compliance with their respective obligations under the Construction Contract,
(ii) the work to be performed by Contractor under the Construction Contract is
the work called for by the Plans and Specifications and (iii) all work on the
Improvements shall substantially conform to the Plans and Specifications and
shall be free of structural defects.
3.31 Access. That the rights-of-way of all roads necessary for the full
utilization of the Improvements for their intended purposes have either been
acquired by 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 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.
3.32 No Event of Default under Loan Documents. That no Event of Default by
Borrower exists under this Agreement, or under any of the other Loan Documents,
and no event has occurred and is continuing which with notice or the passage of
time or both would constitute an Event of Default under any of the Loan
Documents.
3.33 Architect's Agreement. That both Borrower and Architect are in full
compliance with their respective obligations under the Architectural Contract.
Borrower shall from time to time upon request by Lender cause Architect to
provide Lender with reports relative to the status of construction of the
Improvements.
3.34 Effect of Draw Request. That each Draw Request shall constitute an
affirmation that the representations and warranties of this Article 3 remain
true and correct as of the date hereof, and, unless Lender is notified to the
contrary 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
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Borrower hereby covenants and agrees with Lender as follows.
4.1 Loan Documents. To permit no default under the terms of the Loan
Documents.
4.19 Construction Contract. (i) To permit no default under the terms of the
Construction Contract; (ii) to waive none of the obligations of Contractor
thereunder; (iii) to do no act which would relieve Contractor from its
obligations to construct the Improvements according to the Plans and
Specifications; and (iv) to make no amendments to or charge orders under the
Construction Contract without the prior written consent of Lender.
4.20 Architectural Contract. (i) To create no default under the terms of
the Architectural Contract; (ii) to waive none of the obligations of Architect
thereunder; (iii) to do no act which would relieve Architect from its
obligations under the Architectural Contract; and (iv) to make no amendments to
the Architectural Contract, without the prior written consent of Lender.
4.21 Insurance. To obtain such insurance or evidence of insurance as Lender
may reasonably require, including, but not limited to, the following.
(c) Title Insurance. A mortgagee title insurance policy in an amount,
form and substance and written by a title insurance company and through a
title agent satisfactory to Lender and insuring a valid first lien upon and
security title in and to the Property by virtue of the Security Deed, the
original of which policy shall be promptly delivered to Lender. The policy
shall contain no exceptions other than those specifically waived in writing
by Lender.
(d) Builder's Risk Insurance. Builder's risk insurance with standard
non-contributing mortgagee clauses and standard subrogation clauses, such
insurance to be in such amounts and form and by such companies as shall be
approved by Lender, the originals of which policies [together with
appropriate endorsements thereto, evidence of payment of premiums thereon
and written agreement by the insurer or insurers therein to give Lender
thirty (30) days prior written notice of intention to cancel] shall be
promptly delivered to Lender; said insurance coverage to be kept in full
force and effect at all times until the completion of construction of the
Improvements.
(c) Hazard Insurance. Fire and extended coverage insurance, and such
other hazard insurance as Lender may require with standard non-contributing
mortgagee clauses and standard subrogation clauses, such insurance to be in
such amounts and form and by such companies as shall be approved by Lender,
the originals of which policies together with appropriate endorsements
thereto, evidence of payment of premiums thereon and written agreement by
the insurer or insurers therein to give Lender thirty (30) days prior
written notice of intention to cancel shall be promptly delivered upon
completion of construction of the Improvements and before any portion of
the Property is occupied by Borrower or any tenant of Borrower, with such
insurance to be kept in full force and effect at all times thereafter until
the payment in full of the loan evidenced by the Note.
(d) Public Liability and Workmen's Compensation Insurance. A
certificate from an insurance company indicating that Borrower and
Contractor are covered by public liability and workmen's compensation
insurance to the satisfaction of Lender.
4.22 Collection of Insurance Proceeds. To cooperate with Lender in
obtaining for Lender the benefits of any insurance or other proceeds lawfully or
equitably payable to Lender in connection with the transactions contemplated
hereby and to reimburse Lender for any expenses incurred in connection therewith
(including the payment by Borrower of the expense of an independent appraisal on
behalf of Lender in case of a fire or other casualty affecting the Property).
4.23 Application of Loan Proceeds. To use the proceeds of the Loan solely
for the purpose of paying for the cost of construction of the Improvements and
such incidental costs relative to such construction as may be approved from time
to time in writing by Lender, and in no event to use any of the Loan proceeds
for personal, family, or household purposes.
4.24 Expenses. To pay all costs of closing the loan contemplated hereunder
and all expenses of Lender with respect thereto, including but not limited to,
legal fees (including legal fees incurred by Lender subsequent to the closing of
the loan in connection with the disbursement, administration, collection or
transfer of the loan), advances, recording expenses, surveys, intangible taxes,
expenses of foreclosure (including trustee's and attorney's fees) and similar
items.
4.25 Commencement and Completion of Construction. To diligently pursue
construction to completion; and to supply such monies and to perform such duties
as may be necessary to complete the construction of the Improvements
substantially in accordance with the Plans and Specifications and in full
compliance with all terms and conditions of the Commitment and the Loan
Documents, all of which shall be accomplished on or before the Completion Date,
and without liens, claims or assessments (actual or contingent) asserted against
the Property for any material, labor or other items furnished in connection
therewith, and all in full compliance with all Requirements; evidence of
satisfactory compliance with all of which Borrower will provide to Lender upon
request therefore by Lender.
4.26 Right of Lender to Inspect Property. To permit Lender and its
representatives and agents to enter upon the Property and to inspect the
Improvements and all materials to be used in the construction thereof and to
cooperate and cause Contractor to cooperate with Lender and its representatives
and agents during such inspections (including making 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.
4.27 Correction of Defects. To correct promptly any structural defect in
the Improvements or any departure from the Plans and Specifications not
previously approved by Lender, Borrower hereby agreeing that the advance of any
loan proceeds, with or without knowledge of such defect, shall not constitute a
waiver of Lender's right to require compliance with this covenant.
4.28 Approval of Change Orders. To permit no deviations from the Plans and
Specifications during construction without the prior written approval of Lender.
4.29 Notice of Occupancy. To notify immediately Lender upon the acceptance
by the initial tenant of occupancy of any portion of the Property, such notice
to include the name of the tenant and the date of occupancy.
4.30 Books and Records. To keep and maintain proper and accurate books,
records and accounts reflecting all items of income and expense of Borrower in
connection with the Property and the construction thereon; and, upon the request
of Lender, to make such books, records and accounts immediately available to
Lender for inspection or independent audit.
4.31 Notification of Claims by Subcontractors and Materialmen. To advise
Lender immediately, and in writing, if Borrower receives any notice, written or
oral, from any laborer, subcontractor or materialman to the effect that said
laborer, subcontractor or materialman has not been paid when due for any labor
or materials furnished in connection with the construction of the Improvements.
4.32 Soil Tests. To provide promptly to Lender at Borrower's expense such
soil tests of the Land as Lender may request.
4.33 Bonds. To furnish to Lender and maintain such dual-obligee payment and
performance bonds relating to the Contractor and major subcontractor as Lender
may require from time to time.
4.34 Insufficiency of Loan Proceeds. To deposit funds with Lender as
hereinafter provided. If at any time during the term of this Agreement, in
Lender's judgment and opinion the remaining undisbursed portion of the Loan is
insufficient to fully complete the Improvements substantially in accordance with
the Plans and Specifications, and to pay all interest accrued or to accrue on
the Loan, and to pay all other sums due or to become due under the Loan
Documents, Borrower shall, within seven (7) days after written notice thereof
from Lender, deposit with Lender such sums of money in cash as Lender may
require, and in an amount or amounts sufficient to remedy such condition, and
sufficient to pay any liens for services and materials alleged to be due and
payable at that time in connection with the Improvements, and, at Lender's
option, no further disbursements of the Loan shall be made by Lender until this
Paragraph has 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 before any further advances of the Loan are made, or paid
over to Borrower upon termination of Borrower's obligations under this
Agreement.
4.35 Additional Documents. To perform hereunder as follows.
(d) 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, all at Borrower's expense.
(e) Regarding Preservation of Security. To execute and deliver to
Lender such documents, instruments, assignments and other writings, and to
do such other acts necessary or desirable, to preserve and protect the
collateral at any time securing or intended to secure the Note, as Lender
may require.
(c) Regarding This Agreement. To do and execute all and such further
lawful and reasonable acts, conveyances and assurances in the law for the
better and more effective carrying out of the intents and purposes of this
Agreement as Lender shall require from time to time.
ARTICLE 5
Methods and Conditions of Disbursement of Loan Proceeds
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Lender agrees to make disbursements to Borrower against the Note for
Construction and Development Costs up to the full Loan Amount in accordance with
and subject to the following conditions and procedures:
5.12 Draw Request. At such time as Borrower shall desire to obtain, subject
to the other requirements hereof, a disbursement of any portion of the proceeds
of the Loan, Borrower, by its authorized signatory, who is hereby designated to
be ▇▇▇ ▇. ▇▇▇▇▇, as President of Borrower, shall complete, execute and deliver
to Lender a request for an advance on the Lender's standard form draw request
(hereinafter referred to as a "Draw Request"), as said standard form may be
changed by Lender from time to time, together with the inspection fee charged to
Lender by Lender's Inspector.
5.13 Evidence of Progress of Construction. Each Draw Request shall be
accompanied by evidence in form and content satisfactory to Lender (including,
but not limited to, certificates and affidavits of Borrower, Architect, Lender's
Inspector and Contractor or such other persons as Lender may require) showing:
(a) the percentage of the Improvements completed at that time; the
total funds expended to date by Borrower in connection with the
construction of the Improvements (including the portions thereof for which
Loan proceeds have been previously disbursed); and the funds required to
complete the construction of the Improvements;
(b) that all outstanding claims for labor, materials and fixtures have
been paid;
(c) that there are no liens outstanding against the Property except
for Lender's security title, other than inchoate liens for property taxes
not yet due;
(d) that Borrower has complied with all of Borrower's obligations, as
of the date thereof, under the Loan Documents;
(e) that all construction prior to the date of the Draw Request has
been done substantially in accordance with the Plans and Specifications;
(f) that any payment and performance bonds required by Lender are in
full force and effect;
(g) that all funds previously disbursed by Lender have been applied
directly to the Construction and Development Costs;
(h) that copies of all bills or statements for expenses for which the
advance is requested are attached to such Draw Request;
(i) that all change orders shall have been approved by any surety;
(j) that the loan proceeds then remaining to be disbursed are
sufficient to cover the remaining unpaid Construction and Development
Costs.
5.14 Continuation of Title Insurance Coverage. Each Draw Request shall, at
the request of Lender, be accompanied by a satisfactory endorsement to the
previously delivered mortgagee title insurance policy, which endorsement shall
(i) indicate that since the effective date of said policy (or the effective date
of the last such endorsement, if any) there has been no change in the status of
title to the Property as set out in said policy and (ii) have the effect of
increasing the coverage of the policy by an amount equal to the advance then
being made.
5.15 Conditions Precedent to Each Disbursement. At no time and in no event
shall Lender be obligated to disburse funds:
(a) in excess of the amount recommended by Lender's Inspector; or
(b) if any Event of Default shall have occurred and shall not have
been cured; or
(c) if in the sole opinion of Lender the estimated remaining costs
(both direct and indirect) of construction of the Improvements in
accordance with the Plans and Specifications exceed the remaining
undisbursed portion of the Loan; or
(d) if the Property shall have been damaged by fire or other casualty
and Lender shall not have received insurance proceeds sufficient in the
sole judgment of Lender to effect the restoration of the Improvements in
accordance with the Plans and Specifications so as to permit the completion
of the Improvements on or before the Completion Date; or
(e) for personal property or construction materials unless stored on
the Land and reasonably secured from damage and theft in a manner wholly
satisfactory to Lender; or
(f) against any construction contract, subcontract or order for supply
of materials not previously furnished to and approved by (and, if requested
by Lender, assigned to Lender) Lender and Lender's Inspector in all
respects including reasonableness of costs and identity of the contractor,
subcontractor, materialmen or supplier; or
(g) if Borrower shall fail to furnish to Lender an updated schedule of
estimated monthly disbursements in form satisfactory to Lender; or
(i) in excess of the Loan Amount.
5.16 Retainage. Each construction disbursement shall not exceed ninety
(90%) percent of the cost of work in place and materials properly stored on-site
under the Construction Contract through the date of such disbursement until the
Improvements have been completed in accordance with the Plans and
Specifications. This ten (10%) percent retainage shall be disbursed only upon
compliance with the following requirements (in addition to the requirements for
all other disbursements):
(c) receipt by Lender of satisfactory evidence of the completion of
the Improvements (in their entirety) substantially in accordance with the
Plans and Specifications and approval of such completion by all
Governmental Authorities having jurisdiction thereover; and
(d) receipt by Lender of a satisfactory "as-built" blueprint of survey
reflecting the location of the Improvements on the Land in accordance with
the Plans and Specifications; and
(f) receipt by Lender of a final Contractor's affidavit and such other
information as is sufficient in the opinion of Lender's counsel and any
materialmen's and mechanics' liens (inchoate or otherwise) which could
affect title to the Property.
5.17 Notice, Frequency and Place of Disbursements. At the option of Lender:
(i) each Draw Request shall be submitted to Lender at least ten (10) business
days prior to the date of the requested advance; (ii) disbursements shall be
made no more frequently than monthly; and (iii) all disbursements shall be made
at the principal office of Lender or at such other place as Lender may
designate. If all of the terms and conditions of this Agreement have been
materially complied with to Lender's sole satisfaction and provided that there
exists no Event of Default, Lender shall disburse the proceeds of the Loan in
accordance with such Draw Requests.
5.18 Deposit of Funds Advanced. Borrower will immediately deposit all loan
proceeds advanced by Lender in a separate and exclusive account maintained with
Wachovia Bank, Account No. 2000017154222, to be withdrawn and used solely for
the purposes specified in the Draw Request, and will promptly furnish Lender
with evidence thereof.
5.19 Advances to Contractors. At its option Lender may make any or all
advances for construction expenses 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
direction and authorization to so advance the funds. No further direction or
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 Security Deed as fully as if made
to Borrower.
5.20 Advances to Title Insurance Company. At its option, Lender may make
any or all advances through the title insurance company insuring the lien of the
Security Deed and any portion of the loan so disbursed by Lender shall be deemed
disbursed as of the date on which the title insurance company receives such
disbursement. The execution of this Agreement by Borrower shall, and hereby
does, constitute an irrevocable direction and authorization to so advance the
funds. No further direction or authorization from Borrower shall be necessary to
warrant such direct advances to the title insurance company and all such
advances shall satisfy pro tanto the obligations of Lender hereunder and shall
be secured by the Security Deed as fully as if made to Borrower.
5.21 Advances Do Not Constitute a Waiver. No advance of loan proceeds
hereunder 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 such waiver have the effect of precluding
Lender from thereafter declaring such inability to be an event of default under
Article 6 hereof.
5.22 Construction Interest Payable with Each Draw Request. So long as there
shall be an interest reserve under the Loan (and Borrower hereby agrees that
Lender shall have the right to establish and maintain said reserve), interest
shall be funded by Lender, either by funding same to Borrower with immediate
payment by Borrower to Lender or directly by Lender to itself, as Lender shall
determine in its sole discretion, provided, however, that nothing contained
herein shall be deemed to release or in any way relieve Borrower of its
obligation under the Note to pay interest as therein provided. Interest shall be
funded monthly with any Draw Request then funded, but may also be funded whether
or not any Draw Request for that month has been submitted, approved or funded.
Article 6
Defaults
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An Event of Default shall be deemed to have occurred under this Agreement
if:
6.10 Default under Loan Documents. Any default or event of default occurs
under any of the other Loan Documents, which is not cured within any notice and
cure period therein; or
6.11 Breach of Covenant. Borrower breaches or fails to perform, observe or
meet any covenant or condition made herein and does not cure same within five
(5) days after written notice thereof, with respect to such breaches or failures
curable solely by the payment of money, or within fifteen (15) days after
written notice thereof, with respect to all other such breaches and failures,
provided, however, that with respect to breaches or failures which cannot be
cured by the payment of money, and cannot be reasonably cured within such period
(but can be cured), no Event of Default shall exist hereunder so long as
Borrower promptly commences and thereafter diligently pursues the cure thereof
and continues to satisfy all of Borrower's monetary obligations under the Loan
Documents and so long as, in Lender's reasonable judgment, the Improvements can
be completed by the Completion Date within budget, but in any event such period
shall not exceed thirty (30) days from the date of written notice of default or
extend the maturity date of the Note; or
6.12 Breach of Warranty. Any warranties made or agreed to be made herein
shall be breached by Borrower or shall prove to be false or misleading in any
material respect unless same are cured within the periods allowed by the
preceding Section 6.2; or
6.13 Filing of Liens Against the Property. Any lien for labor, materials,
taxes (except for ad valorem taxes not yet due and payable) or otherwise shall
be filed against the Property and not be removed within fifteen (15) days
thereafter; or
6.14 Litigation Against Borrower. Any suit shall be filed against Borrower,
which if adversely determined could reasonably be expected to substantially
impair the ability of Borrower to perform each and every one of their respective
obligations under and by virtue of the Loan Documents; or
6.15 Levy upon the Property. A levy be made under any process on, or a
receiver be appointed for, the Property or any other property of Borrower; or
6.16 Bankruptcy of Borrower. The filing by Borrower or Guarantor of a
voluntary petition in bankruptcy under Title 11 of the United States Code, or
the issuing of an order for relief against Borrower or Guarantor under Title 11
of the United States Code, or the filing by Borrower or Guarantor of any
petition or answer seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief for itself
under any present or future federal, state or other law or regulation relating
to bankruptcy, insolvency or other relief for debtors, or Borrower's or
Guarantor's seeking or consenting to or acquiescing in the appointment of any
custodian, trustee, receiver, conservator or liquidator of Borrower or Guarantor
or of all or any substantial part of the Property or of any or all of the rents,
issues, profits, revenues or royalties thereof, or the making by Borrower or
Guarantor of any general assignment for the benefit of creditors, or Borrower's
or Guarantor's failure generally to pay its debts as such debts become due, or
Borrower's or Guarantor's giving of notice to any governmental body of
insolvency or pending insolvency or suspension of operations; or the entry by a
court of competent jurisdiction of an order, judgment or decree approving a
petition filed against Borrower or Guarantor seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future federal, state or other law or regulation
relating to bankruptcy, insolvency or other relief for debtors, which order,
judgment or decree remains unvacated and unstayed for an aggregate of sixty (60)
days (whether or not consecutive) from the date of entry thereof, or the
appointment of any custodian, trustee, receiver, conservator or liquidator of
Borrower or Guarantor or of all or any substantial part of the Property or of
any or all of the rents, issues, profits, revenues or royalties thereof without
the consent or acquiescence of Borrower or Guarantor which appointment shall
remain unvacated and unstayed for an aggregate of sixty (60) days (whether or
not consecutive); or
6.17 Abandonment or Cessation of Construction. Construction of the
Improvements shall be abandoned or shall cease (except due to events of force
majeure which are hereby defined to mean acts of God, enemy action or civil
commotion) and not be resumed within fifteen (15) days thereafter; or
6.18 Failure to Disprove Default. Lender shall reasonably suspect the
occurrence of one or more of the aforesaid Events of Default and Borrower, upon
the request of Lender, shall fail to provide evidence reasonably satisfactory to
Lender that such Event or Events of Default have not in fact occurred.
Article 7
Remedies of Lender
------------------
Upon the occurrence of any one or more of the Events of Default set out in
Article 6 hereof, Lender, at its option and in addition to and not in lieu of
the remedies provided for in the other Loan Documents, shall be entitled to
proceed to exercise any of the following remedies:
7.3 Default Constitutes Default under Other Loan Documents. Borrower agrees
that the occurrence of such Event of Default shall constitute a default under
each of the other Loan Documents, thereby entitling Lender (i) to exercise any
of the various remedies therein provided, including the acceleration of the
indebtedness evidenced by the Note and the foreclosure of the Security Deed, and
(ii) cumulatively to exercise all other rights, options and privileges provided
by law or in equity.
7.4 Right of Lender to Assume Possession and Complete Construction.
Borrower agrees, upon the request of Lender, to vacate the Property and to
permit Lender:
(a) to enter into possession;
(b) to perform or cause to be performed any and all work and labor
necessary to complete the Improvements in accordance with the Plans and
Specifications;
(c) to employ security watchmen to protect the Property; and
(d) to disburse that portion of the proceeds of the Loan not
previously disbursed (including any retainage) to the extent necessary to
complete construction of the Improvements in accordance with the Plans and
Specifications, and if the completion requires a larger sum than the
remaining undisbursed portion of the Loan, to disburse such additional
funds, all of which funds so disbursed by Lender shall be deemed to have
been disbursed to Borrower and shall be secured by the Security Deed. For
this purpose, Borrower hereby constitutes and appoints Lender its true and
lawful attorney-in-fact with full power of substitution to complete the
construction of the Improvements in the name of Borrower, and hereby
empowers Lender as said attorney to take all actions necessary in
connection therewith including, but not limited to, the following: to use
any funds of Borrower including any balance which may be held in escrow and
any funds which may remain unadvanced hereunder for the purpose of
completing the Improvements in the manner called for by the Plans and
Specifications; to make such additions, changes and corrections in the
Plans and Specifications which shall be necessary or desirable to complete
the Improvements in substantially the manner contemplated by the Plans and
Specifications; to employ such contractors, subcontractors, agents,
architects and inspectors as shall be required for said purposes; to pay,
settle or compromise all existing or future bills and claims which are or
may be liens against the Property, or may be necessary or desirable for the
completion of the Improvements or the clearance of title to the Property;
to execute all applications and certificates in the name of Borrower which
may be required by any construction contract; and to do any and every other
act with respect to the construction of the Improvements which Borrower may
do in its own behalf. It is understood and agreed that this power of
attorney shall be deemed to be a power coupled with an interest which
cannot be revoked by death or otherwise. Said attorney-in-fact shall also
have power to prosecute and defend all actions or proceedings in connection
with the construction of the Improvements and to take such action and
require such performance as it deems necessary. In accordance therewith
Borrower hereby assigns and quitclaims to Lender all sums to be advanced
hereunder including retainage and any sums in escrow conditioned upon the
use of said sums, if any, for the completion of the Improvements.
ARTICLE 8
General Conditions
------------------
The following conditions shall be applicable throughout the term of this
Agreement:
8.12 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 refuse to
make advances in the absence of strict compliance with any or all thereof and no
other person shall, under any 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 said loan
and shall continue in full force and effect so long as the possibility of such
liability, claims or losses exists.
8.13 Evidence of Satisfaction of Conditions. Any condition of this
Agreement which requires the submission of evidence of the existence or
nonexistence of a specified fact or facts implies as a condition the existence
or nonexistence, as the case may be, of such fact or facts and Lender shall, at
all times, be free independently to establish to its satisfaction and in its
absolute discretion such existence or nonexistence.
8.14 Notices. Each notice, demand, election or request provided for or
permitted to be given pursuant to this Agreement (hereinafter in this paragraph
referred to as "Notice") must be in writing and shall be deemed to have been
properly given or served by personal delivery or by depositing in the United
States Mail, postpaid and registered or certified, return receipt requested, and
addressed to the addresses set forth in Article I hereof. Each notice shall be
effective upon being personally delivered or upon being deposited in the United
States Mail. The time period in which a response to any notice, demand or
request must be given, if any, however shall commence to run from the date of
personal delivery or receipt on the return receipt by the addressee thereof.
Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to be receipt of
the notice, demand or request sent. By giving at least thirty (30) days written
notice thereof, Borrower or Lender shall have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
and each shall have the right to specify as its address any other address within
the United States of America.
8.15 Assignment. Borrower may not assign this Agreement or any of its
rights or obligations hereunder without the prior written consent of Lender.
8.16 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.
8.17 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.
8.18 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.
8.19 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.
8.20 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.
8.21 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
8.22 Counterparts. This Agreement may be executed in multiple counterparts,
which taken together shall be deemed one original.
ARTICLE 9
Special Conditions
------------------
9.3 Conditions to Disbursements in Excess of Two Hundred Thousand and
No/100 ($200,000) Dollars. In addition to all other conditions to Lender's
obligation to make disbursements of Loan proceeds hereunder, including, without
limitation, those set forth in Article 5 hereof, Lender shall have no obligation
to disburse proceeds of the Loan in excess of the cumulative amount of Two
Hundred Thousand Dollars and No/100 ($200,000 ) Dollars, unless and until
Borrower shall have satisfied the following conditions to Lender's satisfaction:
(a) Lease. Borrower shall have entered into a lease agreement with a
tenant reasonably acceptable to Lender covering not less than 7,000 square
feet of leasable space within the Improvements on such terms as shall be
satisfactory to Lender in Lender's reasonable judgment and shall have
delivered Lender satisfactory evidence of same.
(b) Permits. Borrower shall have provided Lender with a photocopy of a
Building Permit issued by ▇▇▇▇▇▇ County, Georgia or the City of Palmetto,
Georgia, whichever is applicable, together with any and all curb cut,
sewer, water tap and other permits required for development of the
Property.
9.4 Failure to Satisfy Paragraph 9.1 Requirements. The inability of
Borrower to satisfy the requirements of Paragraph 9.1 on or prior to March 30,
2004 shall constitute an Event of Default hereunder and under the other Loan
Documents and shall entitle Lender to exercise any and all of the remedies set
forth herein and under the other Loan Documents.
9.3 Loan Terms. The Loan shall be evidenced by the Note, and shall bear
interest at a rate of the prime rate, as published by the Wall Street Journal on
the date the interest is paid, plus one-half of one percent (.5%) per annum.
Borrower shall pay to Lender a loan origination fee in the amount of 1.25 % of
the Loan Amount, which shall be due and payable upon the earlier of (i) nine (9)
months after the execution of this Agreement (provided, however, that if
Borrower has not sold Tract 2 of the Land within said 9-month period, then said
date shall be twelve (12) months from the date of execution hereof), or (ii) six
months after Advance Auto Parts ("Advance") takes occupancy of the premises
described in the Deed to Secure Debt and Security Agreement, pursuant to that
certain lease agreement between Advance and the Borrower dated March 30, 2004.
Notwithstanding the foregoing to the contrary, the indebtedness secured hereby
shall be paid on or before February 28, 2007.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement under
seal on the date first above written.
BORROWER:
CROSS COUNTRY PROPERTIES III, LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
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▇▇▇ ▇. ▇▇▇▇▇, President
LENDER:
CCI SOUTHEAST, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President