EXHIBIT 10.3(b)
CONSTRUCTION LOAN AGREEMENT
April 8, 1998
Surrey, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ van der ▇▇▇▇▇
Re: Chase Bank of Texas, National Association $2,300,000.00
Advance/Term Loan to Surrey, Inc.
Dear Mr. van der ▇▇▇▇▇:
RECITALS
Reference is hereby made to that certain promissory note of even
date herewith (the "Advance/Term Note") executed by Surrey, Inc. (the
"Borrower"), payable to the order of Chase Bank of Texas, National Association
(the "Lender"), a national banking association, in the original principal sum of
$2,300,000.00. The Advance Term Note has been issued pursuant to the terms of
the Loan Agreement (the "Loan Agreement") between Borrower and Lender dated on
or about the date hereof and is the Advance/Term Note described in the Loan
Agreement. The Advance/Term Note shall be governed by the terms of the Loan
Agreement, although the provisions of this Agreement shall control with respect
to advances under the Advance/Term Note. Capitalized terms used herein which are
not otherwise defined shall have the same meaning here as in the Loan Agreement.
The Advance/Term Note shall be secured, among other security, by the
security provided for in the Loan Agreement, including without limitation the
Deed of Trust and the Security Agreement. The Deed of Trust covers and affects,
among other property, certain real property (the "Property") in ▇▇▇▇▇▇ County,
Texas, more particularly described in Exhibit A attached hereto, together with
all improvements now or hereafter located on the Property.
The proceeds to be advanced under and evidenced by the Advance/Term
Note shall be used solely for the following purposes: (1) up to $1,198,053.32
shall be used to refinance existing indebtedness secured by liens against the
Property, and (2) up to $1,101,946.68 shall be used for payment of, or to
reimburse Borrower for, a portion of the costs and expenses of construction of
the approximately 39,120 square feet of additional office/warehouse space (the
"Improvements") to
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be constructed to the Borrower's existing manufacturing facilities located on
the Property and to reimburse the Borrower for the costs of the septic
improvements previously installed on the Property.
The Improvements shall be constructed by ▇▇▇▇▇ Van Waes d/b/a Van &
Van Austin, as contractor (the "Contractor"), and are contemplated in the
construction contract (the "Construction Contract") executed or to be executed
by and between the Contractor and the Borrower. The Improvements shall be
constructed in accordance with the plans and specifications (the "Plans and
Specifications") for such Improvements prepared by the Contractor, a copy of
which has been or will be furnished to and approved by the Lender. The Lender
may, at its option, retain a person or entity acceptable to the Lender (the
"Inspector"), at the Borrower' expense, for the purpose of approving the
Construction Contract and the Plans and Specifications; verifying the percentage
of completion of the Improvements; performing inspections as construction
progresses to verify that the Improvements are being constructed to completion
in a manner satisfactory to the Lender and in accordance with the approved Plans
and Specifications; certifying that the amount of each advance included in a
Construction Request for Advance (as defined below) does not exceed the value of
the work completed less prior advances and required retainage; certifying that
the undisbursed Advance/Term Note proceeds (together with other designated and
escrowed sources of funds) are sufficient to complete all of the Improvements;
and performing such other consulting tasks as the Lender shall direct from time
to time.
This Agreement evidences certain agreements among the parties
regarding the loans to be evidenced by the Advance/Term Note, including without
limitation, advances of funds to be made by the Lender against the Advance/Term
Note.
ADVANCE PROCEDURE UNDER ADVANCE/TERM NOTE
Subject to the provisions of this Agreement, from time to time
before the date eight (8) months from the date hereof, the Lender will advance
funds under the Advance/Term Note directly to the Borrower. The funds to be so
advanced will aggregate up to $2,300,000.00, shall be used solely to (1)
refinance up to $1,198,053.32 of the Borrower's existing indebtedness secured by
liens against the Property, and (2) to pay up to $1,101,946.68 of the costs to
construct the Improvements and reimburse the Borrower for the septic
improvements and shall constitute loan proceeds evidenced by the Advance/Term
Note, with interest on the Advance/Term Note being computed with respect to each
advance from the date of the advance. Notwithstanding any contrary provision
contained in this Agreement or in any other Credit Documents, in no event
whatsoever will the amount of funds to be advanced under the Advance/Term Note
be allowed to exceed (as determined by the Lender) the lesser of (a) one hundred
percent (100%) of the appraised value of the Property (assuming completion of
the Improvements) plus $345,000.00 (being the appraised value of certain
equipment covered by the Security Agreements), or (b) $2,300,000.00
The aggregate amount to be advanced under the Advance/Term Note for
construction of the Improvements currently constitutes the total projected costs
to construct the Improvements thereon.
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As of today's date, no additional sums will be required to be paid directly by
the Borrower. If the cost to construct the Improvements increases or if the
aggregate amounts to be advanced under the Advance/Term Note are not adequate to
pay the total costs to construct the Improvements, such excess amounts must be
funded and paid out-of-pocket directly by the Borrower. As a condition to
receiving any advances of funds under the Advance/Term Note to reimburse the
Borrower for the costs to construct the septic improvements, the Borrower will
be required to furnish the Lender with paid invoices and other satisfactory
evidencing the funds which have been paid by the Borrower for the septic
improvements.
Each request for an advance under the Advance/Term Note
("Construction Request for Advance"), other than the initial advance to
refinance the Borrower's existing indebtedness secured by liens against the
Property, shall be submitted to the Lender in writing substantially in the form
of the Construction Request for Advance attached to this Agreement as Exhibit B
and hereby made a part hereof. Each Construction Request for Advance shall be
accompanied by vouchers and invoices satisfactory to the Lender for all labor
and materials for which payment is requested and by such other supporting
evidence as the Lender may require. The Lender reserves the right to delay the
time of advancing any funds requested under a Construction Request for Advance
if it determines that such delay is necessary or prudent to protect its rights,
interests or security. In those instances where a Construction Request for
Advance covers amounts to be paid to Contractor for work undertaken after the
date of this Agreement, it shall also be accompanied by an Application and
Certificate for Payment in the form of Exhibit C attached to this Agreement and
hereby made a part hereof, reflecting that, as to all such Applications and
Certificates for Payment other than for final payment of retainage after
completion of the Improvements, retainage of at least 10% of the amount of the
"total completed and stored to date" has been deducted in calculating the
"current payment due", duly sworn to and executed by the Contractor and duly
executed and certified by the Inspector (if required by the Lender) and the
Borrower. In addition, Lender absolutely reserves the right to retain such
additional funds as Lender is required to retain by law or which Lender
determines in its sole discretion are necessary to satisfy itself that there
will be no unpaid claims for labor or materials. Lender reserves the right to
retain such funds for such length of time as Lender may deem necessary to
satisfy itself that there will be no unpaid claims for labor or materials. (It
is understood that Lender shall have no duty to Borrower or to anyone else to
delay the time of advancing any funds or to retain any funds for any period, and
that Lender shall have no duty or obligation to Contractor to pay Contractor,
make any other payments or advances to Borrower, Contractor or anyone else or in
any other way to pay or protect Contractor, and all such acts by Lender shall be
solely for its own benefit and satisfaction.)
Within five (5) business days after receipt of a proper Construction
Request for Advance and approval thereof by the Inspector (if required by the
Lender) and the Lender, the Lender agrees with the Borrower that the Lender will
advance the amount requested (net of retainage), provided that all terms of this
Agreement are complied with and all conditions to that advance have been
satisfied. In any event, the Lender shall not be required to make more than one
(1) advance under the Advance/Term Note per calendar month.
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CONDITIONS TO ADVANCES
The Lender shall have no obligation to make any advance under the
Advance/Term Note unless simultaneously with or before the advance:
1. The Lender has received and approved an appraisal (the
"Appraisal") of the Property (assuming completion of the
Improvements). Such Appraisal (a) must show the "market
value" of the Property (as defined in the Financial
Institutions Reform, Recovery and Enforcement Act of
1989) in the aggregate to be an amount satisfactory to
the Lender in its discretion, (b) shall be prepared by
an appraiser acceptable to the Lender in its discretion,
(c) shall utilize methodology acceptable to the Lender,
(d) shall otherwise be in form and substance acceptable
to the Lender, (e) shall comply with all regulatory
guidelines applicable to the Lender, and (f) shall
recite that the fair market value of the Property
(assuming completion of the Improvements) equals or
exceeds $2,705,883.00.
2. The Lender has received and approved, in its discretion,
all written evidence required by the Lender confirming
(a) the absence of any hazardous materials on or under
the Property and (b) that the current status of the
Property does not violate any applicable laws relating
to health or the environment.
3. The Inspector has provided a report to the Lender
stating the percentage of completion of the Improvements
(it being understood that the amount advanced to pay the
costs of construction of the Improvements will not
exceed the percentage of completion of the Improvements)
and certifying that the amount of each advance included
in a Construction Request for Advance does not exceed
the value of the work completed less prior advances and
required retainage;
4. The Lender has received a Construction Request for
Advance, for a advance under the Advance/Term Note, in
the form, signed and with supporting materials, as
required above.
5. The Lender has received and approved: (i) a copy of the
Plans and Specifications, satisfactory in all respects
to the Lender and the Inspector (if required by the
Lender), for complete construction of the Improvements,
initialed by the Borrower and the Contractor to evidence
their approval, (ii) a Contractor/Lender Agreement (the
"Contractor/Lender Agreement") executed by the
Contractor in the form required by the Lender and (iii)
a Design Professional/Lender Agreement (the "Design
Professional/Lender Agreement") executed by any
architect, engineer or design professional (other than
Contractor) engaged by the Borrower in connection with
the construction of the Improvements in the form
required by the Lender. (The Lender's
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review and approval of all such materials referred to in
items (3) and (4) above and this paragraph shall be
solely for its own benefit.)
6. The Lender is satisfied that all subcontractors and all
bills incurred for labor and materials in connection
with the construction of the Improvements are being
currently paid the entire amount then due (less only any
applicable retainage). In this respect, prior to any
work being commenced or any materials delivered by any
subcontractor or materialman, the Borrower shall have
delivered to the Lender, executed affidavit/lien waivers
and subordination agreements in a form acceptable to the
Lender, from such subcontractor or materialman.
7. Except for work for which the Lender has been provided
lien waivers in the form required by the Lender, the
Borrower hereby warrants to the Lender that no materials
have been or will be furnished nor labor performed for
the construction of the Improvements before the signing,
notary, acknowledgment, delivery and recording of the
Deed of Trust.
8. The Lender is satisfied that the unadvanced proceeds
under the Advance/Term Note available to be advanced to
pay for the construction of the Improvements, together
with the requisite equity funds to be paid directly by
the Borrower, will be sufficient to pay for the
completion of all of the Improvements in accordance with
the Plans and Specifications therefor and all legal
requirements which apply to the Property; or if such
proceeds and equity funds are not adequate, additional
funds are deposited by the Borrower with the Lender in
order to provide sufficient funds to complete the
Improvements in accordance with the Plans and
Specifications and all legal requirements which apply to
the Property.
9. The Lender is satisfied, in its reasonable
determination, that the Improvements are being
constructed on schedule to be completed no later than
August 1, 1998 and in accordance with the Plans and
Specifications and applicable law. (It is understood,
however, that the Lender shall have no duty to the
Borrower or anyone else to make any inspection or
determination regarding construction, and all such
inspections, if any, shall be solely for the Lender's
own benefit and satisfaction).
10. After the location of any foundation for the
Improvements has been established and staked on the
ground and before any such foundation is poured, the
Lender shall have been provided with a current survey of
the Property by a state-licensed surveyor who is
acceptable to the Lender. Such survey shall contain a
surveyor's certificate satisfactory to the Lender and
shall reflect that the location of the Improvements and
all other improvements on the Property will be entirely
within the boundary lines of the Property and will not
encroach upon any flood plain or special flood hazard
area, set-back line, easement, right-of-way or adjoining
property or breach or violate any
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covenant, condition or restriction affecting the
Property or any legal requirement, and that no adjoining
structure encroaches upon the Property. Upon completion
of the Improvements, if requested by the Lender, the
Borrower shall provide the Lender with an updated
"as-built" survey of the Property which meets the
requirements set forth in this paragraph.
11. The Lender is satisfied that each advance against the
Advance/Term Note will be secured by a first lien
against the Property, all Improvements and all other
personalty described in the Deed of Trust and the
Security Agreement.
12. The Lender is furnished a Mortgagee Title Insurance
Policy (the "Title Policy") in Texas Standard Form in
the full amount of the Advance/Term Note, issued by
Heritage Title Company of Austin, Inc. to the Lender
insuring that good and indefeasible fee simple absolute
title to the Property is vested in the Borrower,
insuring that the lien evidenced by the Deed of Trust is
a first priority lien, and containing only (a) the
normal "pending disbursement" and "completion of
improvements" exceptions and (b) such other exceptions
as shall be previously approved by the Lender in
writing. The form and substance of the Title Policy
shall in all respects be satisfactory to the Lender. The
Lender shall also have been furnished with legible
copies of all instruments reflecting exceptions in the
Title Policy.
13. The Lender is furnished with such insurance coverage and
policies or certificates as it requires from time to
time, issued by companies acceptable to the Lender,
including (without limitation) an original policy or
certificate of fire and extended coverage insurance of
the Improvements at least equal in amount to the
replacement cost of the Improvements, with an
endorsement naming the Lender as mortgagee insured and
prohibiting policy cancellation or modification without
30 days' prior written notice to the Lender. (Builder's
risk insurance will satisfy this requirement during
actual construction only, provided that the Lender is
named as mortgagee insured and the policy is in all
respects satisfactory to the Lender.)
14. If requested or required by the Lender, the Borrower
shall have provided the Lender with satisfactory
evidence, including without limitation, all
certificates, licenses, zoning variances, permits and no
action letters, that the Property, the Plans and
Specifications for the Improvements and the actual
construction of the Improvements have met and are
meeting the approval of the appropriate architectural
control committees (if any) and comply with any other
law, ordinance, order, rule, regulation, restriction,
zoning ordinance or other legal requirements which apply
to the Property.
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15. The Lender has received the following items, all
properly executed, notarized, recorded (if necessary or
required by the Lender) and otherwise completed to the
satisfaction of the Lender:
a. The Advance/Term Note;
b. The Deed of Trust;
c. The Security Agreement;
d. This Agreement;
e. The Appraisal;
f. The applicable Construction Request for
Advance (other than for the initial advance
under the Advance/Term Note which will be
used to refinance the Borrower's existing
indebtedness secured by liens against the
Property);
g. The Title Policy;
h. The insurance certificates or policies
required by the Credit Documents;
i. The survey(s) of the Property at the time
required by this Agreement;
j. The Construction Contract;
k. The final Plans and Specifications
(acceptable to the Lender in all respects);
l. The approvals of the Plans and
Specifications from all architectural
control committees (if any) and all other
persons and entities having the right to
approve of such Plans and Specifications;
m. All applicable governmental building and
site permits;
n. All other information required under the
provisions of this Agreement or the other
Credit Documents;
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o. Any other papers which the Lender may
reasonably require at any time.
16. The Lender is satisfied that no Event of Default or
Default has occurred.
17. Prior to the final advance of retainage under the
Advance/Term Note, the Lender shall have received the
following, on or before the date of such advance, in
form and substance satisfactory to the Lender:
a. Certificates of Occupancy issued by all
appropriate governmental authorities for all
portions of the Improvements;
b. If required by the Lender, an "as-built"
current survey showing the location of the
Improvements and complying with all other
survey requirements stated above;
c. If available, a complete set of "as-built"
plans and specifications for the
Improvements certified as accurate by the
Contractor;
d. An Affidavit of Bills Paid (in form and
substance satisfactory to the Lender) from
the Contractor and any subcontractors from
whom the Lender requests such an affidavit
in order to satisfy the Lender that the
construction of the Improvements has been
completed lien-free and that the costs of
all materials furnished and labor performed
in connection therewith have been paid in
full; and
e. An executed Certificate of Acceptance from
the Borrower (in form and substance
satisfactory to the Lender) whereby the
Borrower accept the Improvements as
substantially completed in accordance with
the approved plans and specifications
therefor and acknowledges that it has
received no notice of any claim for unpaid
construction costs with respect to the
Improvements.
EVENTS OF DEFAULT
The occurrence of any of the following, if not cured within any
applicable notice and/or cure period provided for in the Loan Agreement, shall
be an Event of Default hereunder:
1. Failure of the Borrower to perform, observe or comply
with any of the terms, covenants, conditions or
provisions of the Construction Contract.
2. A survey of the Property shall show that any
improvements located thereon are not entirely within the
boundary lines of the Property or encroach upon any
flood plain or special flood hazard area, set-back line,
easement, right-of-way, street or adjoining
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property or that any legal requirement has been breached
or that any adjoining structure encroaches upon the
Property.
3. The Inspector or an architectural firm of recognized
standing shall at any time certify to the Lender in
writing that the Improvements are not at the date of
such certificate being constructed with reasonable
diligence and/or in accordance with the Plans and
Specifications and the Construction Contract.
4. Failure of the Borrower to complete the construction of
the Improvements in accordance with the Plans and
Specifications and receive a Certificate of Occupancy
therefor from the appropriate governmental authorities
on or before August 1, 1998.
5. Failure of Borrower to pay for and deliver to Lender
within a reasonable time after completion of the
Improvements, an endorsement to the Policy deleting all
exceptions under such policy relating to (a) liens
arising by reason of unpaid bills or claims for work
performed or materials furnished in connection with the
Improvements, and (b) the standard "pending
disbursements" limitations to the Policy.
6. An Event of Default shall have occurred under the Loan
Agreement.
RIGHTS SUBSEQUENT TO AN EVENT OF DEFAULT
At any time after an Event of Default which has not been waived by
the Lender in writing or cured to the Lender's satisfaction, the Lender shall
have the right, at its option, to exercise all rights and remedies available to
the Lender under the Loan Agreement, the other Credit Documents and applicable
law. In addition to these rights and remedies, upon the occurrence of (a) any
Event of Default or (b) any Default, the commitment of the Lender (if then
outstanding) to make advances against the Advance/Term Note shall cease until
the Lender declares that all such Events of Default and Defaults have been cured
to the Lender's satisfaction, or until the Lender shall have agreed in writing
to fund despite the default or waived the default. The Lender may, at its
option, continue or at any time recommence making one or more advances and in
any case all advances by the Lender shall be deemed to have been made pursuant
to a commitment (as such term is used and defined in the Uniform Commercial Code
as enacted and in force in the State of Texas) and pursuant to this Agreement.
OTHER AGREEMENTS AND REPRESENTATIONS
1. The Borrower shall allow the Lender to place a sign on
the Property indicating that the Lender is the lending
institution with respect to the construction of the
Improvements.
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2. The Borrower shall permit the Lender and its duly
authorized agents free access to the Property and shall
make available for audit and inspection by the Lender,
at any time during regular business hours, all property,
equipment, books or other records relating to the
Property or construction of the Improvements.
3. If the Lender determines at any time that the unadvanced
proceeds under the Advance/Term Note will be
insufficient to pay for the completion of the
Improvements in accordance with the Plans and
Specifications therefor and all legal requirements which
apply to the Property, the Borrower shall deposit
additional funds with the Lender in an amount
satisfactory to the Lender to provide sufficient funds
to complete the Improvements in accordance with the
Plans and Specifications therefor and all legal
requirements which apply to the Property. Upon such an
event, the Lender shall not be obligated to make any
further advances of funds under the Advance/Term Note
until the Borrower shall have made such satisfactory
arrangements to the Lender to provide such additional,
sufficient funds.
4. No material change will be made in the Plans and
Specifications without the prior written consent of the
Lender. For purposes of this paragraph, a change shall
not be considered a material change unless it alone or
together with any other prior change (a) such change
alone increases or decreases the contract price for, or
other costs in respect of construction of the
Improvements, by more than $5,000.00, (b) such change,
together with all other changes, increases or decreases
the contract price for, or other costs in respect of
construction of the Improvements by more than
$20,000.00, (c) extends or is likely to extend (in the
reasonable judgment of the Lender) the completion date
of the Improvements past August 1, 1998 or (d) requires
the prior approval of any applicable subdivision
planning committee, architectural control committee or
any other person or entity according to the terms of any
restrictive covenants, zoning ordinances or other legal
requirements which apply to the Property.
5. The Borrower will prosecute the construction of the
Improvements in accordance with the plans and
specifications therefor, all applicable legal
requirements and the Credit Documents, and with
diligence and dispatch and without unreasonable
cessation of work thereon, and will complete such
construction before August 1,1998.
6. The Borrower has obtained (or will obtain prior to
receiving any funds under the Advance/Term Note) all
necessary approvals of the Plans and Specifications from
all subdivision planning committees or architectural
control committees, if any, having jurisdiction over the
Property and any other person or entity whose approval
of the Plans and Specifications is required under any
restrictions, zoning ordinances or other legal
requirements applicable to the Property. All of the
Plans and
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Specifications comply with all restrictions, zoning
ordinances and other legal requirements applicable to
the Property.
7. As of the date hereof, the Borrower is in compliance
with all terms, covenants and provisions of this
Agreement and all other Credit Documents and no Default
or Event of Default exists.
MISCELLANEOUS AGREEMENTS
The Lender shall not be obligated to the Borrower to determine that
any subcontractor has not breached any of its agreements with the Borrower, nor
will the Lender for any reason assume (or be construed to have assumed) any of
the obligations of the Borrower to any subcontractor or of any subcontractor to
the Borrower.
This Agreement constitutes the entire agreement of the parties,
supersedes and cancels any prior understandings or written or oral agreements
between the parties concerning the matters covered herein, including without
limitation, advances hereunder, and can be modified or varied only by a written
instrument subscribed to by all of the parties hereto; provided, however, that
all written or oral representations made by the Borrower to the Lender with
respect to the subject matter hereof shall survive the execution of this
Agreement. The Lender has no commitment to lend sums to the Borrower other than
as specifically set forth herein and in the other Credit Documents.
If there are any conflicts or inconsistencies between this Agreement
and any of the other Credit Documents, this Agreement shall prevail and control.
This Agreement shall bind and benefit the parties hereto and their
respective heirs, legal representatives, successors and assigns. However, any
attempted assignment of any rights of the Borrower hereunder without the prior
written consent of the Lender shall be void.
Any notice, request or other communication required or permitted to
be given hereunder shall be given in accordance with the terms of the Loan
Agreement.
If this letter correctly states your understanding of our agreements
concerning the matters referred to herein, please indicate your acceptance
hereof and agreement hereto by executing copies of this letter in the space
provided below.
THIS CONSTRUCTION LOAN AGREEMENT, TOGETHER WITH ALL OTHER CREDIT
DOCUMENTS, CONSTITUTES A WRITTEN LOAN AGREEMENT AND REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES TO IT AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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Very truly yours,
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Vice President
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"Lender"
AGREED TO AND ACCEPTED BY BORROWER:
SURREY, INC.
a Texas corporation
By: /s/ ▇▇▇▇ van der ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ van der ▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
"Borrower"
ATTACH:
Exhibit A - The Property
Exhibit B - Construction Request for Advance
Exhibit C - Application and Certificate for Payment
EXHIBIT A
Lots Two (2), Three (3), Four (4), Five (5), and Eight (8), NORTH RIM
SUBDIVISION, a subdivision in ▇▇▇▇▇▇ County, Texas, according to the map or plat
thereof, recorded in Volume 83, Page(s) 161A-164A of the Plat Records of ▇▇▇▇▇▇
County, Texas.