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EXHIBIT 10.26
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), made this 1st day of April,
1998, by and between BPG INDUSTRIAL PARTNERS II, LLC, a limited liability
company organized and existing under the laws of the State of Maryland (the
"Borrower") and NATIONSBANK, N.A., a national banking association, its
successors and assigns (the "Lender"). BIORELIANCE CORPORATION, a Delaware
corporation (the "Corporate Guarantor") joins in this Agreement for purposes of
acknowledging and consenting to its terms and conditions.
RECITALS
1. The Corporate Guarantor has acquired the leasehold interest in
certain real estate situate in ▇▇▇▇▇▇▇▇▇▇ County, Maryland known as Parcel N/Q
("Parcel N/Q") in the Life Sciences Center, ▇▇▇▇▇▇▇▇▇▇ County, Maryland (the
"County"), and more fully described in the Deed of Trust (as hereinafter
defined), pursuant to that certain Lease Purchase Agreement of even date
herewith by and between the County, as landlord, and the Corporate Guarantor, as
tenant (the "Ground Lease").
2. The Corporate Guarantor is leasing a portion of Parcel N/Q (the
"Land") to the Borrower pursuant to that certain Lease Agreement of even date
herewith by and between the Corporate Guarantor, as landlord, and the Borrower,
as tenant (the "Sub-Lease"). The Borrower proposes to construct certain
improvements on the Land in accordance with the Plans and Specifications (as
hereinafter defined) consisting of a shell building and mezzanine, containing
58,733 square feet of space, more or less, certain systems in the building
shell, and the parking lot, sidewalks, driveways and landscaping (the
"Improvements"). Upon completion of the Improvements, the Property (as
hereinafter defined) shall be leased to MAGENTA Corporation (the "Affiliate")
pursuant to the terms of that certain Lease Agreement of even date herewith (the
"Facility Lease") by and between the Borrower, as landlord, and the Affiliate,
as tenant.
3. The Borrower has applied to the Lender for a loan (the "Loan") in
the principal sum of Four Million Six Hundred Fifty Thousand Dollars
($4,650,000) to be evidenced by the Borrower's Deed of Trust Note (the "Note")
of even date herewith to finance the construction of the Improvements.
4. The Note is secured by, among other things, a Leasehold Deed of
Trust, Assignment and Security Agreement of even date herewith (the "Deed of
Trust") from the Borrower, the Corporate Guarantor and the Affiliate in favor of
the Lender covering the Borrower's, the Corporate Guarantor's and the
Affiliate's interest in Parcel N/Q and the Improvements and such other real and
personal property as therein more particularly set forth (collectively, the
"Property").
5. The Lender has agreed to make the Loan upon the condition that this
Agreement be executed and delivered to assure the application of the net
proceeds of the Loan to (i) the costs of the construction of the Improvements in
accordance with the loan budget attached hereto as EXHIBIT
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A and incorporated herein by reference (as amended from time to time with the
approval of the Lender, the "Budget"); (ii) of acquiring the Property, (iii)
obtaining the Loan, (iv) leasing the building and all related activities,
including, without limitation, costs of all appraisals, inspections, studies and
investigations of the Property prior to the date hereof, title reports and
surveys, fees of architects, engineers, site planners and other consultants,
reasonable attorneys' fees (including those of Lender's counsel), all fees and
costs in connection with applying for and obtaining any permits and approvals,
(v) constructing the Improvements, (vi) the amount payable to the Borrower in
consideration for its option to purchase or lease the Land, (vii) reimbursements
to the Corporate Guarantor of amounts advanced to the Borrower by the Corporate
Guarantor, (viii) the Lender's commitment fee, and (ix) payments of interest
under the Note in such amounts as are set forth in the Budget, until the
Leasehold Improvement Commencement Date (as hereinafter defined).
NOW, THEREFORE, and in consideration of these presents, and in further
consideration of the mutual covenants and agreements herein set forth and of the
sum of Ten Dollars ($10.00) lawful money of the United States of America by each
of the parties to the other paid, receipt of which is hereby acknowledged, the
parties hereto do hereby covenant and agree as follows:
ARTICLE I. DEFINITIONS; RULES OF CONSTRUCTION.
Section I.1 Definitions. The Borrower and the Lender hereby
agree that, unless the context otherwise specifies or requires, the following
terms shall have the meanings herein specified, such definitions to be
applicable equally to the singular and the plural forms of such terms and to all
genders:
(a) "Architect" shall mean the architect named in the
Architect's Contract, if any, and his or its successors and permitted assigns.
(b) "Architect's Contract" shall mean collectively, the scope
of services agreement dated September 2, 1997 and the summary of fees dated
September 10, 1997, both by and between the Borrower, as owner and ▇▇▇▇▇▇▇▇,
Inc., as architect, or any contract for architectural services relating the
construction of the Improvements made by the Borrower and an architect and
approved in writing by the Lender, as the same may be amended from time to time
with the prior written approval of the Lender.
(c) "Banking Day" shall mean any day that is not a Saturday,
Sunday or banking holiday in the State of Maryland.
(d) "BioReliance Loan" shall mean any loan now or hereafter
made to the Corporate Guarantor and/or the Affiliate in the principal amount as
may be mutually agreed upon by the Lender, the Corporate Guarantor and the
Affiliate for the purpose of constructing the Leasehold Improvements, as the
same may be amended, renewed, modified, increased or refinanced, from time to
time.
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(e) "Commitment" shall mean the commitment letter from the
Lender to the Borrower and the Guarantors dated February 19, 1998.
(f) "Completion Date" shall mean the earlier of (i) July 31,
1998 or (ii) the date the Lender receives evidence satisfactory to the Lender in
all material respects that the Borrower has substantially completed the
Improvements in accordance with the Plans and Specifications.
(g) "Construction Contract" shall mean the construction
management agreement dated December 18, 1997 by and between the Borrower, as
owner, and The ▇▇▇▇▇▇▇ -▇▇▇▇▇▇ Contracting Company, as construction manager, or
any contract for the management of the construction of the Improvements made by
the Borrower and a construction manager and approved in writing by the Lender,
as the same may be amended from time to time with the prior written approval of
the Lender.
(h) "Construction Manager" shall mean the construction manager
named in the Construction Contract and his or its successors and permitted
assigns.
(i) "County" has the meaning set forth in the Recitals to this
Agreement.
(j) "Default" shall mean an event which, with the giving of
Notice or lapse of time, or both, would constitute an Event of Default under the
provisions of this Agreement.
(k) "Event(s) of Default" shall mean the occurrence of any one
or more of the events specified in Article VI of this Agreement and the
continuance of such event beyond the applicable grace and/or cure periods
therefor, if any, set forth in Article VI.
(l) "Force Majeure" shall mean events occasioned by strikes,
lock-outs, war or civil disturbance, natural disaster or acts of God which cause
a delay in the Borrower's performance of an obligation; provided, however, that
the Borrower must give Notice to the Lender within ten (10) days after the
Borrower's having knowledge of the occurrence of an event which it believes to
constitute an event of Force Majeure.
(m) "Governmental Authority or Authorities" shall mean any
governmental or quasi-governmental entity, including, without limitation, any
department, commission, board, bureau, agency, administration, service or other
instrumentality of any governmental entity.
(n) "Guarantors" means collectively the Corporate Guarantor
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and their respective, successors,
successors and assigns.
(o) "Hydric Soils" shall mean any soil category upon which
building would be prohibited or restricted under applicable governmental
requirements, including, without limitation, those imposed by the U.S.
Army Corps of Engineers.
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(p) "Improvements" has the meaning set forth in Recital 2 to
this Agreement.
(q) "Inspecting Engineer" shall mean such person or firm as
the Lender may from time to time appoint or designate for purposes related to
the inspection of the progress of the construction of the Improvements,
conformity of construction with the Plans and Specifications, and for such other
purposes as the Lender may from time to time deem appropriate or as may be
required by the terms of this Agreement.
(r) "Leasehold Improvements" shall mean all improvements now
or hereafter made to the Property the costs of which are advanced pursuant to
the BioReliance Loan.
(s) "Leasehold Improvement Completion Date" shall mean the
earlier of (i) the date which is twelve (12) months from the date hereof, or
(ii) the date the Lender receives a copy of a certificate of occupancy for the
Property issued by the County.
(t) "Loan Documents" shall mean the Commitment, this
Agreement, the Note, the Deed of Trust and any and all other documents which the
Borrower, the Guarantors or any other party or parties have executed and
delivered, or may hereafter execute and deliver, to evidence, secure or
guarantee the Obligations, or any part thereof, as the same may from time to
time be extended, amended, restated, supplemented or otherwise modified.
(u) "Notice" shall mean a written communication delivered by
hand, or sent by overnight courier, or by certified mail, postage prepaid,
return receipt requested, to the party to whom communication is to be given, at
the following addresses:
Borrower: BPG Industrial Partners II, LLC
Tavern Square, Suite 305
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to: Arent, Fox, Kintner, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. Brand, Esq.
Corporate
Guarantor: BioReliance Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
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with a copy to: Shulman, Rogers, Gandal, Pordy & ▇▇▇▇▇, P.A.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire
Lender: NationsBank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to Ober, Kaler, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or at such other address as any party shall have notified the others in the
manner set forth in this definition. The Lender will contemporaneously send
copies of all written notices sent to the Borrower hereunder to the Corporate
Guarantor.
(v) "Obligations" shall mean all present and future debts,
obligations and liabilities of the Borrower to the Lender arising pursuant to,
and/or on account of, the provisions of this Agreement, the Note, the
BioReliance Loan and any of the other Loan Documents, including, without
limitation, the obligation (i) to pay all principal (including, again without
limitation, any principal advanced after the date of the Deed of Trust and any
principal that is repaid and readvanced), interest, late charges and prepayment
premiums (if any) due at any time under the Note; (ii) to pay all Expenses (as
defined in the Deed of Trust), indemnification payments and other sums due at
any time under the Deed of Trust, together with interest thereon as provided in
Section 4.17 of the Deed of Trust; and (iii) to perform, observe and comply with
all of the terms, covenants and conditions, expressed or implied, which the
Borrower is required to perform, observe or comply with pursuant to the terms of
the Deed of Trust or any of the other Loan Documents.
(w) "Person" shall mean an individual, a corporation, a
partnership, a joint venture, a trust, a limited liability company, an
unincorporated association, any Governmental Authority or any other entity.
(x) "Plans and Specifications" shall mean (i) the
architectural and structural plans entitled "Magenta Corporation, Shady Grove
Life Science Center, Rockville, Maryland," dated November 17, 1997, prepared by
▇▇▇▇▇▇▇▇, Inc. and Faisant Associates, Inc., and (ii) specifications entitled
"Project Manual for Magenta Corporation, Shady Grove Life Sciences Center,
Rockville Maryland," dated November 17, 1997, prepared by ▇▇▇▇▇▇▇▇, Inc. and
Faisant Associates, Inc., as each of the same may be modified with the prior
written approval of the Lender. For purposes of determining whether the
Improvements have been completed in substantial accordance with the
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Plans and Specifications, the Plans and Specifications shall not be deemed to
include the items set forth in Schedule A attached hereto and incorporated
herein by this reference.
(y) "Survey" shall mean a plat of the Land which clearly
designates at least (i) the location of the perimeter of the Land by courses and
distances; (ii) the location of all easements, rights-of-way, alleys, streams,
waters, paths and encroachments; (iii) the location of all building restriction
lines and set-backs, however established; (iv) the location of any streets or
roadways abutting the Land; and (v) the then "as-built" location of the
Improvements and the relation of the Improvements by courses and distances to
the perimeter of the Land, building restriction lines and set-backs, all in
conformity with the Minimum Standard Detail Requirements for Land Title Surveys
adopted by the American Congress on Surveying and Mapping (1988 Edition).
(z) "Taxes" shall mean all taxes and assessments whether
general or special, ordinary or extraordinary, or foreseen or unforeseen, which
at any time may be assessed, levied, confirmed or imposed on the Borrower or on
any of its properties or assets or any part thereof or in respect of any of its
franchises, businesses, income or profits.
Section I.2 Rules of Construction. The words "hereof",
"herein", "hereunder", "hereto", and other words of similar import refer to this
Agreement in its entirety. The terms "agree" and "agreements" mean and include
"covenant" and "covenants". The headings of this Agreement are for convenience
only and shall not define or limit the provisions hereof. All references (a)
made in the neuter, masculine or feminine gender shall be deemed to have been
made in all such genders, (b) made in the singular or plural number shall be
deemed to have been made, respectively, in the plural or singular number as
well, (c) to the Land, the Improvements or the Property shall mean all or any
portion of each of the foregoing, respectively, and (d) to Section numbers are
to the respective Sections contained in this Agreement unless expressly
indicated otherwise. All capitalized terms used herein and not otherwise defined
shall have the meanings given to such terms in the Deed of Trust.
ARTICLE II. THE LOAN ADVANCES.
Section II.1 The Loan. The Lender agrees to lend to the
Borrower, subject to the terms and conditions herein set forth and in accordance
with the Budget, sums in the aggregate not in excess of the Loan amount.
Interest shall accrue and be payable only on sums advanced hereunder for the
period of time outstanding.
Section II.2 Purpose. The Loan shall be advanced by the Lender
in accordance with the terms of this Agreement to pay those expenses related to
the Loan and the Property described in the Budget. With the prior approval of
the Lender and the Corporate Guarantor, any cost savings, actual or estimated,
affecting any approved Budget category, other than the interest reserve, may be
reallocated by the Borrower to any other approved expense related to the Loan or
the Property. Upon completion of the Improvements and the payment of all costs
in connection therewith, any undisbursed Loan proceeds shall be allocated to the
interest reserve or to such other
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Budget category as the Lender and the Corporate Guarantor shall approve. Each
disbursement from the contingency reserve, if any, shall be subject to approval
by the Lender and the Corporate Guarantor as to the amount and purpose for which
such disbursement will be used.
Section II.3 Requisitions. Advances shall be made not more
frequently than monthly on requisitions in the form approved by the Lender
signed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ on behalf of the Borrower and
approved by the Corporate Guarantor and by or on behalf of the Lender, showing
the percentage of completion and setting forth in trade breakdown form and in
such detail as may be required by the Lender the amounts expended and/or costs
incurred for work done and necessary materials incorporated in the Improvements.
The requisition shall also show the percentage of completion of each line item
on the Borrower's cost breakdown approved by the Lender. The Borrower shall
submit with each requisition a statement that the work completed to the date of
such requisition is of quality consistent with the Plans and Specifications. In
addition, at the time of each request by the Borrower for an advance of a
portion of the Loan proceeds with respect to indirect costs related to the Loan
or the Improvements, the Borrower shall furnish to the Lender such additional
information (such as paid receipts, invoices, statements of accounts, etc.) as
the Lender may reasonably require to assure that amounts requisitioned are to be
used to reimburse the Borrower for costs previously paid by the Borrower or to
pay costs incurred by the Borrower which are due and owing. Advances for direct
construction costs (other than the last advance and for any contracts for less
than $50,000 or for the steel) shall be not more than ninety five percent (95%)
of the amount requisitioned. The final holdback of the direct costs of
construction will be retained until each of the conditions precedent to the
final advance of the Loan proceeds set forth in Section 2.06 hereof shall have
been satisfied to the complete satisfaction of the Lender; provided, however,
that the holdback on any subcontractor, laborer or materialman who has completed
his work or services; whose work or services has been accepted and approved by
the Lender; and who has delivered to the Lender a final waiver of liens, may be
requisitioned by the Borrower and disbursed at the discretion of the Lender. All
advances for indirect expenses related to the Loan or the Improvements and made
in accordance with the Budget or otherwise approved by the Lender and the
Corporate Guarantor, or for contracts for less than $50,000, or for the steel,
shall, be in an amount equal to one hundred percent (100%) of the sum
requisitioned. The Lender shall have a period of five (5) Banking Days within
which to fund each approved requisition.
Section II.4 Conditions Precedent to First Advance. The
following shall be conditions precedent to the first advance of the Loan
proceeds:
(a) The Note, the Deed of Trust and the other Loan Documents
shall have been properly executed and delivered to the Lender, the Deed of Trust
shall be acknowledged and recorded in the appropriate public office or delivered
to a representative of the title company for recording and payment shall have
been made for all conveyancing and recording in connection with the settlement
of the Loan, and for any transfer or documentary stamp taxes due under any
federal, state or municipal law.
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(b) The Lender shall have received a paid policy of title
insurance (American Land Title Association Standard Form "B" Loan Policy -
Current Edition) or a valid and enforceable commitment to issue the same,
together with such reinsurance agreements and direct access agreements as may be
required by the Lender, from a company satisfactory to the Lender in the amount
of the Loan and which may be endorsed or assigned to the successors and assigns
of the Lender without additional cost, insuring the lien of the Deed of Trust to
be a valid first lien on the Property, free and clear of all defects, exceptions
and encumbrances except such as the Lender and its counsel shall have approved.
(c) The Lender shall have received all policies of insurance
required by the terms hereof and by the other Loan Documents to be in effect
from a company or companies and in form and amount satisfactory to the Lender,
including without limitation, flood insurance (in the amount of the Loan or the
maximum limit of coverage available on the Property, whichever is less or
evidence that flood insurance is not available or otherwise required with
respect to the Property), together with written evidence, in form and substance
satisfactory to the Lender, that all fees and premiums due on account thereof
have been paid in full.
(d) The Lender shall have received and approved an appraisal
of the Property.
(e) The Lender shall have received from the Borrower a
complete set of the Plans and Specifications signed and sealed by the Architect,
together with written evidence, in form and substance satisfactory to the
Lender, to the effect that the Plans and Specifications are satisfactory to the
Borrower, the Construction Manager, the Inspecting Engineer and, to the extent
required by applicable law or any effective restrictive covenant, have been
approved by all Governmental Authorities having or claiming jurisdiction and by
the beneficiary of any such restrictive covenant, respectively.
(f) The Lender shall have received and approved a fully
executed copy of the Construction Contract, the Architect's Contract and of all
executed subcontracts as well as any information regarding the Construction
Manager, the Architect or any subcontractor which the Lender has requested.
(g) The Lender shall have received and approved fully executed
copies of the Ground Lease, the Sub-Lease and the Facility Lease.
(h) The Lender shall have received and approved a copy of a
current Survey of the Land certified to the Lender and to the title insurance
company and any recorded subdivision plat of the Land.
(i) The Lender shall have received and approved a site plan
for the Improvements approved by all appropriate Governmental Authorities.
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(j) The Lender shall have received and approved in its
reasonable discretion a cost breakdown in trade form showing, if available,
subcontractors and material suppliers.
(k) The Lender shall have received and approved evidence that
the Construction Manager carries public liability and property damage insurance
and workers' compensation insurance in form, amounts and issued by companies
acceptable to the Lender.
(l) The Lender shall have received and approved an
environmental audit of the Property prepared by a person or firm acceptable to
the Lender.
(m) The Lender shall have received and approved soil reports
which shall (i) demonstrate that the soil conditions of the Land are suitable
for the construction of the Improvements and (ii) evidence to the Lender's
satisfaction that there are no Hydric Soils on the Land.
(n) The Lender shall have received and approved performance
and labor and material payment bonds covering those major subcontractors
designated by the Lender, from a corporate surety acceptable to the Lender and
in dual obligee form, naming the Lender as dual obligee, together with written
evidence, in form and substance satisfactory to the Lender that all fees and
premiums due on account thereof have been paid in full.
(o) The Lender shall have received and approved a copy of the
Borrower's fully executed Operating Agreement and a copy of the recorded
Articles of Organization.
(p) The Lender shall have received and approved a certificate
executed by all of the members of the Borrower authorizing the execution and
delivery of the Loan Documents and consenting to the Loan.
(q) The Lender shall have received and approved an opinion of
counsel for the Borrower as to the Borrower's good standing, form, powers and
authority and as to the validity, binding effect and enforceability of the Loan
Documents.
Section II.5 Conditions Precedent to All Advances. The Lender
shall not be obligated to make any advance of the Loan proceeds unless the
conditions described in Section 2.04 and the following additional conditions
shall have been satisfied:
(a) Until such time as the title insurance company issues
endorsements for the full amount of the Loan, the Lender shall have received a
notice of title continuation or an endorsement to the title insurance policy
theretofore delivered, indicating that since the last preceding advance, there
has been no change in the status of title and no other exceptions not
theretofore approved by the Lender, which endorsement shall have the effect of
advancing the effective date of the policy to the date of the advance then being
made and increasing the coverage
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of the policy by an amount equal to the advance then being made if the policy
does not by its terms provide for such an increase.
(b) No Event of Default shall have occurred and is continuing
under the Note or any of the other Loan Documents.
(c) The Improvements shall not have been materially damaged by
fire or other casualty unless the Lender shall have received proceeds of
insurance sufficient in the judgment of the Lender to effect a satisfactory
restoration of the Improvements in accordance with the terms of the Deed of
Trust.
(d) The Lender shall be satisfied in its reasonable
discretion, based upon the advice of the Inspecting Engineer, that the
Improvements can be completed by a date no later than the Completion Date with
the balance of the Loan proceeds then held by the Lender and available for
advance pursuant to the terms of this Agreement and other funds which the Lender
is reasonably satisfied are available to the Borrower.
(e) The representations and warranties made in Article III of
this Agreement shall be true and correct on and as of the date of the advance
with the same effect as if made on such date.
(f) All terms and conditions of the Loan Documents required to
be met as of the date of the applicable advance shall have been met to the
complete satisfaction of the Lender in its reasonable discretion.
(g) In the reasonable judgment of the Lender, all work
completed at the time of the application for an advance has been performed in a
good and workmanlike manner and all materials and fixtures usually furnished and
installed at that stage of construction have been furnished and installed.
Section II.6 Conditions Precedent to Final Advance. The Lender
shall not be obligated to make the final advance of the Loan proceeds unless the
following additional conditions shall have been satisfied:
(a) The Lender shall have received the final "as built"
Survey.
(b) The Lender shall have received written confirmation from
the Corporate Guarantor that the Improvements have been accepted in accordance
with the terms of the Facility Lease.
(c) The Lender shall have received written confirmation from
the Inspecting Engineer that the Improvements have been substantially completed
in accordance with the Plans and Specifications.
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(d) All terms and conditions of the Loan Documents required to
be met as of the date of the final advance of the Loan proceeds shall have been
met to the complete satisfaction of the Lender in its reasonable discretion.
(e) All final waivers of liens of the Construction Manager and
subcontractors, have been furnished to the Lender or, as to any disputed lien or
claim of lien, a bond in form and substance acceptable to the Lender has been
provided or sufficient funds to cover it are placed in escrow with an escrow
agent satisfactory to the Lender.
Section II.7 Releases of Liens. Before making any advance of
the Loan proceeds, the Lender may require the Borrower to obtain from the
Construction Manager and from all subcontractors acknowledgments of payment and
releases of liens and rights to claim liens for work performed or materials
delivered through the date of the last preceding advance and concurrently with
the final advance. All such acknowledgments and releases shall be in form and
substance satisfactory to the Lender and the title insurance company.
Section II.8 Trust Funds. The Borrower will receive the
advances to be made hereunder and will hold the same as a trust fund for the
purpose of paying the costs of the Improvements in accordance with the Budget
and the Borrower agrees not to expend any part of the proceeds of the Loan for
any purpose except in connection with the uses and purposes provided for in this
Agreement without the prior written consent of the Lender.
Section II.9 Advances to Others for the Account of the
Borrower. At the option of the Lender, the Lender may apply amounts due
hereunder to the satisfaction of the conditions of the Loan Documents and any
amounts so applied shall be part of the Loan and shall be secured by the Deed of
Trust. At the option of the Lender, and without limiting the generality of the
foregoing, the Lender may pay directly from the Loan proceeds all interest bills
rendered by the Lender in connection with the Loan, and following the occurrence
of an uncured Event of Default may make advances directly to the Construction
Manager, the title insurance company, any subcontractor or materialman, or to
any of them jointly, and the execution hereof by the Borrower shall, and hereby
does, constitute an irrevocable authorization to so advance the proceeds of the
Loan. No further direction or authorization from the Borrower shall be necessary
to warrant such direct advances and all such advances shall satisfy pro tanto
the obligations of the Lender hereunder and shall be secured by the Deed of
Trust as fully as if made to the Borrower, regardless of the disposition thereof
by the party or parties to whom such advance is made.
Section II.10. Additional Funds. If at any time the unpaid
costs, both direct and indirect costs and calculated on a line item by line item
basis, necessary to complete the construction of the Improvements exceed the
undisbursed balance of the Loan or of any line item in the Budget, as determined
by the Lender in the reasonable exercise of its discretion, the Borrower shall
provide from sources other than the Loan the funds necessary to pay the total
costs or the costs of the line item in the Budget which exceed the amount
budgeted, as the case may be. The Borrower shall deposit with the Lender from
time to time such amounts in excess of the Loan proceeds as may be
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required to pay these costs (the "Deposit"). In making advances under this
Agreement, the Lender shall draw first upon the Deposit until such sums are
exhausted, and then upon the proceeds of the Loan.
Section II.11. Assignments. The Borrower agrees not to
transfer, assign, pledge or hypothecate any right or interest in any payment or
advance due pursuant to this Agreement, or any of the other benefits of this
Agreement, without the prior written consent of the Lender. Any assignment made
or attempted by the Borrower without the prior written consent of the Lender
shall be void and of no effect. No consent by the Lender to an assignment by the
Borrower shall release the Borrower as the party primarily obligated and liable
under the terms of this Agreement unless the Borrower shall be released
specifically by the Lender in writing. No consent by the Lender to an assignment
shall be deemed to be a waiver of the requirement of prior written consent by
the Lender with respect to each and every further assignment and as a condition
precedent to the effectiveness of such assignment.
Section II.12. Liability of the Lender. The Lender shall in no
event be responsible or liable to any person other than the Borrower and the
Corporate Guarantor for the disbursement of or failure to disburse the Loan
proceeds or any part thereof and neither the Construction Manager nor any
subcontractor, laborer or material supplier shall have any right or claim
against the Lender under this Agreement or the administration thereof.
ARTICLE III. REPRESENTATIONS AND WARRANTIES.
Section III.1 Organization, Power and Authority. The Borrower
represents and warrants that the Borrower is a limited liability company duly
organized and validly existing and in good standing under the laws of the State
of Maryland, has the power and authority to consummate the transactions
contemplated hereby, and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement and the Loan Documents.
Section III.2 Compliance in Zoning. The Borrower represents
and warrants that the anticipated use of the Property complies with applicable
zoning ordinances, regulations and restrictive covenants affecting the Land, all
use requirements of any Governmental Authority having jurisdiction have been
satisfied, and no violation of any law or regulation exists with respect
thereto.
Section III.3 Plans and Specifications. The Borrower
represents and warrants that to the extent required by applicable law or any
effective restrictive covenant the Plans and Specifications have been approved
by all Governmental Authorities having or claiming jurisdiction and by the
beneficiary of any such restrictive covenant.
Section III.4 Building Permits; Other Permits. The Borrower
represents and warrants that all building, construction and other permits
necessary or required in connection with
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the construction of the Improvements have been validly issued and all fees and
bonds required in connection therewith have been paid or posted, as the
circumstances may require.
Section III.5 Utilities. The Borrower represents and warrants
that all utility services necessary for the construction of the Improvements and
the operation thereof for their intended purpose are available, or will be
available when needed, at the boundaries of Parcel N/Q, including, without
limitation, telephone service, water supply, storm and sanitary sewer
facilities, natural gas and electric facilities.
Section III.6 Other Liens. The Borrower represents and
warrants that except as otherwise provided in the Loan Documents, the Borrower
has made no contract or arrangement of any kind the performance of which by the
other party thereto would give rise to a lien on the Property.
Section III.7 Financial Statements. The Borrower represents
and warrants that the financial statements, if any, heretofore delivered to the
Lender are true and correct in all respects, have been prepared in accordance
with generally accepted accounting practices consistently applied, and fairly
present the respective financial conditions of the subjects thereof as of the
respective dates thereof. No material adverse change has occurred in the
financial conditions reflected therein since the respective dates thereof and no
material additional liabilities have been incurred by the Borrower since the
date thereof other than the borrowings contemplated herein or as approved in
writing by the Lender.
Section III.8 Defaults. The Borrower represents and warrants
that there is no default on the part of the Borrower under the Loan Documents
and no event has occurred and is continuing which, with notice or the passage of
time, or both, would constitute a default under the Note or any of the other
Loan Documents.
Section III.9 Permits. The Borrower represents and warrants
that all building, construction and other permits required in connection with
the construction of the Improvements have been validly issued, that all fees and
bonds required in connection therewith (if any) have been paid in full or
posted, as the circumstances may require, and that the Improvements meet zoning
requirements and all sewer and storm drain requirements.
Section III.10 Affirmation of Representations and Warranties.
Each requisition, or the receipt of the funds requested thereby, shall
constitute an affirmation that the foregoing representations and warranties of
the Borrower are true and correct as of the date thereof and, unless the Lender
is notified to the contrary prior to the disbursement of the advance
requisitioned, will be so on the date thereof.
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ARTICLE IV. AFFIRMATIVE COVENANTS AND AGREEMENTS.
Section IV.1 Construction. The Borrower shall continue to
construct the Improvements upon the Land and will prosecute the same in good
faith with diligence and continuity in accordance with the Plans and
Specifications.
Section IV.2 Approval of Construction. The Plans and
Specifications have been approved by the Lender and, to the extent required by
applicable law or any effective restrictive covenant, by all Governmental
Authorities having or claiming jurisdiction and by the beneficiary of any such
restrictive covenant, and all building, construction and other permits necessary
or required in connection with the construction of the Improvements have been
validly issued and all fees and bonds required in connection therewith have been
paid or posted, as the circumstances may require.
Section IV.3 Completion of Construction. Construction of the
Improvements shall be completed by the Borrower on or before the Completion
Date, free and clear of all liens and claims of liens for materials supplied and
for services or labor performed in connection with the construction of the
Improvements.
Section IV.4 Compliance with Laws; Encroachments. The
Improvements shall be constructed in accordance with all applicable (whether
present or future) laws, ordinances, rules, regulations, requirements and orders
of any Governmental Authority having or claiming jurisdiction. The Improvements
shall be constructed entirely on the Land and shall not encroach upon any
easement or right-of-way, or upon the land of others. Construction of the
Improvements shall occur wholly within all applicable building restriction lines
and set-backs, however established, and shall be in strict compliance with all
applicable use or other restrictions and the provisions of any prior agreements,
declarations, covenants and all applicable zoning and subdivision ordinances and
regulations.
Section IV.5 Surveys. Upon the completion of the construction
of the Improvements, the Borrower shall furnish the Lender with a Survey with a
current certification to the Lender by a registered land surveyor of the
jurisdiction in which the Land is located. At the times the Borrower is required
to furnish a Survey to the Lender pursuant to the terms of this Agreement, the
Borrower shall also furnish an original print thereof to the title insurance
company and such Survey shall not be sufficient for the purposes of this
Agreement unless and until the title insurance company shall advise the Lender,
by endorsement to the title insurance policy or otherwise, that the Survey
discloses no violations, encroachments or other variances from applicable
set-backs or other restrictions except such as the Lender and its counsel shall
approve.
Section IV.6 Inspections; Cooperation; Payment of Inspecting
Engineer. The Borrower shall permit the Lender and its duly authorized
representatives (including, without limitation, the Inspecting Engineer) to
enter upon the Land, to inspect the Improvements and any and all materials to be
used in connection with the construction of the Improvements, to examine all
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detailed plans and shop drawings and similar materials as well as all records
and books of account maintained by or on behalf of the Borrower relating thereto
and to discuss the affairs, finances and accounts pertaining to the Loan and the
Improvements with representatives of the Borrower. The Borrower shall at all
times cooperate and instruct the Construction Manager and each and every one of
its subcontractors and materialmen to cooperate with the Lender and its duly
authorized representatives (including, without limitation, the Inspecting
Engineer) in connection with or in aid of the performance of the Lender's
functions under this Agreement. The fees of any Inspecting Engineer engaged or
employed by the Lender in connection with or in aid of the performance of the
Lender's functions under this Agreement shall be paid by the Borrower, provided
however that the Inspecting Engineer's fee will not exceed $2,500 and the
Lender's fees will not exceed an initial fee of $2,000 and $350 at the time of
each requisition under the Loan.
Section IV.7 Vouchers and Receipts. The Borrower shall furnish
to the Lender, promptly on demand, any contracts, bills of sale, statements,
receipted vouchers or agreements pursuant to which the Borrower has any claim of
title to any materials, fixtures or other articles delivered or to be delivered
to the Land or incorporated or to be incorporated into the Improvements. The
Borrower shall furnish to the Lender, promptly on demand, a verified written
statement, in such form and detail as the Lender may require, showing all
amounts paid for labor and materials and all items of labor and materials
furnished or to be furnished for which payment has not been made and the amounts
to be paid therefor.
Section IV.8 Payments for Labor and Materials. The Borrower
shall pay when due all bills for services or labor performed and materials
supplied in connection with the construction of the Improvements. In the event
any mechanics' lien or other lien or encumbrance shall be filed or attached
against the Property without the prior written consent of the Lender in each
instance, the Borrower covenants and agrees that, within twenty (20) days after
the filing of such lien, the Borrower will promptly discharge the same by
payment or filing bond or otherwise as permitted by law; and if the Borrower
fails to do so, the Lender may, at its option, in addition to, and not in
limitation of, all other rights and remedies of the Lender in the Event of
Default by the Borrower, and without regard to the priority of said mechanics'
lien or other lien or encumbrance, pay the same, and all amounts expended by the
Lender for such purpose shall constitute loans to the Borrower and shall be
secured by the Deed of Trust and the other Loan Documents, and be due and
payable forthwith by the Borrower to the Lender with interest thereon at the
Reimbursement Rate provided for in the Deed of Trust.
Section IV.9 Correction of Construction Defects. Promptly
following any demand by the Lender, the Borrower shall correct or cause the
correction of any structural defects in the Improvements and any material
departures or deviations from the Plans and Specifications not approved in
writing by the Lender.
Section IV.10. Insurance. The Borrower shall, or shall cause
the Corporate Guarantor or the Affiliate, to, provide or cause to be provided to
the Lender, and shall maintain in full force and effect at all times during the
term of the Loan, all of the insurance required under the
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Ground Lease, the Sub-Lease and the Facility Lease, at no cost or expense to the
Lender. In addition, such insurance will meet the following requirements:
(a) Unless otherwise agreed in writing by the Lender, all
Casualty (as defined in the Deed of Trust) insurance, shall be for the greater
of (i) the full insurable value of the Property, or (ii) the full principal
amount of the Loan. The deductible amount under such policy or policies shall
not exceed $25,000. No policy of insurance shall be written such that the
proceeds thereof will produce less than the minimum coverage required by this
reason of co-insurance provisions or otherwise. The term "full insurable value"
means the actual replacement cost of the Property (excluding foundation and
excavation costs and costs of underground flues, pipes, drains and other
uninsurable items).
(b) All liability insurance, shall name the Lender as an
additional insured. In addition, the Borrower will obtain and keep in force such
other and further insurance as may be reasonably required from time to time by
the Lender in order to comply with regular requirements and practices of the
Lender in similar transactions.
Each policy of insurance shall (i) be issued by one or more recognized,
financially sound and responsible insurance companies approved by the Lender, in
its reasonable discretion and which are qualified or authorized by the Laws of
the State to assume the risks covered by such policy, (ii) with respect to the
insurance described under the preceding subsections (a) and (b), have attached
thereto standard non-contributing, non-reporting mortgagee clauses in favor of
and entitling the Lender without contribution to collect any and all proceeds
payable under such insurance, (iii) provide that such policy shall not be
canceled or modified without at least forty five (45) days prior written notice
to the Lender and (iv) provide that any loss otherwise payable thereunder shall
be payable notwithstanding any act or negligence of the Borrower or the
Corporate Guarantor which might, absent such agreement, result in a forfeiture
of all or a part of such insurance payment. The Borrower shall promptly pay all
premiums when due on such insurance and, not less than thirty (30) days prior to
the expiration dates of each such policy, the Borrower will deliver to the
Lender a renewal policy or policies marked "premium paid" or accompanied by
other evidence of payment satisfactory to the Lender. The Borrower will
immediately give the Lender Notice of any cancellation of, or change in, any
insurance policy. The Lender shall not, because of accepting, rejecting,
approving or obtaining insurance, incur any liability for (i) the existence,
nonexistence, form or legal sufficiency thereof, (ii) the solvency of any
insurer, or (iii) the payment of losses. The Lender acknowledges that the
insurance currently being maintained by the Borrower and the Corporate Guarantor
is, as of the date hereof, acceptable to the Lender.
Section IV.11. Flood Insurance. If required by applicable law
or regulation, the Borrower shall provide or cause to be provided to the Lender
a separate policy of flood insurance in the amount of the Loan or the maximum
limit of coverage available with respect to the Property, whichever is the
lesser, from a company or companies satisfactory to the Lender and written in
strict conformity with the Flood Disaster Protection Act of 1973, as amended,
and all applicable regulations adopted pursuant thereto. In the event that flood
insurance is not required by applicable
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law or regulation to be provided in connection with the Loan or is not otherwise
available with respect to the Property, the Borrower shall supply the Lender
with written evidence, in form and substance satisfactory to the Lender, to that
effect. Any such policy shall provide that the policy may not be surrendered,
canceled or substantially modified (including, without limitation, cancellation
for non-payment of premiums) without at least thirty (30) days' prior written
notice to any and all insureds named therein, including the Lender.
Section IV.12. Fees and Expenses; Indemnity. Except as
otherwise limited by this Agreement, the Borrower shall pay all fees, charges,
costs and expenses required to satisfy the conditions of the Loan Documents. The
Borrower shall hold the Lender harmless and indemnify the Lender against all
claims of brokers and "finders" arising by reason of the execution and delivery
of the Loan Documents or the consummation of the transaction contemplated
hereby.
Section IV.13. Copies of Notices. Promptly following the
giving or receipt by the Borrower of any notice given to or received from the
Construction Manager or any subcontractor or materialman with respect to the
Property, if such notice concerns any default or failure to perform by any
party, or relates to any matter requiring the Lender's approval under this
Agreement, the Borrower shall forward to the Lender copies of any such notice.
Section IV.14. BioReliance Loan. At the time of the making of
the BioReliance Loan, the Borrower agrees to join as a grantor (on a
non-recourse basis) in any deed of trust, assignment and security agreement and
related documents, prepared by the Lender to secure repayment of the BioReliance
Loan. All of such documents will be satisfactory to the Borrower in its
reasonable discretion, provided, that the Borrower shall not unreasonably delay
or condition its consent to such documents.
Section IV.15. Facility Lease Payments. The payments under the
Facility Lease shall always be in an amount sufficient to pay all of the
Borrower's Obligations as and when the same are due and payable.
Section IV.16. Books and Records. The Borrower will keep and
maintain full and accurate records and books administered in accordance with
generally accepted accounting principles, consistently applied, showing in
detail the earnings and expenses of the Property and the operation thereof. The
Borrower shall permit the Lender, or any Person authorized by the Lender, to
inspect and examine such records and books (regardless of where maintained) and
all supporting vouchers and data and to make copies and extracts therefrom at
all reasonable times and as often as may be requested by the Lender. In
addition, the Borrower shall furnish the following information at the following
times:
(a) As soon as available, but in no event more than one
hundred twenty five (125) days after the close of each of the Borrower's fiscal
years, copies of all the Borrower's federal tax returns and schedules thereto,
in form and detail satisfactory to the Lender, prepared in
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accordance with generally accepted accounting principles, consistently applied,
and certified by an officer of the Borrower to the Lender.
(b) With reasonable promptness, such additional information,
reports, or statements as the Beneficiary may from time to time reasonably
request.
All such financial items must be in form and detail acceptable to the Lender and
certified as to accuracy by the Borrower.
Section IV.17. Compliance with Leases. Borrower shall comply
with all material terms of the Sub-Lease and the Facility Lease and will not
modify either of these leases without the Lender's prior written consent.
ARTICLE V. NEGATIVE COVENANTS.
Section V.1 Other Liens; Transfers; "Due-on-Sale"; etc. The
Borrower shall not, without the prior written consent of the Lender, create or
permit to be created or remain with respect to the Property or any part thereof
or income therefrom, any mortgage, pledge, lien, encumbrance or charge, or
security interest, or conditional sale or other title retention agreement,
whether prior or subordinate to the lien of the Loan Documents, other than the
Facility Lease, in connection with the Loan Documents or as otherwise provided
or permitted therein, provided, however, after the Completion Date, the Borrower
may assign its interest as lessee in the Sub-Lease and/or its interest as a
lessor in the Facility Lease to a third party acceptable to the Lender in its
reasonable discretion, provided such assignment is made subject to lien of the
Deed of Trust, and further provided that the assignee assumes all of the
Borrower's Obligations under the Loan Documents pursuant to a written agreement
acceptable to the Lender in all material respects. Except as provided above, or
for any grant, conveyance, sale, assignment or transfer in the ordinary course
of the Borrower's business and which is specifically conditioned upon the
release of record of the lien of the Deed of Trust and the other Loan Documents
as to that portion of the Property granted, conveyed, sold, assigned or
transferred, the Borrower shall not, without the prior written consent of the
Lender, make, create, permit or consent to any conveyance, sale, assignment or
transfer of the Property or any part thereof, other than in connection with the
Loan Documents or as otherwise provided or permitted therein.
Section V.2 Impairment of Security. The Borrower shall take no
action which shall impair in any manner the value of the Property or the
validity, priority or security of the Deed of Trust.
Section V.3 Conditional Sales. The Borrower shall not
incorporate in the Improvements any property acquired under a conditional sales
contract, or lease, or as to which the vendor retains title or a security
interest, without the prior written consent of the Lender.
Section V.4 Changes to Plans and Specifications. The Borrower
shall not permit any material changes in the Plans and Specifications,
including, without limitation, any change by
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altering or adding to the work to be performed, orders for extra work, any
change which will result in a material net construction cost increase or a
material net cumulative construction cost decrease, or any change in the design
concept for the Improvements, without the prior written consent of the Lender
and under such reasonable conditions as the Lender may then establish.
Section V.5 Bonds. The Borrower shall not do or permit to be
done anything that would affect the coverage or indemnities provided for
pursuant to the provisions of any performance bond, labor and material payment
bond or any other bond required pursuant to the provisions of the Loan
Documents.
Section V.6 Construction Contract; Construction Management.
The Borrower shall not execute any contract or agreement or become a party to
any arrangement for the construction of the Improvements or for construction
management services with respect to the Property without the prior written
consent of the Lender.
ARTICLE VI. EVENTS OF DEFAULT.
The terms "Event(s) of Default", as used in this Agreement shall mean
the occurrence or happening, from time to time, of any one or more of the
following:
Section VI.1 Defaults Under Other Loan Documents. Any Event of
Default (as defined therein) shall occur under the Note or any of the other Loan
Documents.
Section VI.2 Representations and Warranties. Any material
representation or warranty contained in this Agreement, or in any other
document, certificate or opinion delivered to the Lender in connection with the
Loan, shall prove at any time to be incorrect or misleading in any material
respect either on the date when made or on the date when reaffirmed pursuant to
Article III of this Agreement.
Section VI.3 Compliance with Covenants. The Borrower shall
fail to comply with the terms of any covenant or agreement contained in this
Agreement and such failure shall continue uncured for a period of thirty (30)
days after Notice from the Lender to the Borrower, unless (a) the nature of the
failure is such that it cannot be cured within the thirty (30) day period, (b)
the Borrower institutes corrective action within the thirty (30) day period, and
(c) the Borrower completes the cure within a period of an additional sixty (60)
days.
Section VI.4 Progress of Construction. Except for delays
caused by Force Majeure, construction of the Improvements is not carried on in
good faith and with reasonable dispatch or is abandoned or discontinued for a
period of more than thirty (30) consecutive days.
Section VI.5 Conditions Precedent to Any Advance. Except for
delays caused by Force Majeure, the Borrower shall be unable to satisfy any
condition precedent to its right to receive an advance of the Loan proceeds for
a period in excess of thirty (30) days.
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Section VI.6 Completion of Construction. Except for delays
caused by Force Majeure, the Improvements, in the exclusive judgment of the
Lender, are not or cannot be completed on or before the Completion Date.
Section VI.7 Mechanic's Lien. A lien for the performance of
work or the supply of materials which is perfected against the Land remains
unsatisfied or unbonded for a period of twenty (20) days after the date of
perfection.
Section VI.8 Survey Matters. Any Survey required by the Lender
during the period of construction shows any matters not approved by the Lender
and such matters not approved are not removed within thirty (30) days after
Notice thereof by the Lender to the Borrower, unless (a) the nature of the
failure is such that it cannot be cured within the thirty (30) day period, (b)
the Borrower institutes corrective action within the thirty (30) day period, and
(c) the Borrower completes the cure within a period of an additional sixty (60)
days.
Section VI.9 Construction Manager Default. The Construction
Manager shall have defaulted under the Construction Contract, which default the
Lender, in its sole discretion, shall deem substantial, and the Borrower, after
fifteen (15) days Notice from the Lender, shall fail to exercise any resulting
right or remedy to which it may be entitled thereunder or hire a replacement
construction manager acceptable to the Corporate Guarantor and the Lender.
Section VI.10 BioReliance Loan Default A default shall occur
and remain uncured beyond any applicable cure period under the BioReliance Loan
if and when such loan is made, provided that the Borrower is given notice of any
such default and the same opportunity to cure such default as the Lender
provides to the borrower under the BioReliance Loan.
ARTICLE VII. REMEDIES ON DEFAULT.
Section VII.1 Remedies on Default. The Lender shall have the
right, upon the happening of any Event of Default, to terminate this Agreement
by Notice to the Borrower and, in addition to any rights or remedies available
to it under the Deed of Trust or any of the other Loan Documents, to enter into
possession of the Property and perform any and all work and labor necessary to
complete the construction of the Improvements (whether or not in accordance with
the Plans and Specifications) and to employ watchmen to protect the Property and
the Improvements, provided, however, that prior to taking any action to complete
the Improvements, the Lender will notify the Corporate Guarantor and the
Corporate Guarantor will have six (6) months to complete the Improvements or
cause the Improvements to be completed. All sums expended by the Lender for the
purposes described above shall be deemed to have been advanced to the Borrower
under the Note and shall be secured by the Deed of Trust. Subject to the rights
of the Corporate Guarantor to complete the Improvements, the Borrower hereby
empowers the Lender and its agents as follows:
(a) To use any funds of the Borrower including any balance
which may be held in escrow and any funds which may remain unadvanced hereunder
for the purpose of completing the
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construction of the Improvements, whether or not in the manner called for in the
Plans and Specifications;
(b) To make such additions and changes and corrections to the
Plans and Specifications which shall be necessary or desirable in the judgment
of the Lender to complete the construction of the Improvements;
(c) To employ such contractors, subcontractors, agents,
architects and inspectors as shall be necessary or desirable for said purpose;
(d) To pay, settle or compromise all existing bills and claims
which are or may be liens against the Property, or may be necessary or desirable
for the completion of the work or the clearance of title to the Property;
(e) To execute all applications and certificates which may be
required in the name of the Borrower; and
(f) To do any and every act with respect to the construction
of the Improvements which the Borrower may do in its own behalf.
Section VII.2 No Conditions Precedent to Exercise of Remedies.
The Borrower shall not be relieved of any obligation by reason of the failure of
the Lender to comply with any request of the Borrower or of any other person to
take action to foreclose on the Property under the Deed of Trust or otherwise to
enforce any provision of the Loan Documents, or by reason of the release,
regardless of consideration, of all or any part of the Property, or by reason of
any agreement or stipulation between any subsequent owner of the Property and
the Lender extending the time of payment or modifying the terms of the Loan
Documents without first having obtained the consent of the Borrower; and in the
latter event, the Borrower shall continue to be liable to make payments
according to the terms of any such extension or modification agreement, unless
expressly released and discharged in writing by the Lender.
Section VII.3 Remedies Cumulative and Concurrent. No remedy
herein conferred upon or reserved to the Lender is intended to be exclusive of
any other remedies provided for in the Loan Documents, and each and every such
remedy shall be cumulative, and shall be in addition to every other remedy given
hereunder, or under the Loan Documents, or now or hereafter existing at law or
in equity or by statute. Every right, power and remedy given by the Loan
Documents to the Lender shall be concurrent and may be pursued separately,
successively or together against the Borrower or the Property or any part
thereof, and every right, power and remedy given by the Loan Documents may be
exercised from time to time as often as may be deemed expedient by the Lender.
Section VII.4 Strict Performance. No delay or omission of the
Lender to exercise any right, power or remedy accruing upon the happening of an
Event of Default shall impair any such right, power or remedy or shall be
construed to be a waiver of any such Event of Default or any
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acquiescence therein. No delay or omission on the part of the Lender to exercise
any option for acceleration of the maturity of the Obligations, or for
foreclosure of the Deed of Trust following any Event of Default as aforesaid, or
any other option granted to the Lender hereunder in any one or more instances,
or the acceptance by the Lender of any partial payment on account of the
Obligations shall constitute a waiver of any such Event of Default and each such
option shall remain continuously in full force and effect.
ARTICLE VIII. MISCELLANEOUS.
Section VIII.1 No Warranty by Lender. By accepting or
approving anything required to be observed, performed or fulfilled by the
Borrower or to be given to the Lender pursuant to this Agreement, including,
without limitation, any certificate, balance sheet, statement of profit and loss
or other financial statement, Survey, receipt, appraisal or insurance policy,
the Lender shall not be deemed to have warranted or represented the sufficiency,
legality, effectiveness or legal effect of the same, or of any term, provision
or condition thereof and any such acceptance or approval thereof shall not be or
constitute any warranty or representation with respect thereto by the Lender.
Section VIII.2 Liability of Lender. The Lender shall not be
liable for any act or omission by it pursuant to the provisions of this
Agreement in the absence of fraud or gross negligence. The Lender shall incur no
liability to the Borrower or any other party in connection with the acts or
omissions of the Lender in reliance upon any certificate or other paper believed
by the Lender to be genuine or with respect to any other thing which the Lender
may do or refrain from doing, unless such act or omission amounts to fraud or
gross negligence. In connection with the performance of its duties pursuant to
this Agreement, the Lender may consult with counsel of its own selection, and
anything which the Lender may do or refrain from doing, in good faith, in
reliance upon the opinion of such counsel shall be full justification and
protection to the Lender.
Section VIII.3 No Partnership. Nothing contained in this
Agreement shall be construed in a manner to create any relationship between the
Borrower and the Lender other than the relationship of borrower and lender and
the Borrower and the Lender shall not be considered partners or co-venturers for
any purpose on account of this Agreement.
Section VIII.4 Severability. In the event any one or more of
the provisions of this Agreement shall for any reason be held to be invalid,
illegal or unenforceable, in whole or in part or in any other respect, or in the
event any one or more of the provisions of any of the Loan Documents operates or
would prospectively operate to invalidate this Agreement, then and in either of
those events, at the option of the Lender, such provision or provisions only
shall be held for naught and shall not affect any other provision of the Note or
of any of the other Loan Documents or the validity of the remaining Obligations
and the remaining provisions of the Note and the Loan Documents shall remain
operative and in full force and effect and shall in no way be affected,
prejudiced or disturbed thereby.
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Section VIII.5 Successors and Assigns. Each and every one of
the covenants, terms, provisions and conditions of this Agreement and the Loan
Documents shall apply to, bind and inure to the benefit of the Borrower, its
successors and those assigns of the Borrower consented to in writing by the
Lender, and shall apply to, bind and inure to the benefit of the Lender and the
endorsees, transferees, successors and assigns of the Lender, and all persons
claiming under or through any of them.
Section VIII.6 Modification; Waiver. None of the terms or
provisions of this Agreement may be changed, waived, modified, discharged or
terminated except by instrument in writing executed by the party or parties
against whom enforcement of the change, waiver, modification, discharge or
termination is asserted. None of the terms or provisions of this Agreement shall
be deemed to have been abrogated or waived by reason of any failure or failures
to enforce the same.
Section VIII.7 Third Parties; Benefit. All conditions to the
obligation of the Lender to make advances hereunder are imposed solely and
exclusively for the benefit of the Lender and its assigns and no other persons
shall have standing to require satisfaction of such conditions in accordance
with their terms or be entitled to assume that the 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 the beneficiary of
such conditions, any or all of which may be freely waived in whole or in part by
the Lender at any time in the sole and absolute exercise of its discretion. The
terms and provisions of this Agreement are for the benefit of the parties hereto
and the Corporate Guarantor, and, except as herein specifically provided, no
other person shall have any right or cause of action on account thereof.
Section VIII.8 Conditions; Verification. Any condition of this
Agreement which requires the submission of evidence of the existence or
non-existence of a specified fact or facts implies as a condition to the
existence or non-existence, as the case may be, of such fact or facts that the
Lender shall, at all times, be free independently to establish to its
satisfaction and in its absolute discretion such existence or non-existence.
Section VIII.9 Captions and Headings. The captions and
headings contained in this Agreement are included herein for convenience of
reference only and shall not be considered a part hereof and are not in any way
intended to limit or enlarge the terms hereof.
Section VIII.10 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be considered an original for
all purposes; provided, however, that all such counterparts shall together
constitute one and the same instrument.
Section VIII.11 Notices. All Notices shall be deemed to have
been received when delivered by hand, when delivered by an overnight courier, or
three (3) Banking Days after being deposited in the mail in the manner provided
for the giving of Notice.
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Section VIII.12 Signs; Publicity. At the Lender's request, but
at the expense of the Borrower, the Lender may place a sign at a location on the
Property, which sign shall recite, among other things, that the Lender is
financing the construction of the Improvements, subject to such requirements as
may be imposed by the Borrower, the Corporate Guarantor and the County. The
Borrower expressly authorizes the Lender to prepare and to furnish to the news
media for publication from time to time news releases with respect to the
Property, specifically to include but not limited to, releases detailing the
Lender's involvement with the financing of the Property.
Section VIII.13 Applicable Law. This Agreement shall be
governed by and construed, interpreted and enforced in accordance with the laws
of the State of Maryland.
Section VIII.14 Time of Essence. Time shall be of the essence
for each and every provision of this Agreement of which time is an element.
[COUNTERPART SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Agreement to be executed under seal as of the day and year first above written.
WITNESS: BPG INDUSTRIAL PARTNERS II, LLC
______________________________ By:___________________________(SEAL)
Name:
Title:
WITNESS: NATIONSBANK, N.A.
______________________________ By:___________________________(SEAL)
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
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The Corporate Guarantor joins in the execution of this Loan Agreement for the
purposes of consenting to its terms and provisions.
BIORELIANCE CORPORATION
BY: ________________________
Name:
Title:
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