Construction Loan Agreement

CONSTRUCTION LOAN AGREEMENT AGREEMENT made this _____ day of _____________, 20__, between ___________ _____________________________, ________________________________________ with its principal place of business at _________________________________________ (“Borrower”) and ________________________________________ with its principal place of business at _________________________________________ (“Lender”). Lender has agreed to make a construction loan (“Loan”) to Borrower in the amount of _____________________________________________________ Dollars ($_________) to be evidenced by Borrower’s promissory note in such amount (“Note”) and secured by a mortgage (“Mortgage”) from Borrower to Lender of the premises situated at _____________ ___________________________ (“Premises”) more particularly described in the Mortgage. The Note, the Mortgage, this Agreement and all other instruments and agreements, whether now existing or hereafter arising, executed in connection with the Loan or any extension or modification thereof or submitted to Lender by Borrower or any guarantor of Borrower’s obligations are collectively referred to herein as the “Loan Documents.” In consideration of granting the Loan, Borrower and Lender hereby agree as follows: 1. Construction Borrower agrees: (a) to have constructed on the Premises in accordance with plans and specifications listed on Exhibit A hereto, and any modifications thereof approved by Lender in writing (“Plans”), certain buildings and other improvements (such buildings and improvements together with the Premises being called the “Project”) and not to amend or modify the Plans, whether by change orders or otherwise, without the prior written consent of the Lender; (b) to construct the Project using first-class workmanship and materials of the best quality called for by the Plans, in accordance with all applicable governmental requirements (including, without limitation, permits), all restrictions and agreements affecting the Project, and all requirements of the Board of Fire Underwriters; to use only materials and equipment to which Borrower has good unencumbered title; and to cause to be paid punctually all sums becoming due for labor, materials, fixtures, or equipment used or purchased in connection with such construction; (c) to commence construction of the Project forthwith, diligently proceed with construction, and complete the Project on or before _____________, 20__ (“Completion Date”); 2 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am (d) to keep the Project and all materials, fixtures or equipment incorporated therein or to be used in connection therewith free from any attachment, lien, lis pendens, or encumbrance of any kind; (e) to comply with the terms of all contracts for design or construction of the Project and any surety bonds issued in connection therewith; not to enter into any new contract or materially amend, modify, or cancel any existing contract or bond without the prior written consent of Lender; and to give Lender immediate notice of the failure of any party to comply with the terms of any such contract or bonds; (f) to use all advances of the Loan made by Lender only for items for which requisitions are permitted under this Agreement or for reimbursement of expenditures made for items for which requisitions are so permitted; and (g) to give Lender prompt written notice of (1) any fire or other casualty, or strike, lockout, or other interruption of the construction of the Project which may interfere with the ability of the Borrower to complete the Project by the Completion Date and (2) any action, suit, or proceeding instituted by or against Borrower, or if applicable, any general partner of Borrower or any guarantor or endorser of any of Borrower’s obligations hereunder or under the Loan Documents (each, an “Obligor”), or with respect to the Project, in any court or pending before any other governmental authority or any mediator or arbitrator which might result in a judgment or judgments in excess of $25,000 (in the aggregate) or which could otherwise adversely affect Borrower, any Obligor, the Project, or the Borrower’s or any Obligor’s ability to perform its obligations hereunder or under the other Loan Documents. 2. Submissions to Lender Borrower agrees to submit to Lender at the commencement of construction for Lender’s approval: (a) a budget showing estimates of all costs to be incurred by Borrower in connection with the completion of the Project, including, without limitation, costs to be incurred by Borrower in connection with the Loan; (b) a construction progress schedule in form satisfactory to Lender; and (c) copies of all construction contracts and subcontracts relating to construction of the Project existing as of the commencement of construction of the Project. Thereafter, on demand of Lender, Borrower shall submit progress reports showing the then present status of construction. If the construction progress reports reflect a substantial deviation from the budget or construction progress schedule initially submitted to Lender, Borrower shall submit to Lender with Borrower’s construction report detailed explanations 3 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am thereof and proposed corrective steps. Borrower agrees upon Lender’s request to cause any contractor or subcontractor (“Contractor”) or architect (“Architect”) furnishing labor or services in connection with the Project to furnish such progress and budget statements and such certificates of completion as Lender may from time to time require, and to cause any Contractor to deliver to Lender a list of all persons or entities with whom it has contracted or intends to contract for the construction of the Project or for the furnishing of labor or materials in connection therewith. 3. Consultants and Inspections Lender may require that from time to time the construction of the Project be inspected and evaluated at the Borrower’s expense by architectural, engineering, or construction consultants satisfactory to Lender. Lender and such consultants shall have unrestricted access to the Project and to the Plans, working drawings, construction contracts and subcontracts, and Borrower’s books and records (so far as they relate to the Project), for the purpose of determining compliance with this Agreement. The function of Lender’s consultants shall be solely to assist Lender. Lender has no obligation in connection with the Project, except to advance proceeds of the Loan as hereinafter provided. Lender, Lender’s consultants, and their agents and/or employees shall not under any circumstances be responsible (a) for any cost, claim, loss, liability, damage, or expense which may arise as a result of negligence, or defective or inappropriate design, materials, workmanship, or supervision, or (b) for any other cost, claim, loss, liability, damage, or expense arising in connection with the Project; and Borrower agrees to hold Lender, Lender’s consultants, and their agents and/or employees harmless from, and to indemnify Lender, Lender’s consultants, and their agents and/or employees against, any such cost, claims, loss, liability, damage, or expense (including, without limitation, attorneys’ fees and disbursements incurred in connection with defending any such claim). 4. Construction Advances Lender agrees, subject to the provisions of this Agreement, to advance the proceeds of the Loan as construction progresses, in the amount of 90% of the value of labor and materials then incorporated into the Project and (at Lender’s option) suitably stored at the site, less previous advances, upon Borrower’s requisition. Advances hereunder shall be made solely for the payment of expenses reasonably incurred in the construction of the Project and such other expenses related to the Project as Lender has approved. Each requisition shall be in the form set forth in Exhibit B or such other form as Lender in its sole discretion may approve, and shall be executed by the parties indicated thereon. All advances shall be payable to Borrower or, at Lender’s option, to Borrower and/or one or more parties furnishing labor, services or materials in connection with the Project. Lender shall have a reasonable time after the receipt of each requisition to inspect the Project or cause the Project to be inspected and reviewed at Borrower’s expense by architectural, engineering or construction consultants in accordance with Section 3 hereof. Lender shall not be required to advance any funds unless it is satisfied that construction has been done in accordance with this Agreement. Lender shall make the final advance at such time as (a) the Project is completed to the satisfaction of Lender, (b) a final certificate of 4 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am occupancy has been issued by the appropriate governmental authority, (c) the Project is free of liens, and (d) any applicable statutory lien periods have expired. Lender may deduct from any advance any amount necessary for the payment of any fees and expenses of, or relating to, the Project or the Loan or may apply such amounts in making such payments (and all sums so applied shall be deemed advances under this Agreement). In the event that Lender determines at any time that the undisbursed balance of the Loan proceeds is insufficient to pay in full for completion of construction of the Project and all other costs associated therewith, Lender may withhold any further disbursement of the loan proceeds and require that Borrower pay from Borrower’s own funds all sums necessary to bring construction of the Project to a point where, in the opinion of the Lender, the undisbursed balance of the loan proceeds is sufficient to complete the Project (the total of such sums shall be the “Deficiency”). In such event, Borrower shall, at Lender’s election, either (a) deposit with Lender an amount equal to Lender’s estimate of the Deficiency, which Lender may apply, or allow Borrower to apply, to pay for costs associated with the Project, or (b) pay such costs out of its own funds, furnishing to Lender such evidence of payment therefor as Lender shall require. 5. Conditions to Advances Lender shall be obligated to make advances hereunder only if: (a) Borrower is not in default under this Agreement (whether or not such default has ripened into an Event of Default as that term is defined in Section 10); (b) there are no notices of contract, liens, or encumbrances on any portion of the Project or the materials to be incorporated therein, and, if requested by Lender, Borrower delivers to Lender a title insurance endorsement or other evidence of title satisfactory to Lender to the effect that the advance to be made by Lender is secured by the Mortgage and shares the same priority of title as the loan proceeds previously advanced by Lender; (c) there are no violations of any agreements, restrictions, other encumbrances, building or zoning or environmental laws or any other laws, regulations, permits, or other requirements (of whatever sort) of any governmental authority with respect to the Project; (d) there are no legal actions or other legal proceedings pending or threatened which could adversely affect Borrower, any Obligor, the Project, or the Borrower’s or any Obligor’s ability to perform its obligations hereunder or under the other Loan Documents; (e) there is no damage to the Project by fire or other casualty which in Lender’s opinion will delay completion of the Project beyond the Completion Date; 5 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am (f) the Project is being constructed in strict accordance with the Plans; (g) the Project is being constructed under the supervision and control of an architect and by a general contractor and/or major subcontractors all of whom have been approved by Lender, and all contracts with such parties are in full force and effect and free from default; and (h) all representations and warranties of Borrower made prior to such advance continue to be true and correct in all material respects, except to the extent rendered inaccurate by the passage of time. The determination whether the foregoing conditions have been satisfied shall be made by Lender in its sole discretion. Without waiving any of Lender’s rights under this Agreement, Lender shall always have the right to advance proceeds of the Loan without satisfaction of each and every condition for such advance. Borrower agrees to accept any advance which Lender may elect to make. Before making any advance, Lender may investigate the foregoing matters and shall be entitled to rely upon its counsel’s or consultant’s opinion relative thereto. After the completion of foundations, Borrower shall, at Borrower’s expense, furnish Lender with a survey certified by a professional engineer showing the location of all foundations for the Project and evidencing compliance with the provisions of subparagraph (c) above and containing such certifications as Lender may reasonably require. Lender may withhold all advances after the completion of foundations until such survey has been furnished to Lender. From time to time thereafter during the term of the Loan, upon request by Lender, Borrower shall deliver to Lender an updated survey and certificate continued down to the date of such request. 6. Right of Lender to Make Payments Lender is authorized to make any payments which in Lender’s opinion are necessary to: (a) discharge any liens or encumbrances which have taken or could take priority over the Mortgage; (b) pay any sums due or claimed to be due for labor, materials, or equipment furnished in connection with the Project; (c) pay any other sums which Lender determines it is expedient to pay in order to secure (1) the completion of the Project, (2) payment for labor, materials, and equipment furnished in connection with the Project, and (3) the performance of all obligations of Borrower hereunder; and/or (d) pay all payments of unpaid interest and other payments which are payable under the Loan Documents (whether to Lender or others). 6 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am The decision of Lender upon any question of fact or expediency shall conclusively bind Borrower. Lender may charge any sums so paid as an advance of the Loan proceeds to Borrower to be secured by the Loan Documents, notwithstanding that the aggregate indebtedness of Borrower to Lender may exceed the aggregate amount which Lender is obligated to advance hereunder. 7. Insurance Until completion of construction of the Project, in additional to such other insurance as Lender may require under the Mortgage, Borrower shall cause to be maintained in full force and effect a policy or policies of Builder’s Risk Completed Value insurance with fire, earthquake, and extended coverage (including collapse, cost of demolition, removal of debris, and increased cost of construction), public liability insurance, and workmen’s compensation insurance, all with such companies, in such form, and in such amounts as the Lender shall from time to time require, but in any event in amounts necessary to avoid the effects of co-insurance. All insurance policies shall be written for the benefit of Borrower and Lender as their respective interests may appear, shall be payable in the event of loss to Lender, and shall be non-cancellable with respect to Lender except upon at least thirty (30) days’ prior written notice. Borrower shall deliver to Lender the original policies of such insurance or certificates thereof in form and substance satisfactory to Lender. 8. Permanent Loan Commitment Borrower has obtained and accepted a commitment from ________________________ ________________ (“Permanent Lender”) dated _____________, 20__ (the “Permanent Commitment”) to provide long term financing for the Project. Borrower warrants and represents that the Permanent Commitment is in full force and effect and that Borrower is in compliance with all of the terms, conditions, and covenants of the Permanent Commitment with which Borrower is currently required to comply. Borrower agrees to comply with all terms and conditions of the Permanent Commitment and not to cancel, modify, or amend the Permanent Commitment without the prior written consent of Lender, and to furnish Lender promptly with copies of all correspondence of Borrower and Permanent Lender relating to the Project. 9. Borrower’s Representations and Warranties 9.1 To induce Lender to make the Loan and enter into this Agreement, Borrower hereby represents and warrants that: (a) this Agreement and the other Loan Documents have been duly authorized, executed, and delivered by and on behalf of Borrower; and this Agreement and the other Loan Documents to which Borrower is a party constitute the valid and binding obligations of Borrower, enforceable in accordance with their respective terms, subject to laws relating to bankruptcy and enforcement of creditors’ rights generally; 7 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am (b) as applicable, the Borrower and each Obligor is duly formed or organized, validly existing, in good standing, and qualified to do business in the state where the Project is located, with all power, authority, and legal right to engage in the transactions contemplated hereunder and under the other Loan Documents; (c) the execution, delivery, and performance of this Loan Agreement and the other Loan Documents and the carrying out of the transactions contemplated herein and therein will not (1) conflict with or result in a breach of or default under the terms of any agreement or covenant, any law or regulation, any order or requirement (of whatever sort) of any court or other governmental authority, or any instrument to which Borrower or any Obligor is a party or by which either of them may be bound or affected, (2) result in the imposition of any lien or charge upon any asset of Borrower or any Obligor, or (3) result in the acceleration of any obligation under any instrument or agreement binding upon Borrower or any Obligor; (d) there are no actions, suits, or proceedings (including, without limitation, eminent domain proceedings) pending, or to the knowledge of Borrower threatened, before any court or other governmental authority or any mediator or arbitrator which could adversely affect Borrower, any Obligor, the Project, or the Borrower’s or any Obligor’s ability to perform its obligations hereunder or under the other Loan Documents, and to the Borrower’s knowledge, neither it, nor any Obligor, nor the Project is in default with respect to or in violation of any order, writ, injunction, decree, or demand of any court or other governmental authority; (e) Borrower has good and marketable record title to the Premises, free and clear of all liens, restrictions, and encumbrances, except for those liens, restrictions, and encumbrances set forth in the Mortgage; (f) all statements, financial or otherwise, submitted by Borrower and all Obligors to Lender in connection with the Loan are true, complete, and correct in all respects; each financial statement has been prepared in accordance with generally accepted accounting procedure and fairly presents the financial condition of the subject thereof, and there has been since the date of such financial statement no material adverse change in the financial condition of the subject thereof; and neither Borrower nor any Obligor has made any additional borrowing since the date of the most recent financial statement submitted to Lender with respect to it except the borrowing contemplated hereunder; (g) there exists no default hereunder or under the other Loan Documents and no event has occurred which with the giving of notice or the passage of time, or both, could ripen into such a default; (h) there are no assessments for public improvements currently levied or assessed with respect to the Premises except as set forth to the Mortgage, and Borrower 8 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am has not received notice of any such assessment which is pending and which could become a lien upon the Premises; (i) Borrower has not generated, stored, or disposed of any oil, hazardous waste, or hazardous material as defined in the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6921 et seq., applicable state laws, or regulations adopted pursuant to either of the foregoing, excluding customary amounts of materials commonly and lawfully used in residential and office buildings; Borrower has no knowledge of the generation, storage, or disposal of any such materials on the Premises by anyone else; and no such materials are presently located on the Premises; (j) the Plans have been reviewed by and are satisfactory to Borrower, all Obligors, the Contractor, the Architect, the Permanent Lender (if any), all tenants under leases granting such approval rights to tenants, all governmental authorities whose approval is authorized or required under applicable law, and all beneficiaries of effective restrictive covenants requiring such approval; (k) all buildings and improvements, if any, currently located on the Premises have been built, and all construction of the Project which has already been performed (if any) has been performed, (1) substantially in accordance with the Plans approved by all persons identified in subparagraph (j) above, (2) in conformity with all applicable restrictive covenants, laws, and requirements (of whatever sort) of governmental authorities affecting the Project, and (3) within the perimeter boundaries of the Premises and within applicable building or setback lines; (l) all necessary licenses, permits, and approvals with respect to the construction of the Project have been obtained and are in full force and effect, and all necessary licenses, permits, and approvals necessary for the occupancy of the Project or any portion thereof for its intended uses have been obtained or shall be obtained prior to such occupancy and in any event not later than the Completion Date; and the current and intended uses of the Project comply with all applicable restrictive covenants, laws, and requirements (of whatever sort) of governmental authorities affecting the Project, including, without limitation, all applicable zoning, environmental, and landmark laws, ordinances, or regulations; (m) the Project is now and shall (on the Completion Date) be free from structural defects, and all equipment and systems incorporated in the Premises (including, without limitation, plumbing, heating, air conditioning, electrical, communications, and sprinkler systems) are now or shall (on the Completion Date) be in good working order and repair; (n) all utility services necessary for the construction of the Project and the operation of the Project for its intended uses are available in sufficient quantities at the boundaries of the Premises, including water supply, storm and sanitary sewer, gas, 9 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am electric power, and telephone facilities, and all connections and installations have been or shall be made in compliance with all applicable laws and other requirements (of whatever sort) of governmental authorities or utility companies and pursuant to properly issued permits therefor, and are now or shall (on the Completion Date) be in good working order and repair and fully paid for; (o) all roads necessary for the full utilization of the Project for its intended uses have either been completed or the necessary rights of way therefor have been acquired by the appropriate governmental authority or dedicated to public use and accepted by the appropriate governmental authority, and all necessary steps have been taken by Borrower and the appropriate governmental authorities to assure the complete construction and installation thereof not later than the Completion Date or such earlier date as may be required under any law or by any governmental authority, by the Permanent Lender, or by any tenant pursuant to any lease of any portion of the Project; (p) all work, labor, services, and materials furnished in connection with the Project which could give rise to any mechanic’s, materialmen’s, or other lien on the Premises or the property encumbered by the Mortgage prior to the lien of the Mortgage have been fully paid for so that no such lien will arise; and (q) there are no leases or tenancy arrangements in effect with respect to any portion of the Project except as already disclosed in writing to the Lender; no tenant under any lease of any portion of the Project is in default under such lease nor does there exist any state of facts which with the giving of notice or the passage of time or both could give rise to any default thereunder, except as already disclosed in writing to the Lender; and Borrower has paid or will pay when due all leasing commissions arising from the rental of any portion of the Project. 9.2 Each requisition presented to Lender, and the receipt of the funds requested thereby, shall constitute an affirmation that the representations and warranties contained in the foregoing Section 9.1 remain true and correct as of the respective dates of such requisition and such receipt. 10. Default Any of the following shall constitute an Event of Default: (a) discovery by Lender that any statement, representation or warranty by Borrower or any Obligor to Lender in this Agreement, in any of the other Loan Documents, or in any other statement, instrument, or certificate given in connection with the Loan is false or misleading in any material respect; (b) Borrower fails to pay when due any installment of principal or interest on the Note or any other amount required pursuant to the terms of the Note, the Mortgage, this Agreement, or any of the other Loan Documents, and such failure continues beyond 10 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am the expiration of the applicable grace period permitted under such Loan Document, if any; (c) Borrower fails to observe or perform any covenant, warranty, or agreement to be performed by Borrower (1) under this Agreement and such failure continues for a period of fifteen (15) days after Lender gives written notice of such failure to Borrower, or (2) under any other Loan Document and such failure continues beyond the expiration of the applicable grace period permitted under such Loan Document, if any; (d) Borrower fails to maintain the insurance required to be maintained under Section 7 hereof; (e) there shall occur, in the reasonable judgment of Lender, a material adverse change in the financial condition of Borrower or any Obligor; (f) any portion of the Project shall be taken by eminent domain or otherwise by operation of law; (g) Borrower or any Obligor is involved in any financial difficulty as evidenced by: (i) creditors, or (ii) an assignment, composition or similar device for the benefit of inability to pay debts when due, or (iii) an attachment or receivership of assets not dissolved or bonded to Lender’s satisfaction within thirty (30) days, or (iv) the filing by Borrower or any Obligor of a petition under any chapter of the Federal Bankruptcy Code or the institution of any other proceeding under any law relating to bankruptcy, bankruptcy reorganization, insolvency or relief of debtors, or (v) the filing against Borrower or any Obligor of an involuntary petition under any chapter of the Federal Bankruptcy Code or the institution of any other proceeding under any law relating to bankruptcy, bankruptcy reorganization, insolvency or relief of debtors, where such petition or proceeding is not dismissed within thirty (30) days from the date on which it is filed or instituted, or (vi) the death or dissolution of Borrower or any Obligor; (h) the Project has not been completed by the Completion Date, construction of the Project substantially ceases for fifteen (15) consecutive days, or, as a result of a deviation from the construction progress schedule initially submitted to Lender or delays 11 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am in construction, however caused, the Project cannot, in Lender’s opinion, be completed on or before the Completion Date; (i) any event occurs which may relieve Permanent Lender of its obligations under the Permanent Commitment or any agreement whereby Lender agrees to transfer the Loan Documents to the Permanent Lender under a given set of circumstances; (j) Borrower fails to comply with the terms of any bond for performance of the work or payment of the costs thereof or liens therefor upon which terms the effectiveness of such bond is conditioned; (k) Lender is for a period of 30 days entitled to withhold advances pursuant to one or more of subparagraphs (b) through (h) of Section 5 hereof; (l) any contractor or subcontractor of any substantial portion of the Project fails to continue its work and the Borrower fails to provide within fifteen (15) days a replacement therefor satisfactory to Lender; (m) Borrower shall fail to obtain, fail or refuse to observe, or fail or refuse to keep in full force and effect any building permit or other permit or approval of any governmental authority required in connection with the Project; or (n) if construction of the Project or any of the materials, fixtures, or articles used in the construction of the Project or to be used in the operation thereof are not in accordance with the Plans as approved by Lender. 11. Rights on Default Upon any Event of Default, Lender may: (a) by notice in writing to Borrower declare the Note to be immediately due and payable without presentation, demand, protest, or other notice of dishonor of any kind, all of which are hereby expressly waived; and/or (b) exercise any other remedies provided by any Loan Document or at law or in equity; and/or (c) at its discretion, take possession of the Premises and proceed to complete the construction of the Project, in which event all construction materials and equipment intended for use in connection with the Project shall become the property of Lender, without payment therefor, to be used in the completion of the Project. Lender may charge all money expended therefor as an advance of the Loan to Borrower and use any funds of the Borrower, including funds held in escrow by Lender, in the management, operation, or completion of the Project, or against Borrower’s indebtedness. If Lender elects to complete the Project, Lender shall be entitled to do all things as it, in its sole 12 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am discretion, shall deem advisable, including, without limitation, the right to make additions and changes in the Plans, to employ or terminate Contractors or other agents, to pay, settle, or compromise all existing bills and claims, to operate and manage the Project on such terms and conditions as Lender shall deem appropriate, and to abandon the Project at any time prior to completion and refuse to make further payments for the account of Borrower. Borrower hereby appoints Lender its irrevocable attorney-in-fact, coupled with an interest, with full power of substitution, to act in its name in connection with the foregoing. Borrower agrees to pay to Lender on demand all sums spent by Lender in managing, operating, and/or completing the Project, even if the same shall be more than the amount to be advanced hereunder or if the Project is not completed, and to pay on demand to Lender, for Lender’s services in connection with such completion, an amount equal to fifteen percent (15%) of the cost of completion. Any payment made or expense incurred by Lender, or any sum to which the Lender becomes entitled in connection with the completion of the Project, if not paid by Borrower to Lender, shall be added to the indebtedness of Borrower to Lender, shall earn interest at the rate set forth in the Note, shall be payable on demand, and shall be secured by the Mortgage, regardless of whether the total of such sums and such indebtedness is in excess of the amount of the Loan. 12. Expenses Borrower shall reimburse Lender for any payment made or cost incurred (including attorneys’ fees and disbursements) in connection with the Loan and the preparation and enforcement of the Loan Documents; Borrower shall indemnify Lender against any cost, claim, loss, liability, damage, or expense in connection therewith. 13. Additional Security All Loan Documents shall secure the performance of all obligations of Borrower under this Agreement. Borrower hereby assigns to Lender as additional security for the Borrower’s obligations under the Loan Documents all of Borrower’s interest in all present and future contracts for design, supervision, and/or construction of the Project. Borrower agrees to execute all instruments required by Lender to perfect and maintain such assignments, and to obtain from all other parties to such contracts written assents and acknowledgments to such assignments satisfactory to Lender. Such contracts are assigned to Lender solely as security, and Lender shall have no duty, liability, or obligation whatever under such contracts, unless Lender elects otherwise in writing. 14. Assignment of Agreement This Agreement shall not be assigned or transferred by Borrower equitably or otherwise without the written consent of Lender. 13 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am 15. Waivers No course of dealing by Lender, no delay in accelerating the maturity of the Note following any default, and no other action taken with respect to any default (or failure to take any such action) shall affect Lender’s rights later to take such action with respect thereto, and no waiver as to any one default shall affect Lender’s rights as to any other default. 16. Financial Statements Borrower shall maintain full and complete books of account and other records with respect to the construction and operation of the Project and shall deliver to Lender a profit and loss statement with respect to the Project and financial statements of Borrower and any Obligor within ninety (90) days after the end of the Borrower’s fiscal year. Such statements shall be in form and substance satisfactory to Lender and at Lender’s option, shall be certified by one or more independent certified public accountants satisfactory to Lender. At the time Borrower delivers such financial statements, Borrower shall also deliver a current rent roll of the Premises containing an accurate summary of each lease covering any portion of the Premises. In addition, Borrower shall deliver to Lender semi-annual unaudited financial statements of Borrower and each Obligor within thirty (30) days after the expiration of Borrower’s semiannual fiscal period, certified as to correctness by Borrower or (in the case of each Obligor) by such Obligor, or if Borrower or such Obligor is a corporation, by a principal officer of Borrower or such Obligor. All financial statements shall include balance sheets and profit and loss statements prepared in accordance with generally accepted principles of accounting consistently applied. At any time and from time to time, Borrower shall deliver to Lender such other financial data as Lender shall request, and Lender shall have the right, at reasonable times, to audit the Borrower’s records and books of account. 17. Notices Any notice required or permitted to be delivered hereunder shall be in writing and shall be deemed to be delivered on the earlier of (i) the date received, or (ii) the date of delivery, refusal, or non-delivery indicated on the return receipt, if deposited in a United States Postal Service Depository, postage prepaid, sent registered or certified mail, return receipt requested, addressed to the party to receive the same at the address of such party set forth at the beginning of this Agreement, or at such other address as may be designated in a notice delivered or mailed as herein provided. 18. Commitment Fee In addition to all of the other payments contemplated or required under this Agreement and the other Loan Documents, in consideration of the execution of this Agreement on the part of Lender and the commitment of Lender to make the Loan subject to the term and conditions of 14 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am this Agreement and the other Loan Documents, Borrower shall pay to Lender a nonrefundable commitment fee with respect to the Loan equal to $________, upon the execution of this Agreement. 19. Payment and Performance Bonds At Lender’s request, Borrower shall require the general contractor and/or all major subcontractors to obtain and maintain during the time of construction of the Project payment and performance bonds in an amount satisfactory to Lender. All payment and performance bonds shall name Lender as a dual obligee and be in form and content and issued by bonding companies doing business in The Commonwealth of Massachusetts satisfactory to Lender. 20. Further Assurances Borrower agrees that at any time and from time to time after the execution and delivery of this Agreement, it shall, upon the request of Lender, execute and deliver such further documents and do such further acts and things as Lender may reasonably request in order to more fully carry out the purposes of this Agreement. 21. Estoppel Certificates With five (5) days after any request from Lender, Borrower will furnish a duly acknowledged estoppel certificate setting forth the total amount which has then been advanced under the Note, the amount then due on the Loan, and such other matters as Lender may reasonably require. 22. No Partnership or Joint Venture Neither anything contained herein nor the acts of the parties hereto shall be construed to create a partnership or joint venture between Borrower and Lender. Borrower is not the agent or representative of Lender, and nothing in this Agreement shall be construed to make Lender liable to anyone for goods delivered or services performed with respect to the Project or for debts or claims accruing against Borrower. The Lender’s obligations hereunder or under the Loan Documents are not for the benefit of or enforceable by any other party. 23. Signs and Publicity Lender shall have the right during the term of the Loan to place such signs on the Premises as it shall deem desirable to indicate that Lender is the source of financing of the Project. The cost of such signs shall be borne by the Borrower. Lender may also release such other publicity concerning the Loan and the Project as Lender shall deem desirable. 24. Indemnification and Brokerage Commissions 15 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am Any brokerage commissions or finders’ fees in connection with the Loan or the Project shall be paid by Borrower. Borrower agrees to forever indemnify Lender against and hold Lender harmless from any and all claims of any broker or finder arising out of the Loan or the transactions contemplated hereby and all expenses (including, without limitation, attorneys’ fees and disbursements) incurred in connection with defending such claims. 25. Stamp Tax Should any stamp or other tax now or hereafter become payable with respect to this Agreement, the Note, the Mortgage, or any of the other Loan Documents, or their execution or delivery, Borrower will promptly pay the same and indemnify Lender against and hold Lender harmless from the costs of the same. 26. Conflict with Other Loan Documents In the event of any conflict between the terms of this Agreement and the terms of any of the other Loan Documents, the terms of this Agreement shall control and govern in all respects. Whenever possible, the provisions of this Agreement shall be deemed supplemental to and not inconsistent with the other Loan Documents. 27. Liability of Lender Borrower agrees that the liability of Lender to Borrower for any breach hereof by Lender shall not exceed a sum equal to the interest on the amount of any advance which Lender may have failed to make in breach of this Agreement, at the rate payable under the Note, computed from the date such advance should have been made to the earlier of (1) the date on which the outstanding principal balance of the Loan becomes due and payable in accordance with its terms, or (2) the date on which such payment is made by Lender. In no event shall Lender be liable for consequential damages or Borrower have any right to set off the amount of any liability of Lender hereunder against any amount due under the Note or any of the other Loan Documents. 28. Successors and Assigns All warranties, covenants, and agreements contained in this Agreement shall inure to the benefit of and shall bind the heirs, executors, administrators, legal representatives, successors and assigns of the respective parties. The obligations of Borrower, if more than one, shall be joint and several. 29. Headings The headings of the sections of this Agreement are for convenience of reference only and shall not be considered a part hereof, nor shall they be deemed to limit or otherwise affect any of the terms or provisions hereof. 30. Governing Law and Severability 16 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am This Agreement and all of the other Loan Documents shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts. In case one or more of the provisions of this Agreement shall be invalid, illegal, or unenforceable in any respect, the validity of the remaining provisions shall be in no way affected, prejudiced, or disturbed thereby. 31. Interpretation Reference to the singular or plural shall be deemed to include the other where the context requires. In particular, the use of Borrower in the singular shall include all borrowers, and the default of any borrower shall be deemed to be a default of all borrowers. This Agreement shall have the effect of an instrument under seal. Borrower: Lender: 17 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am EXHIBIT A Title of Plans: Sheet No. Construction Contracts: Parties Date Work Sheet Title Latest Revision Date___ 18 099998.000522 DEC LIBD/26665.2 11/26/01 10:23 am