CONSTRUCTION AND/OR DEVELOPMENT LOAN AGREEMENT
AGREEMENT made as of the 18th day of September 1997, by and
between FIRSTRUST SAVINGS BANK, a corporation organized and
existing under the laws of the United States, Castor & Cottman
Avenues, Philadelphia, Pennsylvania 19111, herein referred to as
"LENDER", and MARK CENTERS LIMITED PARTNERSHIP, A DELAWARE
LIMITED PARTNERSHIP herein referred to as "OWNER".
WITNESSETH:
WHEREAS, OWNER represents that OWNER has or is about to
obtain good and marketable fee and leasehold title to all that
certain real property described in Exhibit "A" annexed hereto,
hereinafter referred to as the "SUBJECT PREMISES", free and clear
of all easements, restrictions, liens, encumbrances and
conditions of record unacceptable to LENDER: and
WHEREAS, OWNER intends to purchase and/or develop the same
using funds to be advanced by LENDER; and
WHEREAS, LENDER has agreed to lend to OWNER certain funds in
connection with the acquisition and/or improvement of the SUBJECT
PREMISES in reliance upon the foregoing representation and the
further representations of OWNER that the cost of acquisition of
the SUBJECT PREMISES and the cost of completion of the
contemplated improvements in accordance with the plans and
specifications submitted to LENDER by OWNER and approved by
LENDER are as set forth in the certified schedule (hereinafter
referred to as the "cost breakdown") submitted to LENDER by
OWNER:
NOW, THEREFORE, the parties hereto, each intending to be
legally bound hereby, do mutually covenant and agree as follows:
1. Within 18 months from date, OWNER shall construct and
complete upon the SUBJECT PREMISES, ready for occupancy, the
buildings and improvements referred to below in a good,
workmanlike and substantial manner to the reasonable satisfaction
of LENDER and in full compliance with the plans and
specifications submitted to LENDER by OWNER. Wherever used
herein, the term "buildings and improvements" shall include,
without limitation, all buildings shown on the Plans and
Specifications; the appurtenances thereto; street improvements;
on and off-site utilities and connections; all other improvements
to the SUBJECT PREMISES referred to in or required by the plans
and specifications, the commitments specified on Exhibit "B"
hereto, and/or the building and zoning permits and subdivision
approvals issued or to be issued in connection herewith; and any
and all other improvements required by LENDER. At completion and
at all times hereafter, the SUBJECT PREMISES and the buildings
and improvements now or hereafter erected thereon shall be and
shall be kept free and clear and discharged of and from any and
all filed and unfiled mechanics' liens and municipal claims of
whatsoever cause, kind or nature.
2. A. Subject to the terms and conditions of this Agreement
and of the note(s), bond(s) and mortgage(s) hereinafter
mentioned, LENDER shall lend to OWNER sums not exceeding, in the
aggregate, FIVE MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($5,500,000.00---) to be advanced from time to time as work
progresses in amounts and on conditions described in this
Agreement. Each sum shall be advanced and disbursed by LENDER in
accordance with this Agreement(*). The sums so advanced shall
become due and payable and shall be repaid by OWNER to LENDER
within Eighteen (18) months from the date hereof. Interest shall
be computed on the basis of a 360 day year and shall be paid for
the actual number of days funds are outstanding.
B. OWNER shall pay to LENDER, on the first day of each and
every month, interest at the rate set forth on Pages 3 and 3a on
the amount of each installment of the loan theretofore advanced
by LENDER then remaining unpaid and on any interest theretofore
accrued and payable then remaining unpaid. Interest shall
commence to accrue at the time of each advance and, with respect
to accrued and payable interest, at the time such interest became
payable. Payments of interest shall begin on the first day of
the first month following the month in which the first advance is
made by LENDER hereunder. As each and every installment is
advanced or disbursed by LENDER, OWNER shall become liable to
LENDER for the principal amount of the installment so advanced,
plus the interest accruing thereon. Interest payments not
received by the 15th of the month following the billing date will
be subject to a late charge of 7% of the unpaid interest or
$7.00, whichever is greater, for each month that payment remains
unpaid. Late charges shall be due and payable with the interest
payment.
(*) See Paragraph 5 on page 3a of this Agreement.
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1. Interest Rate: It is understood and agreed that interest
shall be earned on this obligation at a variable rate equal to
one (1%) percent per annum over the Firstrust Savings Bank
Commercial Reference Rate.
The term "Firstrust Savings Bank Commercial Reference Rate" or
"Reference Rate" is hereby defined as the announced published or
posted prime rate of Mellon Bank, N.A. The Owner acknowledges
and agrees that (i) such Reference Rate is a floating annual rate
of interest and is used by Lender as a reference base with
respect to different interest rates charged to Owners; and (ii)
Lender's determination and designation from time to time of the
Reference Rate shall not in any way preclude Lender from making
loans to other Owners at a rate which is higher or lower than or
different from the Reference Rate. Firstrust Savings Bank's
Commercial Reference Rate shall change automatically as of the
opening of business on the effective date of each change in the
prime rate of Mellon Bank N.A., which (unless otherwise
designated) shall be the date on which Mellon Bank, N.A.
announces the change in its prime rate. When Firstrust Savings
Bank's Commercial Reference Rate changes on a day other than the
first day of a calendar month, interest for the month in which
such change or changes are made shall be calculated on a per diem
basis that month. Interest is computed on the actual number of
days elapsed over 360 days simple interest basis, that is, by
applying the ratio of the annual interest rate over a year of 360
days, times the outstanding principal balance, times the actual
number of days the principal balance is outstanding. Interest at
such variable rates shall be calculated and billed in arrears on
the first day of each month for interest due to the last day of
the prior month. In the event Lender shall cease to publish or
post its Reference Rate, Lender shall determine another index in
its sole opinion.
2. Additional Interest Clause: Owner agrees that on the date
of maturity or sooner acceleration of this loan, Lender may, at
its option, increase the interest rate to 1.5% per month on the
outstanding principal balance until this loan is repaid in full.
3. Prepayment Privilege: The loan may be prepaid at any time
without penalty upon sixty (60) days prior written notice to
Lender.
3
4. Future Advance Clause: It is understood and agreed by and
between the parties of the first and second parts that the
consideration for the Mortgage is present and future advances of
funds to the Owners, parties of the first part, by the Lender,
party of the second part, in accordance with the terms and
conditions of this Construction and/or Development Loan Agreement
executed by and between the parties and it is understood and
agreed by and between the parties of the first and second parts
hereto that the Mortgage is to secure future advance of funds for
the construction of a 52,825 square foot one-story super market
to be leased by Redner's and to complete miscellaneous
improvements to the balance of Mark Plaza which is located on
Route #11, Edwardsville Borough, Luzerne County, PA the lien of
which advances shall relate back to the date of the Mortgage.
5. Limitation of Funding: Notwithstanding the foregoing,
Lender shall reserve to its Board of Directors full power and the
exclusive right, without regard to any other provision of any
loan instrument or of any agreement applicable to such loan, to
limit advances hereunder to the total sum of $4,600,000 and shall
not be obligated to advance the remaining $900,000 until the full
and final resolution of any and all litigation with respect to
the Property and Land Use Appeal docketed in the matter of
Associated Wholesalers, Inc. and Sunshine Markets, Inc. v.
Edwardsville Borough Planning Commission CCP Luzerne County, No.
737-C-97, and Equity Proceedings instituted in the Court of
Common Pleas of Luzerne County (Sunshine Market, Inc. and
Associated Wholesalers, Inc. vs. Mark Centers Limited
Partnership) on 11/7/96 to No. 95-E-1996 and 3/20/97 to No. 29-E-
1997.
3a
C. LENDER reserves the right to treat full compliance by
OWNER with all provisions of terms of Paragraph 2, 3, 4, 6, 7,
and 8 hereof and proof of the accuracy of the representations of
OWNER contained in the recital hereto as conditions precedent to
its obligation to advance any monies hereunder and may, once such
proofs have been submitted and the provisions and terms of those
paragraphs have been met or any monies have been advanced
hereunder, discontinued such advances in the event of any default
or breach whatsoever by OWNER hereunder. This right is in
addition to and not in lieu of any and all other rights and
remedies available to LENDER in the event of OWNER'S breach or
default. Provided that Owner has complied with the terms of this
Agreement, Lender shall make advances within ten (10) days after
receipt of Owner's voucher and all supporting documentation for
the voucher.
3. A. At execution of this Agreement, OWNER shall make,
execute, acknowledge and deliver to LENDER OWNER'S mortgage note,
or bond and warrant in the amount referred to in Paragraph 2
hereof and a mortgage in a like amount secured as a first lien
upon the SUBJECT PREMISES as collateral for the payment of said
note or bond and for OWNER's compliance herewith.
B. At any time and from time to time, upon demand, OWNER
shall make, execute, acknowledge and deliver to LENDER additional
bond(s) and warrant(s) and/or mortgage note(s) and, as collateral
therefor, additional mortgage(s) secured upon the SUBJECT
PREMISES or any part or parts thereof aggregating, in amount, the
sum referred to in Paragraph 2 hereof. All such mortgages shall
be first liens upon the property subject thereto.
D. The said note(s), bond(s) and warrant(s), mortgage(s)
and all other instruments, writing and agreements to be made,
secured, produced, or delivered by OWNER or any party acting
under or on behalf of OWNER hereunder including the general
contractor employed by OWNER, if any, shall be in form and in
substance satisfactory to and approved by LENDER and shall be
recorded at such time or times as LENDER shall deem appropriate.
The title to said mortgage or mortgages shall be insured at the
expense of OWNER in favor of LENDER for the full principal amount
of said mortgage or mortgages as a continuing first lien or
liens, superior in lien to any mechanics' lien then or thereafter
filed, under a policy in form and with Chicago Title or such
other title companies acceptable to LENDER.
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4. OWNER shall procure binding written contracts with all
materialmen and mechanics for all work to be done and all
materials to be furnished in connection with the construction of
the said buildings and improvements. Each such contract shall be
duly executed and shall contain a covenant, and shall require
execution, acknowledgement, and delivery of a stipulation,
acceptable in form and substance to LENDER, waiving on the part
of the contractor and all those claiming under and through the
contractor the right to have, file or maintain any mechanics'
lien or liens against the said buildings and improvements or the
SUBJECT PREMISES or any part thereof. OWNER shall file each
original executed stipulation waiving mechanics' liens and four
executed copies of each contract with LENDER. One copy of each
stipulation waiving mechanics' liens shall be filed by OWNER, at
OWNER'S cost, in the office of the Prothonotary of the Common
Pleas Court according to the Act of Assembly in such case made
and provided. No work shall be done and no materials or supplies
shall be furnished or purchased for or in connection with the
erection of said buildings and improvements upon the SUBJECT
PREMISES until all recording contemplated by the provisions of
this Agreement, including without limitation, the recording of
the mortgage or mortgages securing the loan of LENDER, has been
accomplished and until OWNER has obtained and filed or caused to
be filed in the Office of the Prothonotary of the Common Pleas
Court of the county or counties where the said premises is
located according to the Act of Assembly in such case made and
provided a waiver or waivers of the right to file or maintain any
mechanics' liens or claims against the buildings and improvements
or the SUBJECT PREMISES or any part thereof valid, in the opinion
of counsel for LENDER, against all persons who may furnish work,
materials or supplies for in connection with the construction
contemplated hereby and available to protect LENDER.
5. OWNER warrants and represents that the street improvements
made or to be made in connection with the building operation
subject hereto have been fully authorized by appropriate
municipal ordinance or other required municipal action; that the
improvements have in fact been completed or that the municipality
involved is proceeding to let the contracts therefor (or, if such
is the obligation of OWNER and not that of the municipality, that
OWNER is proceeding to let the contracts therefor; and that OWNER
has posted with the municipality a bond in an amount deemed
sufficient by the municipality conditioned upon the completion of
such improvements; and that the construction to be done hereunder
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as well as the contemplated use of the said construction is in
strict compliance with all applicable zoning and use ordinances,
is not and will not be in violation of any such ordinances, and
is not and will not be in violation of any easements, agreements
or building restrictions, public or private. OWNER shall, upon
demand, secure and deliver to LENDER written assurances of
appropriate municipal authorities satisfactory to LENDER
evidencing the above.
B. See Completion Assurance Agreements Clause on Page 6a.
6. At or before execution hereof, OWNER shall place and
thereafter OWNER shall maintain in force insurance covering the
said building operation, including, without limitation, Workmens'
Compensation, Liability, tornado and all other insurance which
LENDER may now or hereafter deem reasonably expedient or
necessary. All insurance of whatsoever kind or nature shall be
with such company or companies, in such amounts, and in such form
as LENDER shall reasonably direct. OWNER shall also keep and
maintain in force a policy or policies of fire insurance with
standard and additional extended coverage endorsements. OWNER
shall require that any builders' risk or other similar insurance
required of any person, firm or corporation contracting with
OWNER in connection with the erection of the buildings and
improvements on the SUBJECT PREMISES shall protect against wilful
as well as negligent acts of the insured party and shall contain
a contractual liability endorsement. OWNER shall pay all premiums
required to maintain all such insurance constantly in force and
effect and shall produce evidence of such payment to LENDER upon
demand.
6
B. Completion Assurance Agreements: Owner acknowledges
that at the request of Owner and in order to induce the municipal
or county authorities to enter certain agreements or to issue
necessary approvals or permits, Lender has executed or issued, or
at its sole option hereafter may execute or issue, letters of
credit, escrow letters, holdback letters or other similar
assurances ("Completion Assurance Agreements"), certifying the
availability of funds for the payment of certain costs and
expenses for which Owner is responsible. Owner agrees that any
funds Lender is required to advance pursuant to the Completion
Assurance Agreements shall be deemed to have been advanced under
the Loan and may be advanced without any further authorization
from Owner. Lender shall not be required to advance any proceeds
of the Loan to Owner with respect to work that is the subject of
any Completion Assurance Agreement unless the appropriate
municipal or county authority shall acknowledge to Lender in
writing that Lender's liability under the relevant Completion
Assurance Agreement is reduced by the amount of the requested
advance. In addition, the amounts that are the subject of such
Completion Assurance Agreements shall be deemed to have been
funded under the Loan and shall not be available for allocation
to any other category of the Loan. Upon the occurrence of an
Event of Default herein or under the Completion Assurance
Agreement, Lender shall be entitled, at its sole discretion, to
elect to fund, to the appropriate municipality, county or agency
or into an escrow account acceptable to them, any undisbursed
commitments under any or all then outstanding Completion
Assurance Agreements, all of which sums shall immediately be due
and payable by Owner to Lender and shall be deemed for all
purposes to have been disbursed under the Bond. If, at such time
as Owner shall have otherwise paid in full all amounts of
principal, interest and other sums under the Loan, Lender shall
not have been fully released by the appropriate municipal or
county authorities from Lender's liabilities under each
Completion Assurance Agreement, Lender shall not be obligated to
cancel or return the Bond or to cause the Mortgage to be
satisfied unless Owner shall have deposited with Lender cash in a
sum equal to the aggregate amount of Lender's maximum potential
liabilities under the Completion Assurance Agreements. Such sum
shall be placed in a restricted, non-interest bearing account
with Lender and shall be held as security for the obligations of
Owner to reimburse Lender upon the payment by Lender to any
beneficiary of a Completion Assurance Agreement. The proceeds of
such accounts shall be fully released to Owner at such time as
Lender is fully released from all potential liabilities under the
Completion Assurance Agreements.
6a
7. A complete set of the plans and specifications for the
building operation have been delivered from Owner to Lender and
are described on Exhibit "B" which have been initialled by OWNER
and by the general contractor, if any, and approved in writing by
each person, firm or corporation issuing any commitment for or in
connection with this building operation. A true and correct copy
of the cost breakdown is attached hereto as Exhibit "C" and has
been signed and certified as to accuracy by OWNER. Owner shall
also deliver a survey or surveys of the SUBJECT PREMISES or any
part or parts thereof made by a registered surveyor acceptable to
LENDER.
8. OWNER shall, within three (3) days after written notice from
LENDER, proceed with the construction of the said buildings and
improvements according to the aforementioned plans and
specifications and shall fully finish and complete the same,
ready for occupancy, and all street improvements, utilities and
connections, to the satisfaction of LENDER, within the time
specified. OWNER shall push the said work to completion without
delay, employing a sufficiency of materials and equipment
satisfactory to LENDER to fully finish and complete the said
buildings and improvements within the time specified.
9. OWNER shall comply strictly with all rules, regulations and
requirements of each person, firm, or corporation issuing the
commitments, if any, referred to herein. OWNER warrants and
represents that the buildings and improvements mentioned herein
will, when completed, qualify for all such commitments. OWNER
shall comply with and obtain all approvals required by Federal,
state and municipal statues, laws, and ordinances and all
regulations, rules and directions of Federal state and municipal
authorities which apply to or affect the building operation and
the SUBJECT PREMISES, whether or not the particulars are set
forth in the plans and specifications. If FHA or VA commitments
have been issued, OWNER shall comply with all requirements
therein and all construction must likewise comply with the same.
10. OWNER agrees that all monies deposited; all sums advanced
under loans (with the said note(s), bond(s) and mortgage(s) as
collateral security or otherwise) the proceeds of any other
mortgages which might be placed upon the SUBJECT PREMISES; shall
be deposited with LENDER to the credit of the Construction
Account, hereinafter referred to as "Account", established by
LENDER in connection with this transaction. LENDER is hereby
7
irrevocably authorized, empowered and directed subject to the
procedures for funding under Par. 11 below, whenever in its
judgement the same shall be necessary or expedient, either with
or without voucher signed by OWNER, to apply or hold in reserve
any funds deposited to the credit of the Account for payment of
any or all of the foregoing, with such preference or priority in
payment among them as LENDER, in its sole discretion, shall
determine:
A. All sums or indebtedness due LENDER (whether or not
related to the building operation) including advances made by
LENDER in excess of its original commitment together with
interest thereon;
B. Premiums for insurance;
C. Title insurance charges, service charges and charges
for any special insurance against mechanics', municipal or other
liens or claims (which insurance shall be placed only with a
title insurance company approved by LENDER);
D. The cost of drawing and recording deeds, notes, bonds
and mortgages and other instruments and all federal, state and
local taxes thereon;
E. Commissions and all advertising and other costs for the
sale of all mortgages, securities or property held or obtained by
LENDER;
F. Expenses, including counsel fees, incurred by LENDER on
account of any matter or thing, whether in suit or not, arising
out of this Agreement or anything in connection herewith;
G. Commissions for collection of rents and interest;
H. Costs and fees, including counsel fees, incurred in
foreclosure or other legal proceedings;
I. Taxes and municipal charges assessed against or imposed
upon the SUBJECT PREMISES or any part thereof;
J. Interest and principal on any or all mortgages secured
on the SUBJECT PREMISES or any part thereof;
8
K. Any sums required to indemnify or to save LENDER
harmless or to defend LENDER from any and all loss or liability
by reason of any act or omission to act on the part of LENDER
and/or OWNER and/or the general contractor, if any, in connection
with this Agreement or otherwise;
L. Debts contracted by OWNER or others for work actually
done and for materials actually furnished in and about the said
buildings and improvements and for incidental expenses connected
therewith; provided, however, that the application of such monies
to debts contracted for work, equipment and material shall be
subject to the provisions of Paragraphs 11 and 12 hereof and
nothing herein contained shall be construed as vesting in any
person, firm or corporation furnishing work or materials or
equipment any right to sue or recover payment from or have or
secure a lien or charge upon or against the Account or LENDER or
to have or secure any right to an accounting in connection
therewith. The obligation of LENDER to make all such payments as
set forth in Paragraphs 11 and 12 hereof is expressly made
subject, however, to the right herein granted to LENDER to
exercise exclusive and final control and discretion with respect
to the amount and time of such payments and the person, firm or
corporation, if any, to whom they shall be made. Subject as
aforesaid, the funds in the Account shall not be appropriated or
applied for any other uses or purposes whatsoever and shall not
be liable to attachment or other legal proceedings, or be
assigned or diverted, except by LENDER, in any way from the uses
and purposes herein designated; provided, however, that LENDER
shall have and hereby is granted a first lien and claim on all of
said funds or any balance thereof in its possession or in the
Account at any time and from time to time for the payment of all
debts or obligations of OWNER to LENDER due or to become due,
liquidated or contingent. LENDER is hereby irrevocably
authorized to apply any balance in its possession or in the
Account to the payment of such debts and obligations whenever, in
its discretion, it shall deem it necessary or expedient so to do.
11. Subject as aforesaid to LENDER'S discretionary powers, all
monies deposited, or agreed to be deposited, in the Account may
be disbursed or paid out from time to time directly to OWNER upon
production with the voucher of releases of liens from the several
contractors, mechanics and materialmen or, following a default by
Owner, at LENDER'S option and in LENDER'S discretion, to the
several contractors, mechanics and materialmen only for work
9
actually done and for materials or equipment actually furnished
in and about the construction of the said buildings and
improvements. Payment to any general contractor, subcontractor
or materialmen shall constitute an advance to OWNER and a
complete discharge of the liability of LENDER for the amount so
paid. Subject as aforesaid, such payments shall be made only
upon vouchers signed by OWNER or OWNER'S duly constituted
attorney-in-fact and the general contractor, if any, and
countersigned by the proper officers of LENDER. Also subject as
aforesaid, the amount due for other expenses payable out of the
Account, at LENDER'S option and in its discretion following a
default by Owner, may be paid directly to the several parties
entitled thereto or to OWNER and shall be paid only upon like
vouchers. Unless LENDER, in its discretion, shall determine
otherwise, no part of such monies may be drawn from the Account
by OWNER, directly or indirectly, for OWNER'S personal use until
after final completion of the said buildings and improvements and
until after all sums due LENDER by OWNER in connection with this
building operation or otherwise have been paid and all liability,
contingent and liquidated, of LENDER shall have ceased or been
satisfied. Anything herein contained to the contrary
notwithstanding, LENDER shall in no event be obligated to inquire
into the accuracy or correctness or reasonableness of the cost
breakdown supplied by OWNER, nor shall LENDER have any obligation
or duty to OWNER or to any other person, firm or corporation,
including, without limitation, contractors, subcontractors,
materialmen and suppliers, to ascertain whether or not the
payments made by LENDER correspond in amount to the sums to which
the payee or payees are entitled under the terms of the cost
breakdown, voucher, order, or any other document or documents
relating thereto or whether the person, firm or corporation to
whom or to which the payment is made is the proper recipient
thereof and, in the connection, it is expressly agreed that
LENDER shall have no liability as a result of the making or
withholding of any payment even if its acts are negligent and
this shall be true whether or not LENDER has actual knowledge
that the payee or payees are misapplying the monies paid and/or
are not or have not or do not intend to pay their or any of their
contractors, subcontractors, suppliers or materialmen. OWNER,
for OWNER and all those claiming under or through OWNER, hereby
releases and agrees to indemnify, defend and save harmless LENDER
for, from, of and against any and all liability whatsoever as a
result of or in connection with the payment or non-payment by
LENDER to OWNER and/or any person, firm or corporation whatsoever
10
of all or any part or parts of the monies deposited or required
to be deposited in the Account whether or not such liability is
caused by or results from, directly or indirectly, the negligence
of LENDER or any other person, firm or corporation. In
connection with the foregoing, it is expressly understood and
agreed that the provisions hereof shall be applicable to, inter
alia, any situation or circumstance in which LENDER applies such
monies or property to satisfy the indebtedness of OWNER to LENDER
or to cure or protect against or prevent any default hereunder as
well as to the circumstance in which monies paid by LENDER to any
person, firm or corporation, including OWNER, exceed or are less
than the monies properly payable to such person, firm or
corporation and also to the circumstance where the monies
retained in the Account by LENDER are insufficient to permit the
completion of construction and/or the payment of all or any
materialmen, suppliers, laborers, contractors, etc., and to the
situation where LENDER after a default by Owner has, before or
after making any payments, been advised by OWNER, the general
contractor, if any, and/or any subcontractor, materialmen or
supplier has failed or refused or intends to or will fail or
refuse to pay any person, firm or corporation any or all monies
due by it, him, her or them and LENDER continues to make payments
without regard to such advices. Vouchers shall be issued by
OWNER only on account of work performed or materials or equipment
supplied under contracts which LENDER has previously approved in
writing. Each voucher shall constitute a representation by OWNER
that it is issued under and in accordance with a contract or
contracts which LENDER has previously approved in writing; that
the work and material for which payment is requested have been
physically incorporated into the construction; that the value is
as estimated and that the cost does not exceed the cost specified
on the cost breakdown; and that the work and material for which
payment is requested conform to the plans and specifications, to
all commitments, and to all applicable statues, laws, ordinances,
rules, regulations and requirements. Neither the payment and/or
counter signature of vouchers by LENDER nor the approval thereof
by any agent of LENDER shall constitute an acceptance of the work
and materials nor be binding on LENDER except to the extent that
the facts actually are as so represented. LENDER may, in its
discretion, withhold payment on any voucher pending inspection of
the construction to determine the truth or falsity of the said
representations or for any other reason whatsoever but LENDER
shall have no obligation or duty to any person, firm or
corporation whatsoever to do so whether or not it would be
11
negligence or gross negligence to refrain from so doing. LENDER
further reserves the right to withhold payment on any voucher,
whether or not the said voucher has theretofore been
countersigned, whenever LENDER shall determine, in its discretion
and judgment, that OWNER or the general contractor, if any, or
any subcontractor, is in default as herein provided. In
connection with the foregoing, it is understood and acknowledged
by OWNER, on OWNER'S behalf and on behalf of all those
contracting, directly or indirectly, with OWNER and/or the
general contractor, if any, that LENDER shall have no liability
or responsibility whatsoever for or as a result of its
determination that OWNER or the general contractor is or may be
in default hereunder and the consequences of such determination.
12. A. In order to secure more effectually the proper and
specific appropriation of the monies so deposited or required to
be deposited in the Account to the uses and purposes herein
designated, OWNER hereby irrevocably constitutes and appoints
LENDER OWNER'S true and lawful attorney for OWNER and in OWNER'S
name following a default by Owner hereunder to sign any and all
vouchers for the disbursement of the monies so deposited or
required to be deposited that LENDER, as attorney-in-fact, may,
in its discretion, deem necessary or expedient to secure the
construction and full completion of the said buildings and
improvements according to the terms of this Agreement and to pay
all sums necessary for all and any other expenses (including
without limitation, cost of work and materials furnished and to
be furnished, permit fees, taxes, water and sewer rents, the cost
of title, fire, liability and/or special insurance, the cost of
any and all street and improvements, claims, liens, construction
charges, the cost of all extra or additional labor and material
and any and all other costs, charges, and/or expenses or
whatsoever nature and character which, in its discretion, LENDER
may deem necessary or expedient to incur or which have been
incurred in connection herewith). OWNER hereby irrevocably
authorizes and empowers LENDER to do and perform for OWNER and in
OWNER'S name, as OWNER'S attorney-in-fact following a default by
Owner hereunder, all matters and things which LENDER shall, in
its discretion, deem necessary or expedient to effectuate the
performance and purposes of this Agreement and to insure the
application of such monies to the payment of debts contracted or
incurred for work done and/or for materials furnished in and
about the construction of the said buildings and improvements and
for any and all other expenses and, for its so doing, this
12
warrant of attorney shall be its full and sufficient authority
and the vouchers so given and signed by LENDER as attorney-in-
fact shall be good and sufficient vouchers for all payments made
by virtue thereof. The authority herein given may be exercised
by LENDER in the event of the default hereunder of OWNER; in the
event of OWNER"S inability or refusal to act in accordance with
this Agreement, in the event of OWNER"S insolvency; if a petition
in bankruptcy is filed by or against OWNER; if OWNER shall make
an assignment for the benefit of creditors; or in the event
LENDER, in its discretion, shall determine that Owner is in
default hereunder or its security is threatened.
B. If work on the said buildings and improvements is
delayed or suspended for five consecutive business days without
cause satisfactory to LENDER, or if OWNER does not prosecute the
work vigorously with such force of workmen and mechanics as shall
be satisfactory to LENDER at any time during the progress of the
erection of the said buildings and improvements, or if OWNER
shall, in the opinion of LENDER, refuse, omit or neglect or be
unable to supply a sufficiency of materials and workmen to push
the said work to completion, LENDER may, in its discretion, but
need not, upon three days' written notice mailed to the address
of OWNER, secure and cause said buildings and improvements to be
completed for the account of and at the sole cost of OWNER and
recover under this Agreement and any bond or bonds of indemnity
executed, or to be executed, any amount expended for such
purpose, together with all expenses as aforesaid. In the event
of a proceeding under this Agreement or if judgment is entered on
any bond or bonds of indemnity for the recovery of any monies
expended for the completion of the said buildings and
improvements or for the payment of liens thereon or for the
payment of any or all other expenses as aforesaid, an account of
such expenditure verified by an officer of LENDER shall be
conclusive evidence of the amount so expended and of the
necessity for the same.
13. A. OWNER shall indemnify, defend and save harmless LENDER,
its successors and assigns, of and from any and all los,
including counsel fees and costs, of whatsoever kind and nature,
whether as mortgagee or otherwise, resulting from or arising,
directly or indirectly, in connection with any default or
threatened default by OWNER hereunder.
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B. OWNER shall, within ten days after written notice from
LENDER, pay, discharge and have satisfied or record any liens or
claims for work, materials, and/or labor done or to be done or
furnished or to be furnished for or in connection with the
construction of the said buildings and improvements which have or
may be entered or filed of record against the SUBJECT PREMISES or
any part thereof. If OWNER fails to do so within ten days after
such notice, LENDER may pay off, discharge and have satisfied of
record any such liens or claims and OWNER shall repay to LENDER
all sums of money expended by it for this purpose, including
counsel fees and costs, and LENDER, in so doing, shall not be
required to inquire into the validity or propriety of such lien
or claim.
14. If a petition in bankruptcy is filed by or against OWNER, or
if OWNER shall, in the opinion of LENDER, at any time during the
progress of the construction of the said buildings and
improvements, cease work thereon or abandon the same for a period
of five consecutive business days, LENDER shall have the right,
and is hereby irrevocably authorized and empowered, to enter into
and upon the SUBJECT PREMISES and take charge thereof, together
with all materials and appliances thereunto belonging, and
thereupon, in the name of OWNER, as OWNER's attorney-in-fact, to
call upon the several contractors for the work to be done for the
materials to be furnished in and about the construction of the
buildings and improvements and may require several contractors to
proceed to complete the said buildings and improvements according
to the contracts, plans and specifications (or any changes,
alterations, additions or modifications thereof or thereto deemed
expedient or necessary by LENDER) and to do whatsoever else
LENDER, in its discretion, shall deem necessary or expedient to
be done to secure the erection and construction of the said
buildings and improvements according to the said contracts, plans
and specifications, and the changes, etc., thereto, if any, and
to save LENDER from any loss in connection therewith.
16. Lender is hereby irrevocably authorized, empowered and
directed to cause to be created, executed, acknowledged and
delivered all other mortgages which, in the opinion of LENDER,
should be placed upon the SUBJECT PREMISES or any part or parts
thereof. The net proceeds of said mortgages shall be deposited
to the credit of the Account and disbursed as hereinbefore
provided.
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17. OWNER agrees, for OWNER and all those claiming under or
through OWNER, that all materials delivered to the SUBJECT
PREMISES by mechanics or materialmen or suppliers for the purpose
of being used in or in connection with the erection of the said
buildings and improvements, whether actually deposited upon the
premises or upon lots or highways nearby, shall be considered
annexed to and shall be a part of the SUBJECT PREMISES as if
actually incorporated in the said buildings and improvements and
shall be subject, as against OWNER and all parties acting or
claiming under or through OWNER, to the rights, conditions, and
covenants to which the SUBJECT PREMISES are subject under this
Agreement (including, in particular), but without limitation, the
lien of the mortgage(s) referred to in Paragraph 3 hereof and the
lien of any and all other mortgages made at the insistence of
LENDER in connection herewith), but nothing herein contained
shall make LENDER responsible for any los, damage or injury to
the said materials or for the payment for the same.
18. Upon default, OWNER shall deposit with LENDER, to the credit
of the Account, all sums received by OWNER as payments on account
of the purchase or lease of the buildings and improvements, or
any part or parts of them, or of the SUBJECT PREMISES,
immediately upon receipt of such sums. LENDER shall be under no
obligation to any third party for the collection, retention or
disposition of such sums.
19. Upon default, LENDER is hereby irrevocably authorized,
directed and empowered, in its discretion, without notice to
OWNER, to reduce the principal of any or all mortgages secured or
to be secured upon the said buildings and improvements and/or the
SUBJECT PREMISES and to sell, assign, transfer, or dispose of any
and all such mortgages at such principal sum as shall be
determined and established by LENDER in its discretion. Lender
agrees that for so long as Owner is not in default hereunder, all
rents received by Lender and deposited in Account # 141008517 may
be withdrawn by Owner.
20. B. If Lender shall determine, in its sole opinion, that
the undisbursed proceeds of the Loan will be insufficient to
complete the improvements, OWNER shall, upon demand, deposit with
LENDER the shortfall in cash or, at LENDER'S option, marketable
securities, as further security (1) for the completion of
construction of the buildings and improvements; (2) for the
15
faithful and complete performance by OWNER hereunder; (3) for the
repayment of advances made by LENDER; and (4) for the repayment
to LENDER of all losses, damages costs and expenses incurred by
LENDER or which are obligations of OWNER hereunder or in
connection herewith. The said monies shall be deposited by
LENDER in the Account and held, without interest, subject to the
terms hereof. In the event any securities deposited with LENDER
hereunder shall, in the opinion of LENDER, be reduced in value or
if any monies deposited hereunder shall be applied by LENDER to
the cost of construction of the said buildings and improvements,
OWNER shall, upon demand, deposit with LENDER, as additional
security, cash or, at LENDER's option, marketable securities
sufficient to replace the monies so applied or offset such
reduction in value. LENDER may, but shall not be obligated to,
accept work and materials on the site of or incorporated into the
building operation in lieu of all or part of the cash to be
deposited hereunder. LENDER'S decision as to the value of such
work and materials shall be final and binding on OWNER.
21. OWNER expressly agrees that in the exercise of its remedies
hereunder LENDER or any other person, firm or corporation may
become the purchaser of any property, including the SUBJECT
PREMISES, sold by LENDER, or its nominee, at private, public or
judicial sale free, clear and discharged of any and all trusts
and without any liability to account to OWNER or anyone claiming
under or through OWNER for any profits subsequently realized by
such purchaser by or through a resale of such property or the
operation thereof or any part or parts thereof, or otherwise.
22. After the completion of the buildings and improves and when
all liability for mechanics' liens and municipal claims shall
have expired and all street improvements, utilities and
connections have been made and paid for, and after the payment or
discharge in full of all of the items enumerated in Paragraph 10
hereof and after the repayment of all advances, any balance
remaining in the Account shall be paid to OWNER or to such
person, firm or corporation as the OWNER in writing may direct,
unless OWNER is otherwise indebted to LENDER or in default
hereunder, in which event any such balance shall be applied to
the payment of such indebtedness and/or the curing of such
default.
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23. LENDER shall have the right to enter upon the SUBJECT
PREMISES at any time and from time to time to inspect the work in
course of preparation and completion and/or for any other lawful
purpose and OWNER shall provide appropriate facilities for making
proper inspections of the work by the inspector or inspectors of
LENDER, and/or LENDER'S authorized representatives. OWNER shall,
within twenty-four (24) hours after receiving written notice from
LENDER so to do, proceed to remove from the premises all matters
and materials condemned by LENDER, its inspectors or
representatives, or the supervising architect, if any, whether
worked or unworked, and to take down all portions of the work
which LENDER, by like written notice, may condemn as unsound and
improper or as in any way failing to conform strictly with the
plans and specifications, and shall make good all work or
materials damaged thereby. OWNER agrees further, in order to
facilitate the proper completion of the said buildings and
improvements, to permit LENDER upon Owner's default to place upon
the SUBJECT PREMISES a superintendent whose duties shall be to
require that the buildings and improvements are constructed and
completed in accordance with the plans and specifications
(subject to such modifications as LENDER may, in its discretion,
deem necessary or expedient) in whatever way may be proper in the
opinion of LENDER and the said superintendent. The salary of
said superintendent shall be paid by OWNER out of the funds of
the operation on vouchers properly drawn as hereinbefore
provided. For all purposes, as between the parties and as to
third persons, any such superintendent shall be deemed an
employee only of OWNER and not of LENDER. OWNER shall keep and
maintain proper books and records for the building operation in
accordance with good accounting practice. Such books and records
shall at all times be open to and available for inspection by
LENDER or its designee.
24. The occurrence of any of the following events shall, at the
option of LENDER, which determination shall be evidenced by a
written notice of default to OWNER, constitute a default by OWNER
hereunder:
A. If any petition under the provision of the National
Bankruptcy Act shall be filed by or against Owner and if filed
against Owner such petition is not discharged within 90 days;
B. If OWNER shall make an assignment for the benefit of
creditors;
17
C. If a receiver shall be appointed for OWNER or the
property or assets of OWNER;
D. If OWNER shall become insolvent:
E. If any execution be levied or attachment be made
against the building, rents and income thereto operation or any
part thereof or (2) the rental income of the Winn Dixie Lease
which is separate collateral for the Loan;
F. If work on the buildings or improvements shall be
suspended for five (5) consecutive business days without cause
satisfactory to LENDER;
H. If OWNER fails to pay when due any bill from
subcontractors or materialmen who have performed work or
furnished material for or in connection with the building
operation;
I. If the building operation be materially injured or
destroyed by fire or otherwise; and such insurance proceeds
either are not sufficient to cause the complete reconstruction
thereof and/or will not be paid in a timely fashion to permit
occupancy of the Premises by Redner's Markets in accordance with
the terms of its lease.
J. If OWNER violates or fails to perform any of the terms,
covenants, and agreements on the part of OWNER to be performed
hereunder following receipt of Lender's written notice of default
and Owner's failure to cure within 30 days; or
K. If OWNER fails to repay any advance by LENDER or the
interest thereon when due or fails to pay any indebtedness of
OWNER to LENDER, whether arising under this Agreement or under
any obligation referred to herein or otherwise, when due subject
to the notice and grace provisions contained in the Bond.
In the event of a default hereunder as aforesaid, all monies
advanced by LENDER and all bonds, mortgages, notes, mortgage
notes and obligations given pursuant hereto shall, at the option
of LENDER, become at once due and payable and in default and it
shall be lawful for LENDER, at its option, three (3) days after
notice of default to OWNER, to enter upon the SUBJECT PREMISES
and take possession thereof together with the buildings and
improvements and all materials, supplies and appliances located
18
thereon and thereabout and proceed, as LENDER may elect, either
in its own name or in the name of OWNER, as OWNER'S attorney-in-
fact, being hereby so authorized and appointed irrevocably by
OWNER, to complete the construction of the buildings and
improvements at the cost and expense of OWNER according to the
terms of this Agreement, or according to such changes or
modifications to the plans and specifications as LENDER, in its
discretion, shall deem necessary or expedient, and to enforce or
cancel all contracts or make such other contracts as it may deem
advisable and to recover under this Agreement, or under any
bond(s) and warrant(s), note(s) or mortgage(s) or other
obligations executed in favor of or transferred to LENDER, all
amounts due LENDER under this Agreement and all amounts expended
for proceeding as aforesaid, together with any costs, counsel
fees, charges, or expenses incidental thereto or otherwise
incurred or expended by it, or on its behalf, in connection
herewith. In any proceeding for recovery of advances under this
Agreement and/or for reimbursement for any monies expended by
LENDER in connection with the said building operation, as well as
upon the entry of judgment on any bond or obligation, a statement
of expenditures verified by the affidavit of an officer of LENDER
shall be conclusive evidence of the amounts so expended and of
the propriety and necessity for such expenditures. LENDER shall
have the right to use any funds, securities or other property
(including, without limitation, savings and checking accounts and
certificates of deposit with LENDER owned, legally or
beneficially, by OWNER) in its hands belonging to OWNER (whether
pertaining to this operation or not) and any funds, securities,
or other property deposited under this Agreement to secure
completion of construction of the buildings and improvements to
pay the debts, costs and expenses incurred by LENDER or any other
person, firm or corporation in connection therewith and to repay
all sums due to LENDER under this Agreement or otherwise and
OWNER shall, upon exhaustion of the monies or other assets of the
Account or arising out of the building operation, pay to LENDER,
upon demand, such sums of money as LENDER may from time to time
demand for the purpose of completing the construction of the
buildings and improvements or of paying any liability, charge, or
expense incurred or assumed by LENDER pursuant to this Agreement
or for the purposes of or in connection with the construction
contemplated by this Agreement.
25. The failure of LENDER to insist in any one or more instances
upon the performance of any of the covenants and conditions of
this Agreement or to exercise any right or privilege herein
19
conferred upon LENDER shall not be construed thereafter as a
waiver or relinquishment of any such covenants, conditions,
rights or privileges and the same shall continue and remain in
full force and effect.
26. OWNER shall repay all sums or indebtedness due LENDER
hereunder with the period specified as provided in Paragraph 2a
hereof, or at such other date, if any, as the loan becomes due by
reason of default or by reason of the completion and sale of the
buildings and improvements constructed under this Agreement, or
at the time required by the terms and conditions of any note(s),
bond(s) and mortgage(s) given by OWNER or LENDER, whichever shall
be the earliest date.
27. OWNER shall indemnify, defend and save harmless LENDER, its
successors and assigns, and its nominee referred to in Paragraph
21 hereof, of, from and against any and all loss or damage of
whatsoever kind or nature and of, from and against any suits,
claims or demands, including LENDER'S counsel fees and expenses,
on account of any matter or thing, whether in suit or not,
arising out of this Agreement or in connection herewith, or on
account of any act or omission to act by LENDER in connection
herewith. This obligation shall survive the completion of said
buildings and improvements and the repayment of the advances made
by LENDER hereunder.
28. The remedies herein provided shall be in addition to and not
in substitution for the rights and remedies which would otherwise
be vested in LENDER in law or equity, all of which rights and
remedies are specifically reserved by LENDER. The remedies
herein provided or otherwise available to LENDER shall be
cumulative and may be exercised concurrently. Failure to
exercise any of the remedies herein provided shall not constitute
a waiver thereof and shall not preclude the resort to any other
appropriate remedies. The use of the remedies herein provided or
otherwise available in equity or law shall not prevent the
subsequent or concurrent resort to any other remedy or remedies
vested in LENDER hereunder or by law or equity. This clause
shall be broadly construed so that all remedies herein provided
or otherwise available to LENDER shall continue to be available
to LENDER until all sums due to it by reason of this Agreement
have been paid in full to it and all obligations incurred by it
or its nominee or trustee as aforesaid in connection with the
building operation have been fully discharged without cost or
loss to LENDER or its nominee.
20
29. A default by OWNER hereunder shall likewise be and
constitute a default in the note(s), bond(s) and mortgage(s)
given or made by OWNER in connection herewith and in each and
every obligation and other Agreement given by OWNER to LENDER
pursuant to or in connection with this Agreement or the building
operation. A default by OWNER under any such note(s), bond(s),
mortgage(s), obligations or other agreements shall likewise be
and constitute a default by OWNER hereunder.
30. OWNER shall pay upon demand:
A. All charges for drawing all deeds, instruments, bonds,
mortgages, and mortgage notes:
B. All federal, state and municipal documentary, revenue
or transfer stamps required thereon;
C. All taxes or tax stamps on deeds of transfer or
conveyance and/or on any other instruments or documents
whatsoever;
D. Recording fees for all deeds and mortgages and other
instruments and documents;
E. The cost of searches, examination of title, and title
insurance, including special insurance against mechanics' liens
and/or municipal claims;
F. The cost of surveys required by LENDER and/or the
permanent mortgagee(s);
G. All premiums on insurance required hereunder;
H. A fee to counsel for LENDER of $7,500.00 and/or the
permanent Mortgagee(s); and
I. All other expenses or costs incident to the obtaining
or making of the loan contracted for, to the construction
contemplated by this Agreement, to the sale or lease of the
buildings and improvements, to the sale of the Note(s), bond(s)
and mortgage(s) thereon, and all payments required to complete
the buildings and improvements in accordance with this Agreement
and to comply with the terms, covenants, promises and agreements
on the part of OWNER to be kept and performed hereunder. Should
OWNER fail to make any payment as herein required, LENDER may, at
21
its option and in addition to all other remedies herein provided
for or otherwise available to it, at any time, pay the same,
charging the amount thereof to OWNER, and deduct the said amount
from any installment thereafter to be advanced hereunder or from
any monies, assets, or property of OWNER deposited with LENDER in
connection herewith or otherwise, and OWNER shall be and remain
liable for any deficiency thereafter remaining.
31. LENDER is not a partner with OWNER or any other party in the
building operation and is not interested in the profits thereof
except to the extent they may be collateral for the advances,
etc. made or paid by LENDER hereunder. LENDER shall not be in
any way liable or responsible for the payment of any claims
arising out of or in connection with the construction of the said
buildings and improvements or the acts of LENDER or OWNER in
connection herewith by reason of the provisions hereof or
otherwise.
32. The entire compensation of LENDER provided for in this
Agreement shall be considered as having been earned upon
execution hereof by OWNER and shall then be due and payable,
whether or not any further service or undertaking by LENDER shall
be required or occur.
33. Exit Fee: Should OWNER fail to obtain financing of the
Property from LENDER pursuant to the provisions of Paragraph 22g
of the January 8, 1997 Loan Commitment Letter, whether or not
LENDER is arbitrary or capricious in failing to make such loan,
then OWNER shall pay LENDER an exit fee equal to the greater of
1% of the Loan Amount or $54,000 on the earlier of eighteen (18)
months from closing or the date of prepayment of this Loan. The
provisions hereof shall also apply notwithstanding that OWNER may
have repaid this Loan from cash on hand and without the necessity
of any financing.
34. LENDER is hereby irrevocably authorized, whenever it shall
deem it necessary or expedient, to cause any bond(s), warrant(s),
note(s), mortgage(s), agreements or other instruments or writings
given in connection herewith or hereunder to be completed or
amended in any respect in which the same may be incomplete or in
which the same are required to be amended to comply with all
commitment issued in connection herewith, to make the same
salable and/or to cause the same to be insured by any insuring
agency, and to record such mortgage(s) as may not then be
recorded and any amendment or amendments thereto.
22
35. No advance or payment made hereunder, including final
payment, shall be evidence of the performance of this contract,
either in whole or in part, and no advance or payment, including
the final payment, shall be construed to be or constitute an
acceptance of any defective or faulty work or improper materials
or a waiver of any of the provisions hereof.
36. All notices to be given by LENDER to OWNER shall be deemed
to have been property given and served when given by certified
mail addressed to OWNER at OWNER's address mentioned at the
beginning of this Agreement and such notices may also be served
in person by delivery to OWNER or to an agent of OWNER at such
address. All times in connection with such notices shall run
from the time of mailing (if mailed) or delivery thereof (if
delivered other than by mail). Notices to LENDER shall be in
writing and shall be valid only when delivered to an executive
officer of LENDER at its place of business mentioned at the
beginning of this Agreement.
37. The word "OWNER", as used herein, shall include collectively
all parties designated as such at the beginning hereof. All such
parties shall be obligated jointly and severally hereby. The
term "OWNER" shall also include, where appropriate, all agents
straw men and nominees of OWNER.
38. This Agreement shall inure to the benefit of and be binding
upon the parties hereto, their heirs, personal representatives,
successors and, to the extent permitted herein, assigns.
39. OWNER shall not and may not assign, transfer, or otherwise
encumber this Agreement, or any rights in LENDER'S commitment or
any other commitment in connection herewith, or any monies,
property or funds deposited with LENDER. An assignment,
transfer, pledge, etc., in violation hereof shall be invalid and
shall vest no rights whatsoever in the assignee, transferee, etc.
40. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to
persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each
term and provision of this Agreement shall be valid and be
enforceable to the full extent permitted by law.
23
41. OWNER, in addition to the payment of interest on the said
loan, agrees to pay LENDER a service charge, at execution hereof,
of $30,000.00 which Lender has received for services rendered or
to be rendered by LENDER in connection with this Agreement.
LENDER reserves the right to make additional charges for
extraordinary services rendered, if any.
IN WITNESS WHEREOF, the parties hereto have caused these
presents to be executed the day and year first above written.
FIRSTRUST SAVINGS BANK
BY: /s/ William F. Bruckner
Vice President
ATTEST: /s/ Alice T. Moffett
Assistant Secretary
OWNER: MARK CENTERS TRUST, A MARYLAND
BUSINESS TRUST, ITS GENERAL
PARTNER
BY: /s/ Joshua Kane
Senior Vice President and CFO
ATTEST: /s/ Steven M. Pomerantz
Assistant Secretary
24
LIST OF EXHIBITS
EXHIBIT "A" LEGAL DESCRIPTION
EXHIBIT "B" PLANS AND SPECS
EXHIBIT "C" COST BREAKDOWN
25