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Exhibit 10.124
CONSTRUCTION LOAN AND SECURITY AGREEMENT
BETWEEN
ALS-CLARE BRIDGE, INC.
AND
SOVEREIGN BANK
DATED AS OF MAY 1, 1998
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INDEX
Section Heading Page
1. The Loan..............................................................1
2. The Project...........................................................1
3. Construction Contracts; Capital Costs.................................1
4. Collateral; General Assignment........................................1
5. Conditions Precedent..................................................3
6. Disbursement and Application of Loan Proceeds.........................3
7. Representations and Warranties........................................5
8. Construction of Improvements..........................................7
9. Completion............................................................7
10. Extensions of Construction Period; Failure to Achieve
Breakeven Operation.................................................8
11. Other Construction Obligations and Covenants of Borrower..............9
12. Change Orders........................................................10
13. Inspections..........................................................10
14. No Representation by Inspections.....................................10
15. Compliance With Contracts............................................11
16. Compliance With All Laws.............................................11
17. Proof of Title.......................................................11
18. Warrant of Attorney..................................................11
19. Indemnity............................................................11
20. Defaults.............................................................11
(i)
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Section Heading Page
21. Cross Default and Cross Collateralization............................11
22. Notices..............................................................12
23. Severability.........................................................12
24. Third Parties........................................................12
25. Complete Agreement...................................................12
26. Governing Law........................................................12
27. Waiver of Jury Trial.................................................12
28. Counterparts.........................................................12
29. Miscellaneous........................................................12
EXHIBITS
A - Legal Description of Property
B - List of Plans
C - Statement of Sources and Application of Funds
D - Loan Advance Requisition Form
E - Loan Advance Certificate
(ii)
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CONSTRUCTION LOAN AND SECURITY AGREEMENT
This Agreement is made as of this 1st day of May, 1998 between
ALS-CLARE BRIDGE, INC. ("Borrower"), a Delaware corporation with an address at
c/o Alternative Living Services, Inc., 450 North Sunnyslope Road, Brookfield,
Wisconsin 53003 and SOVEREIGN BANK, ("Bank"), with an address at Two Aldwyn
Center, Lancaster Avenue and Route 320, Villanova, Pennsylvania 19085.
Intending to be legally bound, Borrower and Bank hereby agree as
follows:
1. The Loan. Pursuant to a Commitment Letter dated February 9,
1998 (such letter, including the General Conditions attached thereto, the
"Commitment Letter") and subject to the terms and conditions of this Agreement,
Bank agrees to lend to Borrower Three Million Four Hundred Fifty Thousand
Dollars ($3,450,000) (the "Funds" or the "Loan"). All capitalized terms used in
this Agreement and not otherwise defined shall have the meanings given to them
in the Commitment Letter.
2. The Project. Borrower owns approximately 5.0 acres of land
situated near the intersection of Blue Course and Whitehall Road, Furguson
Township, Centre County, Pennsylvania and more fully described in Exhibit A
attached hereto (the "Property"), and proposes to construct thereon a 20,987
square foot assisted living facility and related site improvements (the
"Improvements") as more fully described in the plans, drawings and
specifications prepared by Adrian Guszkowski (the "Architect"), delivered to
Bank and listed in Exhibit B attached hereto, as modified by any Change Orders
effected in accordance with the terms hereof (the "Plans"). The Property and the
Improvements are sometimes hereinafter collectively called the "Project".
3. Construction Contracts; Capital Costs. Borrower, as owner of
the Property, has entered into an agreement (the "Architect's Agreement") with
the Architect for the rendering of architectural services in connection with the
Project, and a guaranteed maximum price general construction contract dated
February 24, 1998 (the "General Contract") with Continuing Care Concepts, Inc.
(the "General Contractor") for the construction of the Improvements. The
Statement of Sources and Application of Funds attached hereto as Exhibit C is an
estimate of the capital requirements for the Project. Borrower will use the
Funds only to finance costs that have been or will be incurred by Borrower to
construct and complete the Improvements and other costs associated with the
development of the Project.
4. Collateral: General Assignment. Borrower hereby grants to
Bank, as security for the performance of this Agreement and payment of the
principal of and interest on the Note and all advances now or hereafter made by
Bank to or for the benefit of Borrower under this Agreement, the Mortgage or any
instrument delivered to Bank pursuant to this Agreement or any other evidence of
indebtedness, a security interest in (a) all materials delivered to the site of
the Project but not yet incorporated therein, now owned or hereafter acquired,
(b) all machinery, equipment, fixtures, furnishings, furniture, appliances,
general intangibles, accounts and other personalty of Borrower, now owned or
hereafter acquired, and intended to be incorporated into or used in connection
with construction or completion of the Improvements, (c) all insurance on
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all the foregoing and the proceeds of any sale or exchange of the foregoing in
whole or in part, and (d) all property of Borrower which at any time Bank shall
have or have the right to have in its possession, or which is in transit to it,
including without limitation, any balance or share of any deposit, trust,
agency, escrow or other account with Bank and any amounts which may be owing
from time to time by Bank to Borrower. Borrower hereby also assigns and grants
to Bank a security interest in, and agrees Bank shall have and be able to
exercise, until all amounts payable to Bank under the Note, the Mortgage: or
this Agreement have been paid in full, all of Borrower's right, title and
interest in, to and under all contracts, instruments, documents, licenses,
permits, surveys, approvals and agreements of any kind relating to construction
of the Improvements or marketing, sale, leasing, financing or operation of all
or any part of the Project, now owned or hereafter acquired, and the; proceeds
of any of the foregoing, including without limitation the Plans, the General
Contract, the Architect's Agreement and the Project Permits (as hereinafter
defined) provided that so long as no Event of Default (as hereinafter defined)
shall have occurred and be continuing hereunder, Borrower shall have the
benefits of such right, title and interest, except Borrower shall not terminate,
cancel or amend or suffer or permit the termination, cancellation or amendment
or default or expiration of any assigned instrument without Bank's prior
approval, except for any amendment (i) for which Bank's consent is not otherwise
expressly required by the terms of the Collateral Documents (as hereinafter
defined), (ii) which does not increase the cost of the Project or otherwise
jeopardize or adversely affect the completion or operation of the Project or
Bank's security for the Loan and (iii) of which Bank is given a copy. Borrower
shall continue to be solely liable for all obligations of Borrower under any
assigned instrument and neither Borrower nor any other party thereto shall look
to Bank to pay or perform any of such obligations unless and until Bank shall
have notified such party in writing that Bank has elected to assume such
obligations, and then only to the extent set forth in such assumption. In the
event of foreclosure of the Mortgage, the purchaser at such foreclosure shall
also acquire all of the right, title and interest of Borrower in, to and under
said contracts, instruments, documents, licenses, permits, surveys, approvals
and agreements, but such purchaser shall be liable only for the obligations
expressly assumed by such purchaser. The foregoing constitutes a security
agreement under the Uniform Commercial Code.
For purposes of this Agreement, the term "Collateral" shall
mean the right, title and interest of Bank in the property described in the
Mortgage and the property described in this Section 3, and the term "Collateral
Documents" shall mean such instruments and the Surety and the Completion
Guaranty (each as hereinafter defined).
Borrower will execute or join with Bank in executing such
financing statements and continuation statements under the Uniform Commercial
Code or other applicable law as Bank may specify in order to perfect and
maintain perfection of Bank's security interest in any of the Collateral and
will pay the costs of filing the same in such public offices as Bank may
designate.
5. Conditions Precedent. The obligation of Bank to make the
first advance of the Funds hereunder is subject to the condition precedent that
Bank shall have received (a) each of the items specified in Section 1 of the
General Conditions to the Commitment Letter in form and substance satisfactory
to Bank and Bank's counsel, and (b) the commitment fee specified in Section
5(A)(i) of the Commitment Letter.
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6. Disbursement and Application of Loan Proceeds. So long as
there has occurred no Event of Default or any event or condition which, with the
passage of time or giving of notice or both could become an Event of Default,
Bank shall be obligated to advance the Funds against the Note upon Borrower's
request during the period commencing on the date of this Agreement and ending no
later than the last day of the eighteenth full month thereafter (the
"Construction Period") (as such period may be extended in accordance with
Section 10 of this Agreement), in amounts not in excess of costs which have been
incurred by Borrower for the development of the Project, as verified by Bank,
pursuant to Exhibit C and the Plans and subject to all limitations set forth in
the notes to Exhibit C.
Each request for an advance shall be made by a loan advance
requisition in the form attached hereto as Exhibit D, delineating the Funds to
be drawn against each item listed in Exhibit C (or at Bank's request, against a
more detailed breakdown of items). Each loan advance requisition shall be
accompanied by (a) as Bank may require from time to time, a copy of the AIA form
of requisition to Borrower from the General Contractor; (b) a certificate of
Borrower in the form attached hereto as Exhibit E; (c) an approval by Bank's
inspector of the requested advance; and (d) if requested by Bank, an endorsement
to the Bank's title insurance policy insuring Bank against any loss occasioned
by any liens of record, statutory or otherwise, held by mechanics, workmen,
contractors, suppliers or the employees or agents of any of them with respect to
the Project and that since the issuance of the Bank's Title Insurance Policy or
the last such endorsement, there has been no change in the state of title to the
Property and there have occurred no survey or other exceptions not previously
approved by Bank.
Anything herein to the contrary notwithstanding, (i) advances
of the Funds pursuant to Borrower's request shall be limited to no more than
once every two weeks, except as Bank in its discretion may otherwise permit from
time to time, (ii) each Loan advance requisition shall be for a minimum
aggregate amount of $100,000; and (iii) the aggregate of all advances made by
Bank at any time shall not exceed, in Bank's opinion, the value of work done and
materials physically incorporated into the Improvements or delivered to and
securely stored on the Property.
Sums advanced under the Note from time to time shall be
deposited by Bank into an account of Borrower at Bank, except that upon the
occurrence of an Event of Default, Bank shall have the option of disbursing the
Funds directly to the third parties to whom payments are due for Project costs.
All payments for Project costs made by Borrower shall be made promptly from
accounts at Bank regardless of the source of funds therefor. Bank may require
copies of any or all checks written by Borrower or the General Contractor for
payment of Project costs to be submitted to and approved by Bank prior to
issuance. In no event shall any Funds be used by Borrower for any purpose other
than payment of the costs and expenses shown on Exhibit C without Bank's prior
specific written approval.
Anything herein to the contrary notwithstanding, Bank may from
time to time, at its option, without requests or orders or vouchers from
Borrower, advance Funds against the Note and disburse the same to itself for
payment of interest due and payable under the Note.
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Any Project costs incurred in excess of the respective
budgeted amounts for the items shown on Exhibit C shall be promptly paid by
Borrower from sources other than the Funds. Should it appear at any time that
the balance of the Funds to be advanced against the Note is insufficient, in
Bank's reasonable judgment, to complete the Improvements, Bank may require that
Borrower pay, and Borrower will pay to Bank within 30 days of receipt of notice
from Bank, for disbursement by Bank, an amount equal to the deficiency, as
determined by Bank, and Bank shall not be obligated to make any further advances
of the Funds until such amount is paid to Bank and disbursed for payment of
Project costs. Notwithstanding the foregoing provisions, if the whole amount
allocated to any component of Project cost as set forth on Exhibit C is not, or
in Bank's judgment, will not be expended to complete the work covered by such
component, with Bank's approval, Borrower may request such excess to be
reallocated and used for any other component of Project cost as set forth on
Exhibit C prior to making any deposit required by the previous sentence,
provided that any proposed reallocation of Project cost components included
under the General Contract shall also be approved by the General Contractor.
All conditions to the obligation of Bank to make advances
hereunder are imposed solely and exclusively for the benefit of Bank and its
assigns, and no other person shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to assume that Bank
will make or not make advances in the absence of strict compliance with any or
all thereof, and no other person shall, under any circumstances, be deemed to be
a beneficiary of such conditions, any or all of which may be freely waived in
whole or in part by the Bank at any time if, in its sole discretion, it deems it
advisable to do so. In no event shall any other party be deemed to be a
beneficiary of the Funds that may be advanced to Borrower pursuant to the terms
hereof or have any right to an accounting therefor. Bank shall not in any way or
for any purpose be deemed to be or to become a partner of or a joint venturer or
a member of a joint enterprise with Borrower in connection with the construction
or installation of the Improvements or the ownership, development or operation
of the Project or the Loan contemplated herein.
7. Representations and Warranties. Borrower represents and
warrants that:
(a) Borrower is a corporation duly formed, validly
existing and in good standing under the laws of the State of Delaware, is duly
qualified and in good standing to conduct business in those jurisdictions in
which its ownership of property or the conduct of its business requires such
qualification, and has the requisite power and authority to make and perform its
obligations under this Agreement, the Note and the Collateral Documents and
under all other documents delivered to Bank pursuant hereto and to carry out the
transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this
Agreement and the execution and delivery of the Note and the Collateral
Documents have been duly authorized by all requisite corporate action of
Borrower and will not violate any provision of law or any, judgment, order or
regulation of any court or of any public or governmental agency or authority
applicable to Borrower or the certificate of incorporation or by laws of
Borrower or conflict with or result in a breach of any of the terms, conditions
or provisions of or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
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properties or assets of Borrower pursuant to the terms of any agreement,
indenture or instrument to which Borrower is a party or by which Borrower or any
of its properties are bound.
(c) This Agreement, the Note and the Collateral
Documents when executed and delivered by Borrower will be the legal, valid and
binding obligations of the parties thereto in accordance with their respective
terms.
(d) There is no claim, litigation or governmental
proceeding against Borrower now pending or, to the knowledge of Borrower,
threatened, which is substantial in amount or which, if adversely determined
would have a material adverse effect on the financial condition or business of
Borrower, or would adversely affect the Project or the ability of Borrower to
perform its respective obligations under this Agreement, the Note or the
Collateral Documents, except such as are adequately covered by insurance and
have been disclosed in the financial statements hereinafter referred to or
except such as have been disclosed to Bank in writing.
(e) Borrower has filed all federal, state and local tax
returns required to be filed and has paid all taxes as shown on said returns to
be due.
(f) Borrower has no knowledge of any violation, nor is
there any notice or other record of any violation, of any zoning, subdivision,
environmental, building or other statute, ordinance, regulation, restrictive
covenant or other restriction applicable to the Property or the Project.
(g) The Plans, the Property, the construction thereon
of the Improvements as contemplated by this Agreement, the use of the Property
and the Improvements for the purpose contemplated hereby and the development,
construction and operation of the Project do and shall, in all respects, comply
with, and are lawful, permitted and conforming uses under, all applicable
building, fire, safety, subdivision, zoning, sewer, environmental, securities,
health, insurance and other laws, ordinances, rules, regulations and plan
approval conditions of any governmental or public body or authority and Borrower
has obtained all permits, licenses or approvals from such governmental or public
bodies or authorities which are a necessary precondition to the construction of
the Improvements.
(h) No approval, consent or authorization of, or
registration, declaration or filing with, any governmental or public body or
authority is required in connection with the valid execution, delivery and
performance of this Agreement, the General Contract or the Collateral Documents,
the issuance of the Note or the carrying out by Borrower of the transactions
contemplated hereby, except such as have been or will, prior to the first
advance hereunder, be obtained.
(i) There exist no liens, encumbrances or other charges
against the Property, the Improvements or any property relating thereto other
than the Mortgage and the security interests created hereby or pursuant hereto,
including statutory and other liens of mechanics, workmen, contractors,
subcontractors, suppliers, taxing authorities (other than taxes
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not yet due and payable) and others, except those disclosed to and approved by
Bank (the "Permitted Liens").
(j) All utility services necessary for construction and
operation of the Project, including water supply, storm and sanitary sewer
facilities, gas, electricity and telephone facilities are, or prior to the
Completion Date (as hereinafter defined) will be, available within the
boundaries of the Property.
(k) All roads necessary for the full utilization of the
Property and the Improvements for their intended purposes have either been
completed or the necessary rights-of-way therefor have been acquired by the
appropriate governmental authority or others or have been or will, prior to the
Completion Date, be dedicated to public use and accepted by such governmental
authority, and all necessary steps have been taken by Borrower and all such
governmental authority or others to assure complete construction and
installation thereof by the Completion Date.
(1) The General Contract is in full force and effect
and has not been amended, modified or altered without Bank's written consent,
and Borrower is not in default thereunder, and, to the best knowledge and
information of Borrower, the General Contractor is not in default under the
General Contract, and there are no events, occurrences or conditions which with
the passage of time or the giving of notice or both, would constitute a default
thereunder.
All of the above representations and warranties shall be continuing
and survive the making of this Agreement and the issuance of the Note.
8. Construction of Improvements. Borrower will proceed
diligently to construct the Improvements upon the Property, according to Exhibit
C and the Plans, without delay or stoppage of fifteen working days or more, in a
good and workmanlike manner, employing therefor workmen and materials
satisfactory in quantity and quality to Bank.
9. Completion. The Improvements shall be completed on or before
the date that is eighteen (18) months from the date of this Agreement (the
"Completion Date") and at completion the Property and the Improvements shall be
free of any and all private or governmental charges or claims (filed or not) of
any nature, except for the Mortgage, the 1 security interests created hereby,
other interests granted to Bank and the Permitted Liens. Borrower will deliver
to Bank certified copies of all use, occupancy or completion certificates in
connection with the Project, immediately upon issuance.
As used in this Agreement the terms "complete", "completed" and
"completion" mean, with respect to the Improvements, that:
(a) all Improvements are, in Bank's reasonable
judgment, substantially physically complete in accordance with the Plans;
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(b) Borrower has received all permits, approvals and
certificates required by law prior to the use and occupancy thereof and has
furnished true copies of such permits, approvals and certificates to Bank;
(c) the Property and the Improvements are free of any
and all private or governmental charges, claims or liens (filed or not) of any
nature excepting only the Mortgage, the security interests created hereby or
pursuant hereto, other liens in Bank's favor and Permitted Liens; and
(d) The Project has achieved "breakeven operation". For
purposes of this Agreement, the term "breakeven operation" shall mean that the
Project's "debt service coverage ratio" as defined in Section 4.03 of the
Mortgage is not less than 1.0 to 1. For purposes of this Section 9, the
determination of "breakeven operation" shall be based on Project operating
statements submitted in accordance with Section 11. Further, for purposes of
this Section 9 and Section 10, the determination of "breakeven operation" shall
be made assuming that debt service consists of interest payable on the amount of
the Loan outstanding after the final requisition, at a rate equal to the Fixed
Rate (as defined in the Note) determined on the fifteenth day of the month for
which any operating statement is submitted based on a five (5) year Fixed Rate
Period, and amortizing as provided in the Note.
10. Extensions of Construction Period: Failure to Achieve
Breakeven Operation. Borrower shall have the option of extending the duration of
the Construction Period beyond eighteen months for one (1) additional six (6)
month period upon satisfaction of the following terms and conditions:
(a) Borrower shall give not less than thirty (30) nor
more than sixty (60) days' prior written notice to Bank of Borrower's request to
extend the maturity date of the Note for the additional six month period;
(b) Bank shall have received the commitment fee
specified in Section 5(A)(ii) of the Commitment Letter; and
(c) At and as of the time any such extension is to take
effect
(i) the Project shall not have achieved
breakeven operation;
(ii) there shall have occurred no Event of
Default, or any event or condition which, with the passage of time or
giving of notice or both could become an Event of Default, provided
that if Borrower cures any such event or condition existing at such
time, within the applicable grace period set forth herein, if any, this
condition shall be deemed satisfied as of the date of such cure;
(iii) the costs incurred to date and remaining to
be incurred for the completion of construction of the Improvements are
within the budgeted amounts set forth on Exhibit C; and
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(iv) the amount remaining in the budget category
interest reserve is, in Bank's reasonable judgment, sufficient to cover
the payment of interest during the remaining term of the Construction
Period, as extended.
Notwithstanding anything to the contrary in this Section 10 or
in this Agreement, the Construction Period shall end on the last day of the
month selected by Borrower after the Project achieves breakeven operation, but
not later than the eighteenth month after the execution of this Agreement (or
the twenty-fourth month if the Borrower elects to extend such period in
accordance with this Section 10). On the first day of the month immediately
following the month in which the Construction Period ends, Borrower shall pay to
Bank the commitment fee specified in Section 5(B) of the Commitment Letter.
If the Project fails to achieve breakeven operation by failing
to generate net operating income sufficient to meet the required debt service
coverage ratio, the entire outstanding principal amount of the Note and all
interest accrued thereon shall be due and payable on the last day of the
Construction Period (as it may have been extended), unless Borrower shall
promptly (i) make a prepayment sufficient to reduce projected debt service such
that the required debt service coverage ratio is met (such amount, the
"Shortfall") or (ii) obtain and deliver to Bank a letter of credit in form and
substance acceptable to Bank for a term of twelve (12) months, equal to the
Shortfall, but in no case to exceed $1,000,000, or (iii) provide Bank with some
combination of prepayment and letter of credit in the combined amount of the
Shortfall. If Borrower delivers a letter of credit, Borrower shall either (x)
achieve breakeven operation, or (y) make a prepayment equal to the Shortfall (as
reduced by any prepayment made in accordance with Subsections (i) or (iii)
above). If Borrower has not achieved breakeven operation or made such required
prepayment at least ten (10) days before the expiration of the letter of credit,
Bank may exercise its right to draw on the letter of credit up to the amount of
the Shortfall.
11. Other Construction Obligations and Covenants of Borrower.
(a) Borrower will not, without first obtaining written
approval of Bank, (i) execute any contract, subcontract or purchase order or
permit any subcontract or purchase order to be executed by any person or persons
with whom it has contracted in connection with the Improvements (except for such
contracts, subcontracts or purchase orders that have been executed prior to the
date hereof and that have been approved by Bank) unless the amounts thereof are
within the amounts budgeted therefor as set forth on Exhibit C; or (ii) execute
any amendment or modification to the Plans, the General Contract or any contract
the effect of which would be either to increase or decrease the amount to be
paid by or on behalf of Borrower under any contract except as permitted by
Section 12 of this Agreement.
(b) Borrower will not, without Bank's prior written
consent, contract for any services, work or materials if such are not required
by the Plans or if payment therefor is required to be made regardless of the
nondelivery or nonfurnishing of such materials or services or work.
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(c) Borrower will forward to Bank promptly after
receipt, copies of all notices, permits or other documents (excepting only
notices for non-delinquent taxes due) received by Borrower from any governmental
authority relating to the Property or the Improvements or from any person
claiming a mechanic's or materialmen's lien against the Property or the Project.
(d) Prior to making final payment under any contract
relating to construction of the Improvements, Borrower will, upon Bank's written
request, require the contractor thereon to deliver to Borrower, from such
contractor and all of such contractor's subcontractors or materialmen, a general
release of mechanics' and materialmen's liens and Borrower will promptly deliver
to Bank copies of all such releases so obtained, certified by Borrower to be
true and correct.
(e) Beginning no later than the first month following
the opening of the Facility, Borrower shall submit, no later than twenty (20)
days after the end of each month, an operating statement for the Project,
detailing, inter alia, the number of beds occupied and the actual net operating
income (as defined in the Mortgage) of the Project in the preceding month. At
the expiration of the Construction Period, and provided there exists no Event of
Default (as defined in the Mortgage) or condition which, with the passage of
time, the giving of notice or both would become an Event of Default, Borrower
shall have no further obligation to submit such operating statements.
12. Change Orders. Borrower will not permit, without the prior
written consent of Bank, the performance of any work pursuant to any amendment
or modification of the Plans, the General Contract or any subcontract or
purchase order (any such amendment or modification being hereinafter called a
"Change Order") which (a) would impair the Project, (b) would result in an
increase or decrease in excess of $10,000 in the aggregate of the contract
prices for the construction of the Improvements or (c) when aggregated with
other Change Orders theretofore effected, would result in an increase or
decrease in excess of $50,000 in the aggregate of the contract prices for the
construction of the Improvements.
13. Inspections. Borrower will permit and assist Bank or Bank's
representatives to make inspections of the Property and the Improvements and
Borrower's books and records relating thereto at such time or times as Bank may
reasonably request. Borrower agrees to pay Bank an inspection fee of $500.00 for
each site visitation conducted by Bank or its representative until the principal
of and interest on the Note have been paid in full, provided that such visits at
Borrower's expense shall not be conducted more frequently than once in
connection with each request for an advance of Funds except when Borrower
requests and Bank agrees to more than one advance of the Funds per calendar
month and during such periods as an Event of Default shall have occurred and be
continuing. If upon any such inspection, Bank in writing condemns as unsound or
improper and not in substantial compliance with the Plans, any portion of the
Improvements or any materials used or to be used therein, Borrower will within
24 hours commence to remove from the Property or the Improvements (as the case
may be) all condemned materials, and will take down and replace (or, at Bank's
option, repair) any portion of the Improvements so condemned.
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14. No Representation by Inspections. Bank's inspections are
solely for the protection of Bank's security and no action or inaction by Bank
shall constitute any representation that the Improvements comply with the Plans
or that the Improvements are sound or free from defects in material, design or
workmanship or that Bank approves thereof.
15. Compliance With Contracts. Borrower will comply with all
requirements and satisfy all conditions of all contracts, bonds or insurance
which insure or relate to all or any part of this Agreement, the Property, the
Improvements or Borrower. The foregoing includes without limitation compliance
with all the terms and satisfaction of all the conditions of the General
Contract. In the event of a failure by Borrower to comply with any of such terms
or satisfy any of such conditions, Bank may undertake such compliance or
satisfaction on Borrower's behalf and any sums expended by Bank in connection
therewith shall be deemed advances hereunder against the Note and secured by the
Collateral Documents.
16. Compliance With All Laws. Borrower will comply with all laws
applicable to Borrower or the Property or the Improvements, including without
limitation zoning and use laws and building restrictions and regulations.
17. Proof of Title. Borrower will deliver to Bank, upon demand,
any contracts, bills of sale, statements, receipted vouchers or agreements under
which Borrower claims title to any materials, fixtures, equipment, machinery,
appliances, furniture, furnishings or other personal property incorporated in
the Improvements or subject to the lien of the Mortgage or included in the
Collateral.
18. Warrant of Attorney. Borrower hereby irrevocably appoints
Bank as attorney-in-fact to do in Borrower's stead all things believed by Bank
reasonably necessary to effect performance of this Agreement, including without
limitation filing notices in public records and endorsing checks or drafts
payable to Borrower and Bank jointly. The foregoing appointment is coupled with
an interest and is solely for protection of Bank's security and, therefore, is
not intended to confer any right of action on any third party.
19. Indemnity. Borrower hereby indemnifies Bank and agrees to
hold Bank harmless from any loss, expense or damage on account of anything
arising out of or in connection with this Agreement, the Note, the Collateral
Documents, the Property, the Improvements or any of the documents and
instruments delivered to Bank in compliance with this Agreement unless caused
solely by the Bank's gross negligence or willful misconduct. This indemnity
shall survive the completion of the Improvements and payment of the Note.
20. Defaults. The occurrence of an "Event of Default" as defined
in the Mortgage shall constitute an event of default hereunder and under the
Note and the Collateral Documents.
21. Cross Default and Cross Collateralization. The Loan and the
Mortgage are cross defaulted and cross collateralized with loans given or being
given from Bank to (a) Borrower (the "East Hempfield Loan"), (b)
ALS-WovenHearts, Inc. (the "Bristol Loan"), (c) ALS-WovenHearts, Inc. (the
"Chambersburg Loan"), and (d) ALS-Wynwood, Inc. (the "New
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Castle Loan") (the East Hempfield Loan, the Bristol Loan, the Chambersburg Loan
and the New Castle Loan are hereinafter collectively referred to as the "Other
Loans") so that an Event of Default (as defined in the Mortgage) under this Loan
or the Other Loans shall constitute an Event of Default under this Loan and all
of the Other Loans, and the mortgaged property for each of this Loan and the
Other Loans shall secure this Loan and all of the Other Loans.
22. Notices. Any notice, demand or request under this Agreement
shall be made in accordance with Section 6.03 of the Mortgage.
23. Severability. If any provision hereof or of the Note is
found by a court of competent jurisdiction to be prohibited or unenforceable, it
shall be ineffective only to the extent of such prohibition or unenforceability,
and such prohibition or unenforceability shall not invalidate the balance of
such provision to the extent it is not prohibited or unenforceable, nor
invalidate the other provisions hereof.
24. Third Parties. This Agreement shall be binding upon and
inure to the benefit of Bank and Borrower and their respective successors and
assigns. Borrower may not, without the prior written consent of Bank, assign any
of its rights or obligations under this Agreement. The parties intend that no
other person or entity is to have any claim or any interest under this
Agreement, and no other person or entity is to have any right of action hereon
or hereunder.
25. Complete Agreement. Taken together with the Note, the
Collateral Documents and the other instruments, contracts and documents
delivered in compliance herewith, this Agreement is a complete memorandum of the
agreement of Borrower and Bank. Waivers or modifications of any provision hereof
must be in writing signed by the party to be charged with the effect thereof.
26. Governing Law. Except to the extent applicable law may
require otherwise, this Agreement shall be construed in accordance with and
governed by the substantive laws of the Commonwealth of Pennsylvania.
27. Waiver of Jury Trial. Borrower and Bank hereby waive the
right to trial by jury in any action arising hereunder.
28. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
29. Miscellaneous. The captions preceding the text of the
Sections of this Agreement are for convenience of reference and shall not
constitute a part of this Agreement, nor shall they in any way affect its
meaning, construction or effect. Unless the context clearly indicates a contrary
intent:
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(a) The term "Borrower" shall mean the person oar persons
specifically named herein as "Borrower" and their respective heirs, executors,
administrators, successors and assigns;
(b) The term "Bank" shall mean the person specifically
named herein as "Bank" or any successor to or assignee of its rights hereunder
and under the Note;
(c) The word "person" shall mean individual,
corporation, partnership, joint venture or unincorporated association;
(d) The use of any gender shall include all genders;
(e) The singular number shall include the plural and
the plural the singular as the context may require;
(f) If Borrower is more than one person, all
agreements, conditions, covenants, provisions, stipulations, warrants of
attorney, authorizations, waivers, releases, options, undertakings, indemnities,
rights and benefits made or given by Borrower shall be joint and several and
shall legally bind and affect all persons who are defined as "Borrower" as fully
as though all of them were specifically named herein wherever the term
"Borrower" is used, and each of them shall be deemed to have made the
representations and warranties of herein set forth.
[THE REMAINDER OF THIS PAGE INTENTIONALLY OMITTED]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
BORROWER:
ALS-CLARE BRIDGE, INC., a
Delaware corporation
By: /s/ Thomas E. Komula
-----------------------------------
Name: Thomas E. Komula
-----------------------------------
Title: Vice President
-----------------------------------
BANK:
SOVEREIGN BANK
By: /s/ William J. Mattern
-----------------------------------
Name: William J. Mattern
-----------------------------------
Title: Assistant Vice President
-----------------------------------
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EXHIBITS
A - Legal Description of Property
B - List of Plans
C - Statement of Sources and Application of Funds
D - Loan Advance Requisition Form
E - Loan Advance Certificate