CONSTRUCTION AGENCY AGREEMENT
This CONSTRUCTION AGENCY AGREEMENT (the Agreement),
dated as of August 1, 1995, is made by and between ▇▇▇▇▇▇▇
AND COMPANY, a New York corporation (Agent) and First
Fidelity Bank, National Association, a national banking
association, not in its individual capacity but solely as
trustee pursuant to a Trust Agreement 1995-1 dated as of
July 1, 1995 (the Owner).
ARTICLE I
PRELIMINARY STATEMENT
The Owner is the fee owner of the Land and desires to
appoint Agent as its agent with the sole and exclusive
right and obligation to undertake construction and
development of the Improvements on the Land. The Agent
desires to design and construct the Improvements on the
Land, as agent for Owner. Except as otherwise provided in
this Agreement, Development Costs necessary for the
acquisition of the Land and the design and construction of
the Improvements will be paid for from a combination of
funds from the Agent and the Owner. In order to obtain
funds to pay for a portion of the Development Costs as and
to the extent shown on the Project Budget, the Owner will
(i) enter into the Construction Loan in an amount not to
exceed $36,575,000 with the Construction Lender and will
execute and deliver the Construction Loan Documents and
(ii) provide the Owner's Equity in an amount not to exceed
$1,925,000. The Beneficiary will fund the Owner's Equity
from the proceeds of the Investor Loan being made to
Beneficiary by the Construction Lender. In order to
further secure repayment of the Construction Loan, the
Owner will mortgage and assign to the Construction Lender
its interests in this Agreement and the Lease. To the
extent additional funds are needed for Development Costs in
excess of those shown on the Project Budget (or are not
available under the Construction Loan as a result of the
failure to satisfy the conditions for advances thereunder),
Agent shall solely be responsible for provision of all such
additional funds.
ARTICLE II
DEFINED TERMS
Unless the context otherwise requires and except as
specifically provided herein, each of the capitalized terms
used in this Agreement shall have the meanings set forth in
the Definitions Appendix attached to this Agreement, as the
same may be amended, modified or supplemented from time to
time.
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ARTICLE III
AGENCY
3.1 Appointment. Solely and for the limited
purposes hereinafter set forth, Owner hereby designates
Agent as its agent, and Agent hereby accepts such
appointment, to design and construct the Improvements,
strictly in accordance with the terms and conditions of
this Agreement, the Construction Loan Documents, the
Investor Loan Documents and the other Transaction
Documents, to advance funds for the same as provided
herein, both prior to and after the Closing Date, and
otherwise to perform or cause to be performed the work
necessary or appropriate to complete the Improvements.
Agent shall have no authority to act for or on behalf of
Owner except with respect to the construction and
installation of the Improvements and except with respect to
making requests for Advances under the Construction Loan
Agreement as provided therein, all as set forth and limited
in more detail below. Agent shall cause any agreement,
contract, purchase order or other writing entered into by
Agent purporting to be binding upon Owner to provide that
(i) the Owner's liability thereunder is nonrecourse, except
as to the Leased Property and (ii) Agent, individually,
shall have primary liability thereunder. The authority
and, except as specifically provided herein, the obligation
of Agent hereunder shall terminate on the earliest to occur
of (i) final completion of the Improvements (including all
punchlist items) in accordance with the terms and
conditions of this Agreement, the Construction Loan
Documents, and to the satisfaction of the Construction
Consultant or (ii) the termination of Agent's authority
pursuant to Section 12.2 hereof following occurrence of an
Event of Default. The termination of Agent's authority
hereunder shall not discharge Agent or limit in any way
Agent's liability hereunder with respect to obligations
arising out of this Agreement and Agent's performance
hereunder on or prior to the date of such termination of
Agent's authority, including, without limitation, with
respect to Agent's indemnification of the Indemnified
Parties pursuant to Section 10.20.
3.2 Performance of and Payment for Costs of the
Improvements. On the Closing Date, the Owner shall
acquire the Land pursuant to the P&S and use the Owner's
Acquisition Equity and the proceeds of a draw on the
Construction Loan to pay the purchase price thereof. Agent
shall undertake to construct the Improvements in accordance
with the provisions of this Agreement including, without
limitation, the provisions of Article X and, subject to the
provisions hereof shall pay all amounts required to
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construct the Improvements in accordance with the Plans and
Specifications. Pursuant to Article IV, Agent shall pay
for Development Costs (other than for the portion of the
purchase price of the Land paid for from the Owner s
Acquisition Equity) using (a) the proceeds of Advances to
Owner under the Construction Loan, up to $36,575,000, and
(b) Agent's own funds to the extent required to complete
the Improvements in accordance with the Plans and
Specifications and the other Transaction Documents. Owner
shall not be liable to Agent for failure or delay in any
aspect of the performance of the work necessary to
construct the Improvements in accordance with the Plans and
Specifications. Each request by Agent to Owner or to the
Construction Lender for an advance of funds shall be deemed
to be (i) a conclusive acknowledgement and admission by
Agent, individually, that such aspect of the Work, and all
prior aspects of the Work are fully and completely
acceptable to Agent for all purposes; and (ii) a
representation and warranty by Agent that the Work covered
thereby and by all other prior requisitions has been done
and completed in full accordance with the Approved
Construction Documents and the applicable requirements of
the Transaction Documents, provided, however, any such
deemed acknowledgement, admission, representation and
warranty shall be made for the sole and exclusive benefit
of Owner, the Construction Lender and the LC Issuer and no
other third party shall have any rights to rely upon such
acknowledgement, admission, representation and warranty.
3.3 Reports. No later than the 10th day of each
month prior to the later of (i) the date upon which a
Certificate of Occupancy is issued with respect to the
Improvements, or (ii) the Final Completion Date, Agent
shall provide a written report to the Owner, Construction
Lender and LC Issuer setting forth in detail (a) all
expenditures made or incurred on account of Development
Costs for the Improvements during the previous month, (b)
the total Development Costs as of the last day of the
previous month, and (c) a construction status report.
Additionally, Agent shall provide to the Owner, the
Construction Lender and LC Issuer such additional reports
and information as the Owner, the Construction Lender or LC
Issuer may reasonably request from time to time relating to
the transactions contemplated hereby. The Agent shall also
certify to the Owner, Construction Lender and LC Issuer the
aggregate total of all Development Costs incurred through
the Final Completion Date.
3.4 Recovery on Contractor Warranties. Subject to
the rights of the Construction Lender, so long as no Event
of Default has occurred, Agent shall, at its cost and
expense, in the name and on behalf of the Owner,
negotiate, accept and prosecute any claim for damages,
compensation or other recoveries due from any contractors
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or subcontractors based on a breach of contract or breach
of warranty (whether express or implied) and shall be apply
any proceeds received on account of such collection efforts
to the construction, repair or renovation of the
Improvements. If an Event of Default has occurred and is
continuing, Owner is hereby expressly and irrevocably
authorized, but not required, to exercise every right,
option, power or authority inuring to Agent it has against
any contractor or subcontractor. Unless either the
Lessee's Parent is not then Investment Grade or an Event of
Default has occurred and is continuing, the Agent shall be
entitled to receive directly all such amounts paid or
payable with respect to such claims, subject to the rights
of the Lender and less any costs and expenses incurred by
Owner or Lender in connection with exercise of their powers
to enforce Agent's rights against contractors and
subcontractors, and Agent shall apply such amounts to the
construction, repair and renovation of the Improvements.
If the conditions set forth in the preceding sentence
relating to Agent's receipt of amounts paid or payable from
contractors or subcontractors have not been satisfied or
waived by Owner in writing, Owner shall be entitled to
receive such amounts and Owner may apply such proceeds to
the construction, repair of the Improvements or apply such
amounts to pay Agent's obligations hereunder or under the
Lease.
ARTICLE IV
OWNER'S ADVANCES AND REIMBURSEMENTS
4.1 Owner's Obligations. Subject to the terms and
conditions of this Agreement and the Construction Loan
Documents, including satisfaction of the applicable
conditions set forth in Article VII hereof, Owner agrees to
make available to the Agent for payment of Development
Costs incurred in connection with the Improvements the
proceeds of the Construction Loan in a manner consistent
with the terms of this Agreement. Owner shall make such
payments solely from the sources of funds described in
Section 3.2. To the extent the proceeds of the
Construction Loan are insufficient or are delayed or
otherwise not available to pay the Development Costs, Agent
agrees to pay any and all additional Development Costs from
its own funds as necessary to complete the Improvements in
accordance with the Plans and Specifications in accordance
with the Project Schedule provided, however, that if Agent
pays additional Development Costs from its own funds, it
shall be entitled to receive reimbursement from a drawing
made on the Construction Loan if and to the extent the
terms and conditions to the making of a Loan Advance for
such purpose (as defined in Section 6.1 of the Construction
Loan Agreement) have been met under the Construction Loan
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Agreement. Nothing contained in this Agreement shall in any
way obligate Owner to pay any debt or meet any financial
obligation under this Agreement or otherwise with respect
to the Development Costs, except from monies actually
received by Owner from the sources specified in Section
3.2.
4.2 Advances of Owner's Funds. Subject to the terms
and conditions of the Construction Loan Documents and of
this Agreement and so long as no Default has occurred and
is continuing and no Event of Default has occurred, Owner
shall make or cause to be made payments in accordance with
the provisions of this Agreement on account of Development
Costs (each such payment referred to herein as an Advance
or as Advances ). Advances shall be made upon Agent's
written request for an advance given to the Construction
Lender in accordance with the provisions of the
Construction Loan Documents, subject to the satisfaction of
all conditions set forth in Article VII hereof. Each
request for an Advance on account of Development Costs
shall be in the form required under the Construction Loan
Documents. Agent shall submit all requests for any Advance
and related materials directly to the Construction Lender,
with a simultaneous copy to Owner, and Agent's requests for
Advances hereunder shall serve as the written requests for
advances contemplated by the Construction Loan Documents.
As long as no Default has occurred and is continuing and no
Event of Default has occurred, Owner shall have no right or
authority to submit any request for an Advance unless such
Advance is necessary, in the Owner's sole judgment, to
provide funds to preserve and protect the Leased Property
or is required to provide funds in response to an emergency
affecting the Leased Property.
ARTICLE V
LEASE AGREEMENT
Owner has leased the Land to the Agent pursuant to the
Lease of even date herewith. The Lease is a net lease, and
Agent shall be responsible in its individual capacity as
Lessee under the Lease as and to the extent set forth
therein, for all expenses associated with the use and
occupancy of the Leased Property.
ARTICLE VI
CLOSING
Subject to compliance with the provisions of this
Agreement, the Closing of the Transactions (other than the
closing of the Long-Term Loan) shall take place on the
Closing Date at the offices of Brown, Rudnick, Freed &
Gesmer, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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Upon the Closing Date, the Agent shall pay BFC and BFS all
of their respective fees and expenses which Agent has
agreed to pay at such Closing. The Closing contemplated
above is expressly conditioned upon the concurrent closing
of all of the Transactions which by the terms of the
Transaction Documents are to close concurrently prior to
the payment by Owner of any Development Costs.
ARTICLE VII
CONDITIONS OF OWNER'S OBLIGATIONS
7.1 Conditions to the Closing. The obligation of
Owner to consummate the Closing are subject to (a) the
accuracy and correctness in all material respects of the
representations and warranties of Agent contained in this
Agreement, (b) the accuracy and correctness in all material
respects of the representations and warranties of Agent
contained in the Lease and the Construction Loan Documents
and in any other document or certificate delivered pursuant
to this Agreement or pursuant to the Lease or Construction
Loan Documents, and (c) the closing on or before the
Closing Date of the transactions contemplated by the Lease
and the Construction Loan Documents and the satisfaction of
all other conditions precedent contained therein to the
obligations of the Owner or the Construction Lender, as the
case may be.
7.2 Conditions to Advances. Owner's obligation to
make any Advance shall be subject to satisfaction of all of
the following conditions as of the date of the requested
Advance:
(a) No Defaults. No Default of Agent shall have
occurred and be continuing and no Event of Default shall
have occurred.
(b) No Adverse Change. No material adverse
change in Agent's financial condition shall have occurred
since April 30, 1995, or since the last Advance, that could
in the Owner's sole judgment, impair the ability of Agent
to fulfill its payment and performance obligations under
this Agreement, the Lease, the Construction Loan Documents
and any other Transaction Documents to which Agent is a
party.
(c) Request for Advances. The Construction
Lender shall have received a written request for an advance
under the Construction Loan from Agent which request shall
comply with all requirements of the Construction Loan
Documents.
(d) Conditions in the Construction Loan
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Documents. Agent, on behalf of the Owner, shall have
satisfied all applicable conditions set forth in the
Construction Loan Documents to the advances of proceeds of
the Construction Loan. Agent agrees to deliver all written
requests for an advance under the Construction Loan
directly to the Construction Lender, with a simultaneous
copy to Owner, and to take all other commercially
reasonable actions that are within Agent's control to
satisfy the conditions set forth herein and in the
Construction Loan Documents with respect to advances to be
made thereunder.
(e) Taxes. All taxes, fees and other charges in
connection with the execution, delivery, recording, filing
and registration of this Agreement, the Lease, the
Construction Loan Documents, the Investor Loan Documents,
the LC Documents and all the other documents and agreements
contemplated hereby and thereby shall have been paid.
Owner shall have received from Agent evidence (shown on the
survey and the title insurance commitment) that the Land is
either separately assessed or separately assessable for
real estate tax purposes and legally subdivided under local
law. If the Land is not separately assessed, Agent agrees
to pay real estate taxes and assessments when due with
respect to the entire tax parcel.
(f) Status of Title. Prior to the Closing Date,
fee simple title to the Land shall have been conveyed to
the Owner, free and clear of all Liens and other exceptions
to title, except for Permitted Liens.
(g) Title Insurance. Owner shall have received
a policy of owner's title insurance with respect to the
land issued by the Title Insurance Company on its standard
form and in a form approved by Owner, dated the Closing
Date, which policy or commitment and all reinsurance
agreements shall be satisfactory to Owner in form,
substance and amount.
(h) Survey. Owner shall have received a copy of
a survey of the Land, satisfactory in form and substance to
the Owner and certified to the Owner no earlier than sixty
(60) days prior to the Closing Date, by an independent
survey licensed in the State of New Jersey.
(i) Opinions of Counsel. Owner shall have
received from ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, special counsel to
Owner, from local counsel selected by Owner, from Crummy,
Del Deo, Dolan, Griffinger & Vechione, counsel to Agent, or
in each case, other counsel reasonably satisfactory to
Owner, opinions substantially in the form approved by Owner
prior to the Closing Date. Each such opinion shall be
dated the Closing Date and addressed to Owner, Beneficiary,
Construction Lender and LC Issuer.
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(j) Legal Restrictions. Owner shall not be
prohibited or restricted by law from engaging in the
transactions contemplated hereby or in the Transaction
Documents on the Closing Date. The transactions
contemplated hereby or under the Lease on the terms and
conditions herein or therein shall not violate any
applicable law or governmental regulation and shall not
subject Owner, the Beneficiary, ▇▇▇▇▇▇, ▇▇ Issuer or the
Construction Lender to any tax, penalty, liability or other
onerous condition under or pursuant to any applicable law
or governmental regulation.
(k) Environmental Report. No later than thirty
(30) days prior to the Closing Date, Owner and Construction
Lender shall have received a copy of the environmental
assessment of the Land, addressed to Owner, Construction
Lender, the Beneficiary and LC Issuer or accompanied by a
letter permitting such parties to rely thereon performed by
an engineer satisfactory to Owner. The scope of such
environmental assessment shall be satisfactory to Owner and
Construction Lender and shall meet all the terms and
conditions required under the Construction Loan Documents
and Section 20(e) of the Lease. If such environmental
assessment reveals the need for additional review or
remediation, Agent shall provide such additional
environmental assessments as are required by Owner and any
remediation recommended therein to be performed shall have
been performed.
(l) Evidence of Insurance. Owner shall have
received a Certificate in the form of Exhibit B hereto
relating to the insurance required herein and under the
Lease, together with all original or certified copies of
policies of insurance evidencing such compliance or if such
original or certified copies of policies of insurance are
not issued as of the Closing Date, then such original or
certified copies of policies of insurance shall be
delivered to Owner promptly after receipt thereof by
Lessee.
(m) Appraisal. No later than thirty (30) days
prior to the Closing Date, Owner shall have received an
appraisal of the Land performed by an appraiser, addressed
to Owner, the Beneficiary and Construction Lender or
accompanied by a letter permitting such parties to rely
thereon. Such appraisals shall certify the cost of the
Land and shall indicate an estimated fair market value and
useful life of the Leased Property as of the Basic Term
Commencement Date and annually at the end of years 3
through 12 of the Term of the Lease, as extended by any
Extension Lease Terms, assuming construction of the
Improvements and other Improvements thereon in accordance
with the Final Plans and Specifications.
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(n) Proceedings and Documents. All opinions,
certificates and other instruments required hereunder, the
Lease, the Construction Loan Documents, the Investor Loan
Documents or any related document or agreement, and all
proceedings in connection with the transactions
contemplated hereby or thereby with respect to the Closing
Date shall be satisfactory in form and substance to the
Owner. Owner shall have received copies of all instruments
and other evidence as Owner may reasonably request, in form
and substance satisfactory to Owner, with respect to such
transactions and the taking of all corporate proceedings in
connection therewith.
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS OF AGENT
Agent warrants and represents to Owner for the express
purpose of inducing the Owner to enter this Agreement that
as of the Closing Date and upon the date of each Advance
and thereafter until the Final Completion Date, except as
to those representations and warranties which by their
nature are not recurring, as follows:
8.1 Organization and Power. Agent (a) is a
corporation duly organized, validly existing and in good
standing under the laws of the State of New York and is
duly qualified as a foreign corporation and in good
standing in the State of New Jersey and in all other
jurisdictions in which failure to be so qualified would
have a material adverse effect on Agent's ability to
perform its customary business operations and Agent agrees
to maintain its corporate existence and all such
qualifications; and (b) executed the Construction Loan
Documents, this Agreement and all other Transaction
Documents to be entered into by Agent pursuant to adequate
corporate power, authority and legal right to carry on its
business as now conducted and to execute, deliver and
perform this Agreement, the Construction Loan Documents and
all other Transaction Documents to which it is a party.
8.2 Full Disclosure. No written statement delivered
to Owner by Agent in connection with the negotiation of the
transactions contemplated hereby or contained in this
Agreement, the Construction Loan Documents and all other
Transaction Documents to which it is a party contains any
untrue statement of a material fact or omits a material
fact necessary to make the statements contained therein or
herein not misleading in any material respect.
8.3 Litigation. There is no action, suit or
proceeding pending, or to the best of Agent's knowledge
threatened, against or affecting Agent at law or in equity
before any court, or by or before any federal, state,
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municipal or other governmental department, commission,
board, bureau, agency, or instrumentality or arbitrator
which if adversely determined (i) individually or in the
aggregate could materially and adversely affect the
performance by Agent of its obligations under this
Agreement, the Construction Loan Documents and all other
agreements and documents contemplated thereunder to which
it is a party or the business and operations of Agent,
taken as a whole or (ii) could affect in any materially
adverse respect the consummation or validity of the this
Agreement, the Construction Loan Documents and all other
Transaction Documents to which it is a party, or the
transactions contemplated thereby.
8.4 Financial Information. All of the consolidated
financial statements of Lessee s Parent delivered to the
Owner, (a) fairly present in all material respects the
financial condition of Lessee s Parent on a consolidated
basis on the dates for which, and the results of its
operations for the periods for which, the same have been
furnished, and (b) have been prepared in accordance with
generally accepted accounting principles consistently
followed throughout the periods covered thereby except as
otherwise noted thereon. There has been no material
adverse change in the condition of Agent, financial or
otherwise, since April 30, 1995.
8.5 No Defaults. No Default has occurred and is
continuing and no Event of Default has occurred under this
Agreement, the Construction Loan Documents and all other
agreements and documents contemplated thereunder to which
it is a party. Agent is not in default in the payment of
the principal or interest on any indebtedness for borrowed
money or for its deferred purchase of property, in either
event in an amount in excess of $2 million, or in default
beyond any applicable notice and grace period under any
instrument or agreement under and subject to which any such
indebtedness has been issued or under any lease, in any
case involving the likelihood of any actions or proceedings
against it which will materially and adversely affect the
Agent's ability to perform under this Agreement, the
Construction Loan Documents and all other Transaction
Documents to which it is a party.
8.6 No Violation. Neither the execution, delivery or
performance by Agent of this Agreement, the Construction
Loan Documents and all other Transaction Documents to which
it is a party to be delivered by Agent nor compliance by
Agent herewith or therewith (a) conflicts or will conflict
with or results or will result in a breach of or
constitutes or will constitute a default under (i) any
applicable law in effect as of the date of delivery of this
Agreement or (ii) any applicable order, writ, injunction or
decree of any court or other governmental authority, or (b)
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results or will result in the creation or imposition of any
lien, charge or encumbrance upon its property pursuant to
such agreement or instrument other than those created
pursuant to this Agreement, the Construction Loan Documents
and the other Transaction Documents. Neither the
execution, delivery or performance by the Agent of this
Agreement, the Construction Loan Documents and all other
Transaction Documents to which it is a party nor compliance
by Agent herewith or therewith conflicts or will conflict
with or results or will result in a breach of or
constitutes or will constitute a default under (i) the
certificate of incorporation or bylaws of Agent or (ii) any
agreement or instrument to which Agent is a party or by
which it is bound.
8.7 Agreements Are Legal and Authorized. This
Agreement, the Lease, the Construction Loan Documents and
all other Transaction Documents to which it is a party have
been duly authorized by Agent by all necessary corporate
action (including any necessary action by its shareholders)
and duly executed and delivered by it, and, assuming the
due authorization, execution and delivery thereof by the
other parties thereto, are legal, valid and binding
obligations of Agent enforceable against it in accordance
with their respective terms.
8.8 Insurance. All insurance required by the Lease
and the Construction Loan Documents is in effect and all
premiums now due and payable in respect of such insurance
have been paid for a period of no less than 12 months from
the Closing Date.
8.9 Consents. No consent, license, approval,
certificate, permit or authorization of, or filing,
registration or declaration with, or exemption or other
action by, any governmental or public body, authority,
bureau or agency (including courts) under the laws of the
United States of America, the State of New York or the
State of New Jersey is required in connection with (i) the
execution and delivery or performance by Agent of this
Agreement, the Construction Loan Documents and all other
Transaction Documents to which it is a party, (ii) the
performance of the Work in accordance with this Agreement,
and (iii) the construction, use and occupancy of the
Improvements which has not been obtained with all rights of
appeal having elapsed except for such as, by their nature,
cannot be obtained until a future date and which will be
obtained in the ordinary course on a timely basis.
8.10 Compliance; Taxes. Agent will use and occupy the
Leased Property for the purposes contemplated by the Lease.
There has been no change since January 12, 1995 to the
soils condition or any other condition of the Land which
would materially and adversely affect the intended
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construction and operation of the Improvements in
accordance with the Plans and Specifications, nor are any
condemnation or eminent domain proceedings pending, or to
Agent's knowledge, threatened with respect thereto. Agent
is not in default in the payment of any taxes levied or
assessed against the Land or otherwise related to the
transactions contemplated hereunder or under the
Construction Loan Documents and all other Transaction
Documents. Agent has filed and will file all federal,
state and local tax returns when and as the same were due,
and has paid and will pay the taxes shown as payable
thereon, subject to such taxes that Agent may, in good
faith, be protesting.
8.11 Use of Owner Advances. Agent shall use all Owner
Advances provided to it solely for the Development Costs,
as agent of Owner, in accordance with the terms and
conditions of this Agreement or to reimburse the Agent for
any Development Costs previously paid for by Agent from its
own funds, provided that such reimbursement is approved by
Owner.
8.12 Use. The Permitted Liens do not interfere with
Agent's intended use of the Land.
8.13 ERISA. No accumulated funding deficiency (as
defined in section 302 of ERISA and section 412 of the
Code), whether or not waived, exists with respect to any
Plan (other than a Multiemployer Plan). No liability under
Title IV of ERISA has been or is expected by Agent or any
ERISA Affiliate to be incurred with respect to any Plan
(other than a Multiemployer Plan) by Agent or any ERISA
Affiliate which is or would be materially adverse to the
business, condition (financial or otherwise) or operations
of Agent. Neither Agent nor any ERISA Affiliate has
incurred or presently expects to incur any withdrawal
liability under Title IV of ERISA with respect to any
Multiemployer Plan which is or would be materially adverse
to the business, condition (financial or otherwise) or
operations of Agent. Agent is not entering into this
Agreement, the Construction Loan Documents and all other
Transaction Documents to which it is a party or
transactions contemplated hereby or thereby, directly or
indirectly, in connection with any arrangement in any way
involving any asset of any employee benefit plan or related
trust with respect to which it is a party-in-interest, all
within the meaning of ERISA and the Code.
8.14 Location of Office and Equipment. Agent's
corporate headquarters is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Agent's office and principal place
of business in the State of New Jersey is located at ▇
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇. Any portion of
the Improvements constituting fixtures, furniture equipment
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or personal property will be kept in the State of New
Jersey. Agent will notify Owner promptly of any change in
any of the information set forth in this Section 8.13.
8.15 Brokers. Other than ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ of New
Jersey, Inc., Agent has not retained any broker, finder or
financial advisor in connection with the transactions
contemplated hereunder or under the Lease or the
Construction Loan Documents. The only commission payable
to ▇▇▇▇▇▇▇ & Wakefield of New Jersey, Inc. is set forth on
the Project Budget.
8.16 No Archaeological Encumbrances. The Land does
not include any cemetery, Indian burial ground or village,
or any other matter of archaeological significance that
would require the notification or consent of any state,
local or federal agency or any third party (including,
without limitation, any agency of the State of New Jersey)
in connection with any excavation or construction thereon.
8.17 Representations of Agent, as Lessee. All of the
representations and warranties of Agent, as Lessee under
the Lease, are true and correct.
ARTICLE IX
FINANCING
9.1 Financing. Owner will enter into the
Construction Loan Documents and the Beneficiary will enter
into the Investor Loan Documents in order to obtain
financing for the Owner's Advances. Agent acknowledges
that Owner will assign its rights hereunder to the
Construction Lender pursuant to the Construction Loan
Documents and agrees that it shall perform hereunder for
the benefit of the Construction Lender in accordance with
the Construction Loan Documents. Agent shall also, in
connection with the Closing and in connection with the
performance of the Work and Advances to Owner pursuant to
the Construction Loan Documents, deliver such documents,
certificates and opinions as the Construction Lender shall
request.
9.2 Long-Term Loan. The Agent, individually, shall
take all action which is required to cause a Long-Term Loan
to be made to provide take-out financing for the
Construction Loan no later than the date on which the
conditions precedent set forth in Section 4(a) of the Lease
are required to be satisfied on terms which are in form and
substance satisfactory to Owner and LC Issuer and which are
not inconsistent with the terms of the Lease, this
Agreement and the other Transaction Documents. Agent,
individually, agrees to deliver any such documents,
certificates and opinions which the Long-Term Lender shall
reasonably request in connection therewith.
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ARTICLE X
PERFORMANCE OF THE WORK
As agent of Owner, using Owner's Advances and other
funds as set forth in Section 3.2 hereof, Agent shall
construct and install the Improvements on the Land in
accordance with the following:
10.1 Scope of Work. Agent shall construct and install
the Improvements and otherwise perform the Work
substantially in accordance with the Approved Construction
Documents, as the same may be modified from time to time
upon written approval of Owner and Construction Lender.
With respect to such construction, Agent shall furnish the
materials and perform the work described in the Plans and
Specifications.
10.2 Agency Status. As described in Section 3.2
hereof, Agent shall use Owner Advances and, subject to the
terms and conditions of this Agreement, its own funds, to
perform or cause to be performed the Work as agent for
Owner. Prior to or concurrently with the incurrence of any
obligation to any contractor or vendor, Agent shall give
written notice to each such contractor and vendor that all
payments made by Agent to each such contractor and vendor
with respect to the Work are or will be made on behalf of
Owner.
10.3 Performance of Work. Agent shall be solely
responsible for all means, methods and techniques in the
performance of the Work and shall perform the Work or cause
the Work to be performed in accordance with the provisions
of this Article X. Agent shall promptly remedy damage or
loss to any property referred to herein howsoever caused
and shall use its commercially reasonable best efforts to
cause any contractor, any subcontractor, any vendor, or
anyone directly or indirectly employed by any of them, or
by anyone for whose acts any of them is liable, to remedy
any damage or loss to any property referred to herein
caused by any of them. Agent shall be exclusively
responsible for the performance of all of Owner's
construction obligations under the Construction Loan
Documents.
10.4 Permits. Agent shall obtain and pay for any and
all permits and bonds required to be obtained before
commencement of the Work (except for the Listed Permits,
which must be obtained and paid for before the absence of
any such Listed Permits would materially delay the
commencement, continuance or completion of the development
or construction of the Improvements) and for all other
permits, governmental fees, sales taxes and use taxes,
licenses and inspections necessary for the proper execution
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and completion of the Work as and when the same are
required to be obtained.
10.5 Indemnification for Acts of Workers. Pursuant
to Section 10.20 hereof, Agent shall be responsible to the
Indemnified Parties for, defend, and shall hold the
Indemnified Parties harmless from and against, the acts and
omissions of its employees, contractors and subcontractors,
their respective agents and employees and any other persons
performing any of the Work.
10.6 Compliance with Laws. Agent shall perform the
work or cause the work to be performed in accordance in all
material respects with all Legal Requirements which have
been enacted as of the date of this Agreement and which are
or will become applicable to the Work including, without
limitation, all building laws, health codes, safety rules,
handicapped access, zoning and subdivision laws and
regulations, and applicable state and federal Environmental
Legal Requirements and shall give all notices applicable
thereto, and when completed, all buildings, structures,
site improvements and the like that are part of the Leased
Property shall be wholly within applicable building
restriction lines and will not violate applicable use or
other restrictions, whether established in prior
conveyances, zoning laws, governmental regulations or
otherwise.
10.7 Waste Removal. During and upon the completion of
the Work, Agent shall remove or cause to be removed all of
its waste materials and rubbish from and about the Land.
All such removal shall at all times be conducted and
carried out in full compliance with applicable
Environmental Legal Requirements.
10.8 [Intentionally Omitted].
10.9 Labor. Agent and its contractors may employ
open shop or union labor for performance of the Work. If
Agent or any contractor uses union labor, Agent shall
comply, or cause such contractor to comply with all union
contract requirements, including, without limitation, shop
stewards, if required.
10.10 Books and Records. Agent shall at all times
during the performance of the Work keep and maintain
accurate books, records and accounts showing all materials
ordered and received and all disbursements and accounts
payable in connection with performance of the Work.
10.11 Hazardous Materials. (a) If, in the course
of the Work, Agent discovers Hazardous Materials or
underground storage tanks that are not included in the Work
pursuant to the Final Plans and Specifications, and which
15
are not maintained in accordance with all applicable
Environmental Legal Requirements, Agent shall stop and
cause the General Contractor to stop the Work and shall
notify Owner promptly. Agent shall not remove such
Hazardous Materials without Owner's written approval. All
Hazardous Materials that may be discovered shall be
maintained, removed, transported and disposed of by
qualified contractors in accordance with all applicable
state and federal Environmental Legal Requirements and in
accordance with the applicable provisions of the Lease.
(b) The Agent shall not permit any violation of any
Environmental Legal Requirements to exist with respect to
the Leased Property. The Agent shall not use all or any
portion of the Leased Property for the storage, treatment,
use or disposal of any substance for which a license or
permit is required by state, federal or local Environmental
Legal Requirements and for which no such license or permit
has been obtained. Without limitation express or implied,
unless caused by the gross negligence or willful misconduct
of Owner or of any employee or agent of Owner (other than
Agent), Agent shall pay all sums and take all such actions
as may be required to avoid or discharge the imposition of
any lien on the Leased Property under any Environmental
Legal Requirement, and the Agent shall indemnify and save
harmless the Owner from any and all loss, claims,
liabilities and expenses (including attorney's and expert
fees) incurred or suffered by Owner by virtue of the
provisions of any Environmental Legal Requirement now or
hereinafter in effect or by virtue of the failure of Agent
to comply with any Environmental Legal Requirement in
connection with the presence of any Hazardous Materials on
the Leased Property in violation of such Environmental
Legal Requirements.
10.12 Underground Utilities. The existence of
underground utilities shall be so identified in the field
by Agent or its contractor before starting work or as they
are discovered during the performance of the Work.
Pursuant to Section 10.20, Agent shall hold the Indemnified
Parties harmless from and against damage to any utilities
and damage resulting therefrom.
10.13 Verification of Boundaries. All dimensions
of the Improvements and boundary lines shown in the survey
of the Land and set forth in the deed to the Owner are to
be field checked and verified and any material error or
inconsistencies are to be communicated to Owner before
commencing the Work. Agent shall be responsible for and
shall hold Owner harmless from and against any costs or
damages arising from its failure to do so.
10.14 Inspection Rights. Agent shall allow Owner,
the Construction Lender, the Construction Consultant and LC
16
Issuer and their various representatives to enter the
Leased Property upon prior written notice and during normal
business hours, which notice shall not be required in the
event of an emergency, for the purpose of inspecting the
progress of the Work and examining all books, accounts,
plans, drawings and records with respect thereto.
10.15 Completion Date. (a) Agent shall cause the
Improvements and all portions of the Work associated
therewith to be Substantially Complete by January 31, 1997,
provided, however, if an act or event of Force Majeure
occurs which prevents Lessee from completing the
Improvements by January 31, 1997, Lessee shall be entitled
to an extension beyond January 31, 1997 in which to
complete the Improvements, such extension not to extend
beyond the earlier to occur of July 31, 1997 or the number
of days which the act or event of Force Majeure delayed
completion of the Improvements ( Substantial Completion
Date ).
(b) All punchlist items shall be completed and
a final certificate of occupancy (if required by applicable
law) obtained with respect to the Improvements (the
completion of such punchlist items and the issuance of a
final certificate of occupancy, if required, is referred to
as Final Completion ), within 45 days after the
Substantial Completion Date ( Final Completion Date ),
provided, however, that if such punchlist items cannot
reasonably be completed within said 45-day period, Owner,
in its discretion, may grant an extension of such period to
permit the completion of such punchlist items. No Change
Order shall be deemed to extend the Completion Date or the
Final Completion Date, nor shall the implementation of any
change order constitute evidence of any party's consent to
such extension, unless Owner and Agent have expressly
agreed that the Completion Date or Final Completion Date is
so extended.
10.16 Change Orders. Agent may not order changes
in the Work which are Significant without the prior
approval of the Construction Consultant. The Owner and
Agent shall be provided with a written description of all
changes to the Work not less frequently than monthly. The
term Significant shall mean: any change or changes which
individually increases the contract sum by more than
$20,000 in any instance or $100,000 in the aggregate.
10.17 Owner's Representative. Owner's consents,
approvals or instructions may be given only by an
authorized representative ( Authorized Representative ) of
Owner designated in writing to Agent by Owner pursuant to
the terms hereof.
10.18 [Intentionally Omitted].
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10.19 Independent Contractor Status. Agent
recognizes that despite its designation as Owner's agent
hereunder, it is engaged as an independent contractor
hereunder and acknowledges that Owner shall not have any
responsibility to provide any benefits normally associated
with employee status. Agent, in accordance with its status
as an independent contractor, covenants and agrees that it
will conduct itself in a manner consistent with such
status, that it will neither hold itself out as, nor claim
to be an officer, director, partner, beneficial owner or
employee of Owner by reason hereof, and that it shall not
by reason hereof make any claim, demand or application to
or for any right or privilege applicable to an officer,
director, partner, beneficial owner or employee of Owner.
10.20 Indemnification. As between Owner and Agent
and between any other Indemnified Party and Agent, Agent,
individually, hereby assumes all liability for its
services, the acquisition and ownership of the Land by the
Owner, the design, construction and operation of the Leased
Property and any other Work to be performed hereunder
including payment of all fees for permits, studies and
variances, whether performed by Agent, by any vendor or any
other entity performing the Work directly or indirectly for
or under Agent or any vendor and shall defend (with counsel
reasonably approved by Owner) and hold harmless the
Indemnified Parties from any and all out-of-pocket losses,
damages, costs, expenses, liabilities, fines, penalties,
suits and causes of action but, including, without
limitation, all reasonable attorneys' fees, court costs and
any other costs of litigation (the foregoing are referred
to as Losses ) related to (i) this Agreement and any other
Transaction Documents, (ii) any of the Transactions, (iii)
patent or latent defects in the Leased Property or any
portion thereof, (iv) the Approved Construction Documents
and any other agreements with contractors, subcontractors,
architects or other providers of materials or services, (v)
any activity undertaken on the Leased Property by any
Person (vi) any of Agent's other actions or omissions,
whether for itself or as agent on behalf of Owner
hereunder, or (vii) ownership of the Leased Property by the
Owner, except that, with respect to any Indemnified Party,
the foregoing indemnities shall not apply to the following:
(i) losses, damages, injuries, costs or
expenses solely and directly caused by the gross
negligence or willful misconduct of such
Indemnified Party;
(ii) the inaccuracy in any material respect of
any representation and warranty made by such
Indemnified Party in any of the Transaction
Documents;
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(iii) the creation or existence of an Owner Lien
attributable to such Indemnified Party;
(iv) if such Indemnified Party is the Owner,
Construction Lender or the Beneficiary, the
voluntary disposition of the Leased Property or
the Lease, other than in connection with (A) a
voluntary disposition permitted after the
occurrence of an Event of Default, (B) an Owner
Conveyance, (C) the voluntary assignment by the
Beneficiary of its ownership interest under the
Trust Agreement, or (D) a subsequent transfer by
the Lender or any nominee, designee or affiliate
thereof if such entity purchases or acquires the
Leased Property by foreclosure, deed in lieu of
foreclosure or otherwise; and
(v) acts or events that occur after the
Indemnification Period.
Under no circumstances shall Owner or any Indemnified Party
be liable for any actions taken or not taken by Owner with
Agent's written consent. Any negligence on the part of
Agent, its directors, officers, agents or employees shall
not be attributed to any Indemnified Party. In any and all
claims against any Indemnified Party by any employee of
Agent, any contractor, any subcontractor, any vendor,
anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable, the
indemnification obligation under this Section shall not be
limited in any way by any limitation on the amount or type
of damages, compensation or benefits payable by or for
Agent or any subcontractor under workers' compensation
acts, disability benefit acts or other employee benefit
acts. The indemnification obligation under this Section
shall be in addition to and not in abrogation of that
contained in Section 10.11(b) hereof covering certain
environmental matters or the indemnification obligations
set forth in the Lease.
Agent shall promptly remedy damage or loss to the
Leased Property caused in whole or in part by Agent, any
contractor, subcontractor or any Person directly or
indirectly employed by any of them, or by any Person for
whose acts any of them is liable and/or which Agent is
responsible hereunder.
10.21 Removal of Liens. If any notices of
contract, statements of claim with respect to unpaid costs
for the performance of the Work or mechanics' or
materialmen's liens (collectively, Mechanics' Liens ) are
filed against the Leased Property, or any portion thereof,
by any vendor or agent of Agent or any employee, contractor
or subcontractor with respect to the Work, Agent agrees to
19
cause such Mechanic's Lien to be removed or bonded against
at its sole cost and expense as and to the extent provided
in the Construction Loan Documents and Agent's failure to
do so shall constitute an Event of Default under this
Agreement.
10.22 Correction of Work. Agent warrants to Owner
that all materials shall be new and of good quality and all
Work shall be of good and workmanlike quality, free from
faults and defects and in conformance with the requirements
of the Plans and Specifications and as set forth in this
Agreement. Agent shall, at its sole cost and expense,
promptly correct all of the Work not in conformance with
the Plans and Specifications and this Agreement and
requested by Owner whether observed before or after the
Basic Term Commencement Date, provided Owner serves written
notice of the existence of such nonconformance within one
year after the Basic Term Commencement Date. This
obligation shall survive termination of this Agreement for
the one-year period described above. Agent shall remove,
in a manner which at all times complies with all applicable
Environmental Legal Requirements, from the Leased Property
all portions of the Work which are defective or
nonconforming and which have not been corrected under this
Section unless removal is waived by Owner in writing.
Nothing contained in this Section shall be construed to
establish a period of limitation with respect to any other
obligation of Agent under this Agreement.
10.23 Notice of Delay. Agent shall give the
Construction Lender and Lenders' Construction Consultant
prompt written notice of interruption of the performance of
the Work due to Force Majeure or otherwise that may
interfere with its ability to complete the Improvements in
accordance with the Project Schedule.
10.24 Insurance; Condemnation and Casualty. Agent
shall obtain or cause its contractors to obtain policies of
liability insurance, builders' risk insurance and all-risk
insurance with respect to the Work and workers'
compensation insurance (the foregoing collectively, the
Insurance ) to be issued in respect of the Work in amounts
required by the Construction Loan Documents and the Lease
or as prescribed by the Owner from time to time. Agent
shall cause to be maintained throughout the prosecution of
the Work, through its contractors or otherwise, insurance
affording substantially the same benefits to Owner and the
Construction Lender as those required under the
Construction Loan Documents.
If at any time the Leased Property, or any portion
thereof, is subject to a Casualty or Taking, the provisions
of Section 14 of the Construction Loan Agreement and, to
20
the extent not inconsistent with Section 14 of the
Construction Loan Agreement, Section 15 of the Lease shall
apply.
10.25 Conditions of Completion. On or before the
Substantial Completion Date, as a condition precedent to
consideration of the Improvements as being Substantially
Complete and as a condition to the commencement of the
Basic Term Commencement Date, Agent shall deliver or cause
to be delivered to the Construction Lender and Owner all of
the following items and on or before the Final Completion
Date, as a condition precedent to consideration of the
Improvements being Substantially Complete and as a
condition of satisfaction of Agent's obligations under
Section 10.15(b) of this Agreement, Agent shall deliver or
cause to be delivered to the Construction Lender all of the
following items, all of which must be satisfactory in form
and substance to Owner in its sole discretion:
(a) Final lien waivers with respect to the
Leased Property from any contractor or subcontractor
performing construction or installation services
establishing that all work and labor performed and
materials furnished through the Completion Date or the
Final Completion Date, as the case may be, have been paid
for in full, or a bond or other assurance of payment with
respect thereto.
(b) An endorsement to the Construction Lender's
and Owner's title insurance policies delivered pursuant to
the Construction Loan Documents, the Investor Loan
Documents and the Lease confirming the respective amounts
of coverage thereunder and that such amount is insured with
no exceptions other than those reflected on such title
policy as originally delivered to the Construction Lender
and Owner or other immaterial exceptions acceptable to the
Construction Lender and Owner in its reasonable discretion.
(c) An as-built survey plan of the Leased
Property, certified to the Owner and the Construction
Lender, no earlier than 30 days prior to the Final
Completion Date, as the case may be, by an independent
surveyor licensed in New Jersey, and, if available, as-
built plans and specifications for the Improvements and
other Improvements upon the Land.
(d) All approvals in connection with the Work
required of municipal or other governmental authorities
having jurisdiction over the Leased Property.
(e) A certificate of all Development Costs and
Project Costs as of the Completion Date or the Final
Completion Date, as the case may be, certified by the
treasurer or chief financial officer of Agent, and
21
confirmed and approved by the Construction Consultant.
(f) A certificate of the officer of Agent who
has been given the primary responsibility for the
management of the construction and financing of the
Improvements that the Improvements have been constructed
substantially in accordance with the Final Plans and
Specifications with only those Change Orders approved by
the Construction Consultant, to the extent required, and
consented to in writing by the Construction Lender and
Owner, to the extent required.
(g) An updated post-construction environmental
assessment of the Leased Property confirming that the
Leased Property, after the construction of the
Improvements, is in compliance with all Environmental Legal
Requirements. Such report shall be prepared by the
independent environmental engineer who prepared the report
delivered at the Closing Date and shall be prepared at the
Agent's sole expense. If such environmental assessment, as
updated, recommends or reveals the need for additional
review or remediation of the Leased Property, Agent, at its
sole expense, will provide such additional environmental
assessments or remediation as are required by the Owner or
the Construction Lender. The results of the environmental
assessment shall be satisfactory to the Owner and the
Construction Lender.
10.26 Appraisal. The Owner may obtain an
appraisal of the Leased Property which includes the related
Improvements as built, which appraisal in Owner s sole
discretion may be a bring-down of the appraisal delivered
to Owner prior to the Closing Date performed by the
original appraiser or a new full scope appraisal conducted
by a separate independent appraiser. The Owner may require
such appraisal as a condition precedent to considering the
Improvements Substantially Complete. Such appraisal shall
permit the Owner and Construction Lender to rely thereon
and shall be reasonably acceptable in form and substance to
Owner and Construction Lender. Such appraisal shall
indicate an estimated fair market value and useful life of
the Leased Property (i) on the Basic Term Commencement
Date, and (ii) annually at the end of each of the years 3
through 12 of the Term of the Lease, as extended by any
Extension Lease Terms, in each case which value and useful
life are reasonably acceptable to the Owner. The cost of
the bring-down appraisal or new appraisal shall be borne
by Agent and shall be paid by Agent on demand from Owner.
ARTICLE XI
FAILURE TO COMPLETE
22
If the Improvements are not Substantially Complete on
or before the Substantial Completion Date or Finally
Completed on or before the Final Completion Date for any
reason whatsoever, then the same shall constitute an Event
of Default hereunder.
ARTICLE XII
DEFAULTS AND REMEDIES
12.1 Events of Default. Any of the following shall
constitute an Event of Default by Agent under this
Agreement:
(a) If Agent defaults in making payment of any
amounts payable hereunder when the same shall become due
and payable; or
(b) If, as of the time when the same shall have
been made, any representation or warranty of Agent set
forth herein or in any consent, notice, certificate,
demand, request or other instrument delivered by or on
behalf of Agent in connection with or pursuant to this
Agreement or the transactions contemplated hereby shall
prove to have been incorrect or misleading in any material
respect when made; or
(c) If the Improvements are not Substantially
Complete on or prior to the Substantial Completion Date or
Finally Completed on or prior to the Final Completion Date;
or
(d) If Agent shall fail to cause any individual
Mechanic's Lien to be removed or bonded in accordance with
Section 10.21 within 60 days after the filing thereof
unless the same is being contested by Agent pursuant to the
Lease, or Agent shall fail to maintain the insurance
required by Section 10.24; or
(e) If Agent defaults in the performance in any
other covenant, agreement, or obligation on the part of
Agent to be performed under this Agreement and such default
continues for a period of thirty (30) days after notice
thereof from Owner; or
(f) An Event of Default, as defined in the
Lease, shall have occurred and be continuing beyond the
applicable grace periods set forth therein, if any; or
(g) An Event of Default, as defined in any of
the Construction Loan Documents or any other Transaction
Document by Agent shall have occurred and be continuing
beyond the applicable grace periods set forth therein, if
any; or
23
(h) Agent shall cease construction of the
Improvements for a period of forty-five (45) consecutive
days (except as may be caused by Force Majeure) or as may
otherwise be permitted in the Construction Loan Documents.
12.2 Remedies. After the occurrence of any Event of
Default hereunder, subject to the Owner's assignment of
this Agreement to the Construction Lender, Owner shall have
all rights and remedies available at law and in equity and
without limiting the generality of the foregoing, may elect
to exercise any or all of the following remedies which
shall be cumulative and not exclusive:
(a) Terminate Agent's authority and all of
Agent's rights and privileges under this Agreement;
(b) Exercise all rights and remedies under any
or all of the Lease, the Construction Loan Documents, the
Investor Loan Documents and all other agreements and
documents contemplated thereunder to which Agent is a
party;
(c) Demand immediate payment of all sums due
hereunder together with interest thereon at the Default
Rate until paid;
(d) Recover from Agent all out-of-pocket and
other damages and expenses that Owner may have sustained
by reason of the Event of Default, including, without
limitation, reasonable attorneys' fees and expenses, which
damages and expenses shall be paid by Agent as they are
incurred by Owner, together with interest thereon at the
Default Rate until paid; and
(e) At the option of Owner exercised at any time
(which option shall be exercisable by the Construction
Lender pursuant to the Construction Loan Documents), Owner
forthwith shall be entitled to recover from Agent, in
addition to any other proper claims, the aggregate amount
of all Project Costs, and all other fees and expenses then
due from Agent under the Transaction Documents.
12.3 Costs of Enforcement. If an action shall be
brought by Owner for the enforcement of any provision of
this Agreement, Agent shall pay to Owner all costs and
other expenses that may become payable as a result thereof,
including, without limitation, reasonable attorneys' fees
and expenses. If Owner or any of the other Indemnified
Parties or any agent of any of them shall, without fault on
its part, be made a party defendant to any litigation
commenced against Agent, Owner or any of the other
Indemnified Parties arising out of any of the transactions
contemplated by this Agreement or the Transaction
Documents, Agent shall pay all costs and reasonable
24
attorneys' fees and expenses incurred or paid by Owner,
such Indemnified Parties or their agents in connection with
such litigation.
12.4 Cumulative Remedies. No right or remedy herein
conferred upon or reserved to Owner is intended to be
exclusive of any other right or remedy and every right and
remedy shall be cumulative and in addition to any other
legal or equitable right or remedy given hereunder, or at
any time existing. The failure of Owner to insist upon the
strict performance of any provision or to exercise any
option, right, power or remedy contained in this Agreement
shall not be construed as a waiver or a relinquishment
thereof for the future.
ARTICLE XIII
MISCELLANEOUS
13.1 Governing Law. This Agreement shall be deemed an
instrument executed under seal and shall be construed and
enforced in accordance with, and governed by, the laws of
the State of New Jersey. In connection with this Agreement
and the transactions contemplated by the Lease, the
Construction Loan Documents and all other agreements and
documents contemplated thereunder, Agent hereby agrees to
nonexclusive personal jurisdiction and venue in the state
courts of the State of New Jersey, and the United States
District Court for the District of New Jersey. AGENT
HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY WITH RESPECT TO
ANY DISPUTE ARISING BETWEEN OWNER AND AGENT RELATING TO THE
SUBJECT MATTER HEREOF.
13.2 Notices; Modification; Waiver. All
notifications, notices, demands, requests and other
communications herein provided for or made pursuant hereto
shall be in writing and shall be sent by reputable
overnight delivery service and the giving of such
communication shall be deemed complete on the immediately
succeeding Business Day after the same is deposited with
such delivery service: (a) if to Owner, addressed to such
party at First Fidelity Bank, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Corporate Trust, (b) if to Agent, addressed to such party
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ or at such
other address as Owner or Agent shall have specified to the
others in writing, and, except as otherwise set forth
above, such notifications, notices, demands, requests or
other communications shall be deemed given on the date of
receipt.
This Agreement may not be modified or discharged
except by an instrument in writing executed by Owner and
Agent and consented to by the Construction Lender. No
requirement hereof may be waived at any time except by an
25
instrument in writing signed by the party against whom such
waiver is sought, nor shall any waiver be deemed a waiver
of any subsequent breach or default by either party.
13.3 Illegal Provision. If any provision herein
contained shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been
contained herein.
13.4 Binding Effect. The covenants, conditions and
agreements herein contained shall bind, and the benefits
and advantages shall inure to, the respective heirs,
executors, administrators, successors and assigns of the
parties hereto. With respect to provisions in this
Agreement that by their terms are expressly for the benefit
of the Construction Lender, Equity Lender or any other of
the Indemnified Parties, such Persons shall be third party
beneficiaries of this Agreement. Whenever used, the
singular shall include the plural, the plural include the
singular and the use of any gender shall include all
genders.
13.5 Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed
to be an original but all of which shall constitute one and
the same instrument.
13.6 Headings. The Table of Contents preceding this
Agreement and the headings to the various sections of this
Agreement have been inserted for the convenience of
reference only and shall not limit or otherwise affect any
of the terms hereof.
13.7 Reproduction of Documents. This Agreement and
all documents relating thereto (except any notes or other
evidence of indebtedness), including, without limitation,
(a) consents, waivers and modifications which may hereafter
be executed, (b) documents delivered at any closing, and
(c) financial statements and other information previously
or hereafter furnished to either party, may be reproduced
by any reliable photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar
process, and such party may destroy any original document
so reproduced. Agent and Owner each stipulate that any
such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative
proceeding (whether or not the original is in existence and
whether or not such reproduction was made by such party in
the regular course of business) and that any enlargement,
facsimile or further reproduction of such reproduction
shall otherwise be admissible in evidence.
26
13.8 Time of Essence. Time is of the essence of this
Agreement.
13.9 Limitation on Liability. Notwithstanding
anything contained herein to the contrary, this Agreement
is a trust obligation of the Owner and no recourse under or
upon any obligation, covenant, or agreement contained
herein, or for any claim based hereon or in respect hereto,
shall be had against any past, present or future trustee,
officer, employee, agent, or beneficiary, as such, of
Owner, whether by virtue of any constitution, statute, or
rule of law, by the enforcement of any assignment or
penalty, or otherwise. All such liability and claims
against such persons are expressly waived by Agent as a
condition of, and in consideration for, the execution and
delivery hereof. All of the representations, warranties
and covenants of Agent hereunder are intended to be
personal representations, warranties and covenants of
▇▇▇▇▇▇▇ and Company.
13.10 Maximum Interest Payable. To the extent
that any sum due hereunder is construed as interest under
applicable law, this Agreement shall not require the
payment or permit the collection of interest in excess of
the maximum permitted by law. If any excess of interest in
such respect is provided for herein or shall be adjudicated
to be so provided for, neither Owner nor its successors or
assigns shall be obligated to pay such interest in excess
of the maximum amount not prohibited by law, and the right
to demand the payment of any such excess shall be and
hereby is waived; and this provision shall control any
other provision of this Agreement.
Executed as a sealed instrument as of the 1st day of
August, 1995.
AGENT: ▇▇▇▇▇▇▇ AND COMPANY
________________________ By______________________
Witness
________________________
Witness
OWNER: FIRST FIDELITY BANK,
NATIONAL ASSOCIATION,
not in its individual
capacity but solely as
Trustee under Trust
Agreement 1995-1 dated
as of July 1, 1995
_______________________ By_____________________
Witness Name:
Title:
____________________________
Witness
27
