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EXHIBIT 10.35
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CONSTRUCTION LOAN AGREEMENT
BETWEEN
INTROGEN THERAPEUTICS, INC.
AND
COMPASS BANK
Dated as of July 24, 2000
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TABLE OF CONTENTS
Page
SECTION 1 - DEFINITIONS ...................................................... 1
1.1 Definitions ................................................ 1
1.2 Accounting Terms ........................................... 11
1.3 Other Terms ................................................ 11
1.4 References ................................................. 11
1.5 Sections ................................................... 11
1.6 Number and Gender .......................................... 12
1.7 Incorporation of Exhibits .................................. 12
1.8 Certain Other Matters of Construction ...................... 12
SECTION 2 - CONDITIONS ....................................................... 12
2.1 Conditions Precedent to the Initial Advance ................ 12
2.2 Conditions Precedent to Future Advances .................... 14
2.3 Conditions to Final Advance for Retainage .................. 16
SECTION 3 - THE CONSTRUCTION LOAN ............................................ 18
3.1 General Information and Purpose ............................ 18
3.2 Commitment to Lend ......................................... 19
3.3 Payments ................................................... 19
3.4 Draw Request ............................................... 19
3.5 Additional Equity Requirement .............................. 20
3.6 Construction Advances ...................................... 20
3.7 Direct Advances ............................................ 20
3.8 Conditions and Waivers ..................................... 21
3.9 Funding .................................................... 21
3.10 Budget ..................................................... 21
3.11 Execution of M.D. ▇▇▇▇▇▇▇▇ Lease ........................... 22
3.12 Tenant Payment ............................................. 22
SECTION 4 - REPRESENTATIONS AND WARRANTIES ................................... 22
4.1 Representations and Warranties of Borrower ................. 22
SECTION 5 - AFFIRMATIVE COVENANTS ............................................ 26
5.1 Covenants of Borrower ...................................... 26
SECTION 6 - NEGATIVE COVENANTS ............................................... 30
6.1 Negative Covenants of Borrower ............................. 30
SECTION 7 - EVENTS OF DEFAULT ................................................ 32
7.1 Events of Default .......................................... 32
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SECTION 8 - RIGHTS AND REMEDIES OF LENDER .................................36
8.1 Remedies ........................................................36
8.2 Attorney-in-Fact ................................................37
SECTION 9 - MISCELLANEOUS .................................................38
9.1 Other Loans .....................................................38
9.2 No Duty or Special Relationship .................................39
9.3 Other Remedies Not Required .....................................39
9.4 NO CONTROL BY LENDER ............................................39
9.5 No Partnership ..................................................39
9.6 Representations and Warranties ..................................39
9.7 Notice ..........................................................40
9.8 Assignments of Contracts and Plans ..............................40
9.9 Binding Effect ..................................................41
9.10 Inconsistencies and Conflicts ...................................41
9.11 Renewal of Indebtedness .........................................41
9.12 No Waiver .......................................................41
9.13 APPLICABLE LAW ..................................................41
9.14 Amendment .......................................................42
9.15 Future Advances .................................................42
9.16 Severability ....................................................42
9.17 Lender's Discretion .............................................42
9.18 Entire Agreement ................................................42
9.19 Counterparts ....................................................42
9.20 Controlling Agreement ...........................................42
9.21 Business Loans ..................................................43
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CONSTRUCTION LOAN AGREEMENT
THIS CONSTRUCTION LOAN AGREEMENT (this "AGREEMENT") is made and
entered into as of this 24th day of July, 2000, by and between INTROGEN
THERAPEUTICS, INC., a Delaware corporation ("BORROWER"), and COMPASS BANK, an
Alabama state chartered bank ("LENDER").
WITNESSETH:
In consideration of the mutual covenants and agreements herein
contained, Lender and Borrower agree as follows:
SECTION 1 - DEFINITIONS
1.1 Definitions. In addition to the defined terms set forth elsewhere
herein, the following terms shall have the meanings set forth below:
"AFFILIATE" shall mean (a) a corporation the majority of whose
outstanding shares are owned (individually or collectively) by (i)
Borrower, (ii) any Person identified in this paragraph, (iii) any
Subsidiary of Borrower or any Person identified in this paragraph, (iv)
the parent corporation of Borrower, or (v) any Subsidiary of Borrower's
parent corporation, (b) any joint venture in which Borrower or any
Person identified in this paragraph is a joint venturer, (c) any
general or limited partnership in which Borrower or any Person
identified in this paragraph is a general partner, (d) any limited
liability company or limited liability partnership in which Borrower or
any Person identified in this paragraph is a member or partner, (e) any
shareholder who owns more than ten percent (10%) of the outstanding
common stock of Borrower or any other Person identified in this
Paragraph, (f) any employee, officer, or director of Borrower or any
other Person identified in this Paragraph, and (g) any blood relation
of any living Person identified in this Paragraph.
"AGGREGATE COST" shall have the meaning assigned to such term in
Section 3.10.
"AUTHORIZATION LETTER" shall mean the letter dated June 22, 2000, from
Borrower to Tenant, together with all prior letters referenced therein,
and all supplements, replacements, amendments thereof (but only to the
extent that any such supplement, replacement, or amendment is approved
in writing by Lender).
"AUTHORIZED OFFICER" shall mean, as to any Person, any officer of such
Person who is duly authorized by the board of directors, or its
equivalent, of such Person to execute the Loan Documents or any other
documents
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or certificates to be executed by such ▇▇▇▇▇▇ hereunder in connection
with this Agreement (and the transactions described herein).
"BORROWER" and "LENDER" shall mean the parties identified above.
"BUDGET" shall mean the budget and cost itemization for the Project, in
form and substance satisfactory to Lender, and provided pursuant to
Section 2.1 (a)(vii).
"BUSINESS DAY" shall mean a day, other than Saturday or Sunday, when
Lender is open for conducting all of its normal business activities.
"COMPLIANCE CERTIFICATE" shall mean that certain report in the form of
Exhibit "C" attached hereto and made a part hereof for all purposes.
"CONSTRUCTION LOAN" shall mean the loan by Lender to Borrower, in the
maximum amount of up to $3,500,000.00, but not to exceed, in the
aggregate, the payment of the costs incident to the Improved Premises
as specified in the Budget, as may be modified, renewed, rearranged,
increased, and extended from time to time.
"CONTRACTOR" shall mean ▇.▇. ▇▇▇▇▇▇ Construction Company, Inc., and
all other original contractors engaged by Borrower from time to time in
connection with the Project.
"CONVERSION DATE" shall mean the earlier to occur of (a) March 1,
2001, or (b) the later to occur of (i) November 30, 2000, or (ii) the
date of the execution and delivery of the M.D. ▇▇▇▇▇▇▇▇ Lease by
Tenant.
"DEBT" shall mean (a) all items of indebtedness or liability (other
than the debt of an Affiliate, capital, surplus, deferred credits and
reserves, as such) which in accordance with GAAP would be included in
determining total liabilities as shown on the liability side of a
balance sheet as of the date as of which indebtedness is to be
determined, (b) indebtedness or other liabilities secured by any
mortgage, security agreement, pledge, or lien existing on or
encumbering property owned by Borrower, whether or not the
indebtedness or other liabilities secured thereby shall have been
assumed by Borrower, and (c) all indebtedness of any Person (i) which
Borrower has directly or indirectly guaranteed, endorsed (otherwise
than for collection or deposit in the ordinary course of business),
discounted with recourse, agreed (contingently or otherwise) to
purchase or repurchase or otherwise acquire, (ii) in respect of which
Borrower has agreed to supply or advance funds (whether by way of loan,
purchase of securities or capital contribution, through a commitment to
pay for property or services regardless of the non-delivery of such
property or the
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non-furnishing of such services or otherwise), or (iii) in respect of
which Borrower has otherwise become directly or indirectly liable,
contingently or otherwise, whether now existing or hereafter arising.
"DEFAULT" shall mean any of the events specified in Section 7 of this
Agreement, whether or not any requirement for the giving of notice or
lapse of time or other condition precedent has been satisfied.
"DRAW REQUEST" shall have the meaning assigned to such term in Section
3.4.
"ENVIRONMENTAL COMPLAINT" shall mean any written or oral complaint,
order, directive, claim, citation, notice of environmental report or
investigation, or other notice by any Governmental Authority or any
other Person with respect to (a) air emissions, (b) spills, releases,
or discharges to soils, any improvements located thereon, surface
water, groundwater, or the sewer, septic, waste treatment, storage, or
disposal systems servicing any of the Property, (c) solid or liquid
waste disposal, (d) the use, generation, storage, transportation, or
disposal of any Hazardous Substance, or (e) other environmental,
health, or safety matters affecting any of the Property or the business
conducted thereon.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, from time to time, and the rules and regulations
promulgated thereunder and the interpretations thereof.
"EXCUSABLE DELAYS" shall mean unusually adverse weather conditions
which have not been taken into account in the construction schedule,
fire, earthquake or other acts of God, strike, lockout, acts of public
enemy, riot, or insurrection or any unforeseen circumstances or events
(except financial circumstances or events or matters which may be
resolved by the payment of money) beyond the control of Borrower, not
to exceed a total of ten (10) days, provided Borrower shall notify
Lender in writing within five (5) days after such occurrence, but no
Excusable Delay shall extend the Conversion Date or suspend or ▇▇▇▇▇
any obligation of Borrower or any other person to pay any money under
this Agreement and the other Loan Documents.
"EVENT OF DEFAULT" shall mean any of the events specified in Section 7
of this Agreement, provided that any applicable requirements
specifically provided for in Section 7 for notice, lapse of time, or
otherwise have been satisfied.
"FINANCIAL STATEMENTS" shall initially mean the financial statements of
Borrower, Guarantor, and Tenant, which have been delivered to Lender
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as a condition precedent to Lender's obligations under and pursuant to
this Agreement.
"GAAP" shall mean generally accepted accounting principles established
by the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants and in effect in the United States from
time to time, applied on a basis consistent with that of the preceding
fiscal year of Borrower, reflecting only such changes in accounting
principles or practice with which the independent public accountants of
Borrower concur.
"GROUND LEASE" shall mean the Enhanced-Use Lease dated August 25, 1993,
between ▇▇▇▇▇▇▇ Partners, Inc., as Lessee, and The United States
Department of Veterans Affairs, as amended.
"GROUND LEASES" shall mean, collectively, the Ground Lease, the Ground
Sublease, and the Ground Sub-Sublease.
"GROUND SUBLEASE" shall mean the Amended and Restated Ground Sublease
Agreement effective as of September 24, 1998, from ▇▇▇▇▇▇▇ Partners,
Inc., as Lessor, to Borrower, as Lessee (Borrower's obligations
thereunder have been assigned to and assumed by Guarantor pursuant to
an Assignment and Assumption Agreement dated November 22, 1998).
"GROUND SUB-SUBLEASE" shall mean the Ground Sub-Sublease dated as of
November 23, 1998, from Guarantor, as Lessor, to Borrower, as Lessee.
"GUARANTOR" shall mean TMX Realty Corporation, a Delaware corporation.
"GUARANTY" shall mean the Guaranty of even date herewith from
Guarantor.
"GOVERNMENTAL AUTHORITY" shall mean any nation, country, commonwealth,
territory, government, state, county, parish, municipality, agency, or
other political subdivision and any entity exercising executive,
legislative, judicial, regulatory, or administrative functions of or
pertaining to government, including, without limitation, any state
agencies and Persons responsible in whole or in part for environmental
matters in the states in which Borrower is located or otherwise
conducting its business activities and the United States Environmental
Protection Agency.
"HAZARDOUS SUBSTANCES" shall mean flammables, explosives, radon,
radioactive materials, hazardous wastes, asbestos, urea formaldehyde
foam insulation, or any material containing asbestos, polychlorinated
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biphenyls (PCBs), toxic substances or related materials, petroleum,
petroleum products, methane, associated oil or natural gas exploration,
production, and development wastes, or any "hazardous substances,"
"hazardous materials," "hazardous wastes," "toxic substances," or
related materials, as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the
Superfund Amendments and Reauthorization Act, as amended, the Hazardous
Materials Transportation Act, as amended, the Resource Conservation and
Recovery Act, as amended, the Toxic Substances Control Act, as amended,
or any other law or regulation now or hereafter enacted or promulgated
by any Governmental Authority.
"IMPROVED PREMISES" shall mean Suite No. 210, consisting of 11,188
rentable square feet of the Property.
"INTELLECTUAL PROPERTY" shall mean patents, patent applications,
trademarks, tradenames, copyrights, technology, know-how, and
processes.
"LAND" shall mean the property described in Exhibit "A" to the
Leasehold Deed of Trust and to the Second Lien Leasehold Deed of Trust.
"LEASEHOLD DEED OF TRUST" shall mean the Leasehold Deed of Trust (with
Security Agreement and Assignment of Rents and Leases) of even date
herewith from Borrower for the benefit of Lender, as may be modified
and amended from time to time, which shall grant and create a lien
against Borrower's leasehold interest in the Property under the Ground
Sub-Sublease.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes, the Security
Instruments, the Guaranty, and such other instruments, documents, and
agreements evidencing, securing, or pertaining to the loans evidenced
by the Notes, which have heretofore been or hereafter are from time to
time executed and delivered to Lender by Borrower, or any other Person
pursuant to this Agreement (including, without limitation, all
documents, agreements, instruments, and estoppels delivered pursuant to
Section 2.1).
"MATERIAL ADVERSE CHANGE" shall mean any act, circumstance, or event
(including, without limitation, any announcement of action) which (a)
causes an Event of Default, (b) otherwise could reasonably be expected
to be material and adverse to the financial condition or operations of
Borrower, or (c) in any manner could reasonably be expected to
materially and adversely affect the validity or enforceability of any
Loan Document.
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"MAXIMUM AUTHORIZED AMOUNT" shall mean Tenant's total liability under
and as provided for in the Authorization Letter, less interest accruing
on that amount under the Real Estate Note.
"MAXIMUM RATE" shall mean, on any day, the maximum nonusurious rate of
interest permitted for that day by whichever of applicable federal or
Texas law permits the higher interest rate, stated as a rate per annum.
On each day, if any, that the Texas Finance Code, as supplemented by
art. 1D.003 of the Texas Credit Title, as it may from time to time be
amended (the "TEXAS CREDIT CODE"), establishes the Maximum Rate, the
Ceiling Rate shall be the "weekly rate ceiling", as defined in art.
1D.003 for that day. Provided, however, that to the extent permitted by
applicable law, Lender reserves the right to change, from time to time
by further notice and disclosure to Borrower, the ceiling on which the
Maximum Rate is based under art. 1D.003; and, provided further, that
the "highest non-usurious rate of interest permitted by applicable law"
for purposes of this Agreement shall not be limited to the applicable
rate ceiling under art. 1D.003 if federal laws or other state laws now
or hereafter in effect and applicable to this Agreement (and the
interest contracted for, charged and collected thereunder) shall permit
a higher rate of interest.
"M.D. ▇▇▇▇▇▇▇▇ LEASE" shall mean the Lease Agreement to be entered into
by and between Borrower, as landlord, and Tenant, covering the Improved
Premises.
"NOTES" shall mean the Real Estate Note and any other note heretofore
or hereafter executed and delivered by Borrower to Lender, together
with all renewals, increases, replacements, extensions, modifications,
and rearrangements of any of the foregoing, as may be entered into from
time to time by Borrower and Lender.
"OBLIGATIONS" shall mean all indebtedness, obligations, and liabilities
of Borrower to Lender of every nature and description, now or hereafter
existing or arising, whether such indebtedness is direct or indirect,
primary or secondary, fixed or contingent or arises out of or is
evidenced by a promissory note, deed of trust, security agreement, open
account, overdraft, endorsement, surety agreement, guaranty, or
otherwise, including, without limitation, all such obligations,
liabilities, and indebtedness of Borrower to Lender under or in
connection with the Loan Documents. Obligations shall include all
renewals, extensions and rearrangements of any of the above described
obligations and indebtedness.
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"OSHA" shall mean the Occupational Safety and Health Act and all rules
and regulations from time to time promulgated thereunder and all
amendments thereof and thereto.
"PERMITTED CHANGES" shall mean a nonmaterial change to the plans and
specifications or Tenant Improvements, which does not significantly
change or alter the character of the Project.
"PERSON" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization, government or any agency or political subdivision
thereof, or any other form of entity.
"PLAN" shall mean an employee benefit plan of Borrower subject to
ERISA.
"PROJECT" shall mean the construction of the Tenant Improvements.
"PROPERTY" shall mean, collectively, the Land, the buildings and other
improvements on or about the Land, and all other property constituting
the "Mortgaged Property," as described in the Leasehold Deed of Trust
and/or the Second Lien Leasehold Deed of Trust, or subject to a right,
lien or security interest to secure the Real Estate Note pursuant to
any other Loan Document.
"REAL ESTATE NOTE" shall mean that certain promissory note of Borrower,
of even date herewith, in the maximum amount of $3,500,000.00, payable
to the order of Lender, and any and all renewals, extensions,
modifications, replacements, substitutions, increases, and
rearrangements thereof.
"RELEASE OF HAZARDOUS SUBSTANCES" shall mean any emission, spill,
release, leak, disposal, or discharge, except in accordance with a
valid permit, license, certificate, or approval of the relevant
Governmental Authority, of any Hazardous Substance into or upon (a) the
air, (b) soils or any improvements located thereon, (c) surface water
or groundwater, or (d) the sewer or septic system, or the waste
treatment, storage, or disposal system servicing any of the Property.
"REPORTABLE EVENT" shall mean a reportable event as defined by ERISA.
"REQUIRED LAND DUE DILIGENCE" shall mean the following items:
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(a) a current title commitment for a leasehold mortgagee's
policy of title insurance for Borrower's leasehold interest in the
Property, issued by a company acceptable to Lender on the Texas ALTA
form, together with copies of all documents referenced therein, and
payment of the premium charged with respect thereto for the issuance of
Leasehold Mortgagee's Title Insurance Policy, in the amount of the Real
Estate Note;
(b) a completed Environmental Site Questionnaire for the
Property, on a form provided by Lender, together with such additional
environmental site assessments and other environmental due diligence as
required by Lender;
(c) a survey of the Property, prepared in a manner
satisfactory to Lender;
(d) the identity of each Contractor and the construction
contract entered into by that Contractor and Borrower;
(e) the agreement entered into by Borrower with the Project's
architect with respect to the Tenant Improvements;
(f) an appraisal of the Property and/or of the Improved
Premises performed in a manner and scope satisfactory to Lender;
(g) evidence of all hazard, fire, liability, builders risk,
and other insurance required by this Agreement, the Deed of Trust, and
otherwise required by Lender;
(h) the plans and specifications for the Tenant Improvements;
(i) the Budget and total cost breakdown for the Tenant
Improvements;
(j) the construction and draw schedule for the Tenant
Improvements;
(k) each of the Ground Leases and all modifications thereof
and amendments thereto, together with all documents and instruments
referenced therein;
(l) the M.D. ▇▇▇▇▇▇▇▇ Lease and all documents and instruments
issued pursuant thereto;
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(m) an Affidavit of No Liens, in which a representative of
Borrower swears and acknowledges that no work has been performed on the
Improved Premises or materials supplied or specially fabricated for
delivery to the Improved Premises, which has not been paid for in full,
together with any waivers of lien to date required by Lender, each in a
form acceptable to Lender;
(n) if and to the extent required by Lender, proof in form
and substance satisfactory to Lender that the required permits,
building and otherwise, and authorizations from all appropriate
Governmental Authorities necessary or required in connection with the
construction of the Tenant Improvements, together with copies of all
other required governmental permits;
(o) certificates or other satisfactory evidence (i) of the
identity of all taxing authorities and utility districts (or similar
authorities) having jurisdiction over the Property; and (ii) that all
taxes, standby fees and any other similar charges which could create a
lien on the particular property or any part thereof have been paid to
the extent due and payable;
(p) evidence of compliance of the Property and the Improved
Premises (and the construction of Tenant Improvements) with all
applicable Requirements of Law; and
(q) such other documents and certificates as Lender may
reasonably request in connection with the transactions contemplated in
this Agreement.
"REQUIREMENT OF LAW" shall mean, as to any Person, the certificate or
articles of incorporation and by-laws or other organizational or
governing documents of such Person, and any applicable law, treaty,
ordinance, order, judgment, rule, decree, regulation, or determination
of an arbitrator, court, or other Governmental Authority, including,
without limitation, rules, decrees, judgments, regulations, orders, and
requirements for permits, licenses, registrations, approvals, or
authorizations (and any authoritative interpretation of any of the
foregoing), in each case as such now exist or may be hereafter amended
and are applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"RETAINAGE" shall mean, an amount equal to the sum of the aggregate of
all amounts required to be retained by Borrower in accordance with
Section 53.101, and such other applicable Sections, of the Texas
Property Code in order to secure, for purposes of the Texas Property
Code, the payment of artisans and mechanics who perform labor or
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service and the payment of any and all other persons who furnish
material, material and labor, or specifically fabricated material for
any contractor, subcontractor, agent, or receiver the construction of
the Tenant Improvements.
"RIVERWAY" shall mean Riverway Bank.
"RIVERWAY CONSTRUCTION LOAN AGREEMENT" shall mean the Construction Loan
Agreement dated November 23, 1998, between Riverway and Guarantor.
"SECOND LIEN LEASEHOLD DEED OF TRUST" shall mean the Second Lien
Leasehold Deed of Trust (with Security Agreement and Assignment of
Rents and Leases) of even date herewith from Borrower for the benefit
of Lender, as may be modified and amended from time to time, which
shall grant and create a line against Borrower's leasehold interest in
the Property under the Ground Sublease.
"SECURITY INSTRUMENTS" shall mean the Leasehold Deed of Trust, the
Second Lien Leasehold Deed of Trust, and any and all other heretofore
and hereafter existing security and other agreements which create or
▇▇▇▇▇ ▇ ▇▇▇▇ or security interest as security for any of the Notes or
other Obligations.
"SUBSIDIARY" shall mean, as to any Person, a corporation of which
shares of stock having ordinary voting power (other than stock having
such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such
corporation are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person.
"TENANT" shall mean the Board of Regents of the University of Texas
System, for the use and benefit of the University of Texas M.D.
▇▇▇▇▇▇▇▇ Cancer Center.
"TENANT IMPROVEMENTS" shall mean all tenant improvements to the
Improved Premises, to be constructed in accordance with the plans and
specifications described in and as provided for in the M.D. ▇▇▇▇▇▇▇▇
Lease.
"UNENCUMBERED LIQUIDITY" shall mean the following types of assets, but
only to the extent such assets have not been pledged, mortgaged,
hypothecated, sold, or are subject to any conditional sale or pledge
agreement, or are in any way subject to a claim of any third party (it
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being agreed, for purposes of clarification, that any assets of
Borrower now or hereafter pledged to Lender are not Unencumbered
Liquidity for purposes of this Agreement): marketable securities which
have been issued by the federal government or an agency of the federal
government; marketable securities which constitute debt and other
obligations of a state or municipality and which are rated by a
recognized rating system in the industry as A or higher; marketable
securities which are bonds and other debt instruments issued by
corporate entities which are nonconvertible and which are rated by a
recognized rating system in the industry as AA or higher; marketable
securities which are publicly traded on a nationally recognized
domestic stock exchange; and cash and cash equivalents. The value of
the Unencumbered Liquidity shall be based upon the daily closing price
reported on such exchanges or other markets on which the particular
securities are traded.
1.2 Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP consistent with such
principles. In the event that changes in GAAP shall be mandated by the Financial
Accounting Standards Board and/or the American Institute of Certified Public
Accountants or any similar accounting body of comparable standing, or shall be
recommended by Borrower's certified public accountants, to the extent that such
changes would modify such accounting terms or the interpretation or computation
thereof as contemplated by this Agreement at the time of execution hereof,
then in such event, such changes shall be followed in defining such accounting
terms only after Lender and Borrower amend this Agreement to reflect the
original intent of such terms in light of such changes, and such terms shall
continue to be applied and interpreted without such change until such agreement.
1.3 Other Terms. All other terms contained in this Agreement shall
have, when the context so indicates, the meanings provided for in the Uniform
Commercial Code, as adopted in Texas, to the extent the same are used or defined
therein.
1.4 References. References in this Agreement to Section or Exhibit
numbers shall be to Sections and Exhibits of this Agreement, unless expressly
stated to the contrary. References in this Agreement to "hereby," "herein,"
"hereinabove," "hereinafter," "hereinbelow," "hereof," and "hereunder" shall be
to this Agreement in its entirety and not only to the particular Section or
Exhibit in which such reference appears.
1.5 Sections. This Agreement, for convenience only, has been divided
into Sections; and it is understood that the rights and other legal relations of
the parties hereto shall be determined from this instrument as an entirety and
without regard to the aforesaid division into Sections and without regard to
headings prefixed to such Sections.
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1.6 Number and Gender. Whenever the context requires, reference herein
made to the single number shall be understood to include the plural; and
likewise, the plural shall be understood to include the singular. Definitions of
terms defined in the singular or plural shall be equally applicable to the
plural or singular, as the case may be, unless otherwise indicated. Words
denoting sex shall be construed to include the masculine, feminine and neuter,
when such construction is appropriate; and specific enumeration shall not
exclude the general but shall be construed as cumulative.
1.7 Incorporation of Exhibits. The Exhibits attached to this Agreement
are incorporated herein and shall be considered a part of this Agreement for all
purposes.
1.8 Certain Other Matters of Construction. All references to statutes
and related regulations shall include any amendments of same and any successor
statutes and regulations. All references to any instruments or agreements,
including, without limitation, references to any of the Loan Documents, shall
include any and all modifications or amendments thereto and any and all
extensions or renewals thereof. All references herein to the knowledge of
Borrower shall mean actual or constructive knowledge of any officer, employee,
agent, or other representative of Borrower. Current, for purposes of this
Agreement, shall mean within 30 days from the applicable date. Knowledge, for
purposes of this Agreement, shall mean actual and constructive knowledge. The
term "or," when used herein in a sequence, shall be interpreted as "and/or."
SECTION 2 - CONDITIONS
2.1 Conditions Precedent to the Initial Advance. The obligations of
Lender under this Agreement, including, without limitation, the obligation to
make the first advance under this Agreement, are subject to the full, complete,
and timely satisfaction of each of the following conditions precedent:
(a) Lender shall have received and approved each of the
following:
(i) the Loan Documents, each executed by an
Authorized Person of Borrower, Guarantor, or such other
necessary person;
(ii) a commitment fee in the amount of $18,000.00 as
independent consideration for Lender's commitment to make the
Construction Loan;
(iii) evidence of the existence, good standing,
authority, and capacity of Borrower and Guarantor, to execute,
deliver, and perform the Loan Documents executed by each of
them, including, but not limited to: (x) a copy of Borrower's
and Guarantor's organizational documents, and all amendments
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thereto; (y) certificates of existence, good standing and
qualification to do business in the state of its creation and
if different, in the state where the Property is located,
issued by the appropriate governmental officials; and (z) all
certificates, resolutions, and consents required by Lender
applicable to the foregoing;
(iv) a copy of the fully executed Authorization
Letter, and designation of Lender to receive all amounts due
Borrower under and with respect to the Authorization Letter,
together with evidence that ▇▇▇▇▇▇▇ ▇. Best is authorized to
execute the Authorization Letter;
(v) an Estoppel Certificate from ▇▇▇▇▇▇▇ Partners,
Inc., agreeing and certifying to, among other things, that the
Ground Sublease is in full force and effect and providing
Lender with a right to cure default by the lessee thereunder;
(vi) an Estoppel Certificate from the United States
Department of Veterans Affairs, agreeing and certifying to,
among other things, that the Ground Lease is in full force and
effect as providing Lender with a right to cure default by
the lessee thereunder;
(vii) an Intercreditor Agreement between Riverway and
Lender, wherein each party recognizes their respective rights
and priorities with respect to the Property and the Improved
Premises;
(viii) reimbursement to Lender for its fees, costs,
and expenses incurred in connection with the loan transaction
described in this Agreement; provided that Lender's attorneys'
fees shall not exceed $15,000.00 unless Borrower has consented
in writing to such increased amount;
(ix) the Required Land Due Diligence; and
(x) a certificate or certificates of a reporting
service acceptable to Lender, reflecting the results of
searches made not earlier than ten (10) days prior to the date
of this Agreement of the central and local Uniform Commercial
Code records, showing no filings against any of the collateral
for the Construction Loan or against Borrower, or otherwise;
(b) No Material Adverse Change shall have occurred in the sole
reasonable opinion of Lender;
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(c) The representations and warranties contained in Section 4
hereof shall (except as affected by the transactions contemplated by
this Agreement) be true and unbreached and no Event of Default shall
have occurred and be continuing or will have occurred at the completion
of the making of the initial advance;
(d) All legal matters incident to the consummation of the
transactions contemplated under this Agreement shall be satisfactory to
Messrs. Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P. special counsel for
Lender; and
(e) Lender shall have received, in addition to the items set
forth elsewhere in this Section, all other instruments and agreements
reasonably required by Lender, including, without limitation, all
agreements and instruments necessary to give Lender a first and prior
perfected security interest and/or lien in and to the assets of
Borrower used as collateral and security for the Notes.
2.2 Conditions Precedent to Future Advances. The obligation of the
Lender under this Agreement to make any advances after the date of this
Agreement under the Real Estate Note, in accordance with the terms and
provisions of Section 3 of this Agreement, is subject to the full and complete
satisfaction of each of the following conditions precedent (as applicable) as of
the date of each such advance or payment:
(a) All conditions precedent to the first advance listed in
Section 2.1 have been and continue to be satisfied (including, without
limitation, any and all such conditions which have been waived in whole
or in part by Lender in connection with the first advance or any
subsequent advance unless such wavier expressly applies to future
advances);
(b) No Event of Default or any event which, with the giving of
notice or the lapse of time, or both, could become an Event of Default
exists;
(c) The representations and warranties made in the Loan
Documents shall be true and correct on and as of the date of each
advance;
(d) Each of the following conditions (in addition to
subsections (a), (b), and (c) of this Section 2.2) shall have been
fully and completely satisfied:
(i) Lender shall have received a Draw Request
provided in accordance with Section 3.4;
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(ii) Lender shall have been furnished with, and
approved, fully executed counterparts, as appropriate, of a
Waiver of Lien to Date, in the form of Exhibit "B", from each
Contractor and subcontractor and other Persons providing work
to and with respect to the Project;
(iii) If and to the extent required by Lender, Lender
shall have been furnished evidence that Borrower and all other
required Persons have jointly executed and filed an Affidavit
of Commencement, in a form satisfactory to Lender, with the
county clerk of the county in which the Property is located
not later than the 30th day after the date of actual
commencement of construction of the particular project or
delivery of materials to the Improved Premises. Such affidavit
shall contain the information required by Section 53.124(c) of
the Texas Property Code, shall not be filed prior to approval
thereof in writing by Lender, and shall in no event be filed
showing a date of commencement of construction or delivery of
materials which is prior to the date of filing the applicable
deed of trust with the county clerk of the county where the
Property is located;
(iv) Lender shall have received a satisfactory down
date endorsement ("DOWN DATE ENDORSEMENT") to its leasehold
mortgagee's policy which Down Date Endorsement shall (x)
extend the effective date of the leasehold mortgagee's policy
issued in connection with the Property to the date of the
requested construction advance and show that since the
effective date of the interim construction binder policy (or
the effective date of the last such Down Date Endorsement, if
any) there has been no change in the status of the title to
the Property and no new encumbrances thereon, and (y) state
the amount of coverage then committed under the interim
construction binder (which shall be the total of all advances
of the Real Estate Note including the disbursement which is
made concurrently with the Down Date Endorsement);
(v) No mechanic's or materialmen's lien claim or
other encumbrance shall have been filed and be in effect
against the Improved Premises or any other part of the
Property, except such liens and encumbrances which are listed
on Exhibit "B" to the Leasehold Deed of Trust;
(vi) With respect to any advance for hard costs, an
AIA Document G-702 and G-703 (1992 Edition), executed by all
applicable parties;
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(vii) Lender (through its authorized third party
representative) shall have inspected the Improved Premises to
confirm all items subject to the requested advance have been
performed and delivered, and Borrower shall have reimbursed
Lender for all costs and expenses related to such inspection;
(viii) Borrower shall have delivered to Lender
evidence that construction is proceeding in a manner to assure
completion of the Project by the Conversion Date;
(ix) The Tenant Improvements shall not have been
damaged by fire or other casualty or, in such event, if
permitted under the terms and provisions of this Agreement and
the Deed of Trust, the Tenant Improvements shall not have been
fully repaired and restored, or be in the process of being
fully repaired and restored, to the state of completion
achieved immediately before the casualty;
(x) Borrower shall have delivered to Lender such
other information, documents, legal opinions, schedules,
affidavits, statements, invoices, bills and other supporting
documentation and material required by this Agreement, or
otherwise required by Lender to substantiate any of the
matters necessary to qualify for the advance; and
(xi) All of the terms and provisions of Section 3
(including, without limitation, Sections 3.4 or 3.5) shall be
fully and completely satisfied or waived in writing by Lender.
2.3 Conditions to Final Advance for Retainage. The loan proceeds are to
be disbursed under this Agreement subject to a holdback for an amount equal to
the sum of the Retainage. Lender shall not be obligated to make the final
advance of loan proceeds under this Agreement to pay Retainage until all of the
following conditions have been fully satisfied (with proof thereof being
furnished in form and sufficiency to Lender):
(a) Thirty-one (31) days have elapsed after the later of (i)
"completion" of the Tenant Improvements, as defined in and required by
Section 53.106 of the Texas Property Code, or (ii) the date of filing
with the county clerk of the county where the Property is located of an
Affidavit of Completion (the "AFFIDAVIT OF COMPLETION"), executed by
Borrower and all other requisite persons, in a form satisfactory to
Lender, or (iii) the date Borrower has otherwise fully and completely
satisfied the requirements of Section 53.106 of the Texas Property
Code, including,
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without limitation, providing a copy of any such affidavit to all
parties, and within the time periods, required by such Section 53.106.
(b) Lender shall be furnished with, and shall have approved,
fully executed counterparts, as appropriate, of the following:
(i) As required by Lender, evidence that all
applicable Requirements of Law have been satisfied, including,
without limitation, (x) receipt by Borrower of all necessary
governmental permits and other licenses, certificates, and
permits with respect to the completion, use, occupancy, and
operation of the improvements, together with evidence,
satisfactory to Lender that such licenses, certificates, and
permits are in full force and effect and have not been
revoked, canceled, or modified, it being specifically agreed
that Lender shall have received a certified copy of the final
Certificate of Occupancy, issued by the requisite municipal
authority, evidencing the legal occupancy of the particular
property, which must be unqualified and unconditional, and (y)
such evidence as Lender may request to show that the
improvements and their use comply fully with any and all
applicable zoning, subdivision, building, and environmental
requirements (such evidence shall include, without limitation,
material to establish that the number of parking spaces
available on the particular property is sufficient to comply
with all codes and ordinances then applicable, or other
appropriate Governmental Authority and that all fire systems
in the improvements are installed, operational, and sufficient
to comply with such codes and ordinances of the appropriate
Governmental Authority);
(ii) The Affidavit of Completion, executed by
Borrower and such other requisite Persons, on a form
satisfactory to Lender, and filed with the county clerk of the
county in which the Property is located;
(iii) An affidavit of bills paid, in a form
acceptable to Lender, executed by Borrower and such other
Persons who have supplied materials or labor as Lender may
require to satisfy itself that the construction of the Tenant
Improvements have been completed lien-free and that the costs
of all materials furnished and labor performed in connection
with such construction have been paid in full;
(iv) an endorsement to Lender's leasehold
mortgagee's policy of title insurance, acknowledging
completion of construction of the Tenant Improvements in
compliance with all applicable
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matters of public record, and removing any exception for filed
or unfiled mechanics' or materialmen's liens, other exceptions
relating to "completion of improvements and pending
disbursements," "survey exceptions," and as otherwise required
by Lender;
(v) If required by Lender, a complete inventory,
certified by an Authorized Officer of Borrower, of the
personal property constituting Mortgaged Property (as that
term is defined in the Leasehold Deed of Trust) furnishings,
fixtures, and equipment owned or leased by Borrower and used
in the operation of the Tenant Improvements with leased items,
if any, designated as such;
(vi) Evidence (which may be a written certification
from the project's architect on the form of AIA Document
G-704) that the Tenant Improvements have been constructed in
accordance with the plans and specifications and the M.D.
▇▇▇▇▇▇▇▇ Lease (and Tenant shall have accepted and occupied
the Improved Premises);
(vii) If required by Lender, a complete set of "as
built" plans and specifications for the Tenant Improvements;
(viii) Such evidence as Lender may request to show
that there are no outstanding and unpaid conditional sales
contracts or indebtedness secured by security agreements and
financing statements upon the improvements relating to the
particular project or any of the personal property covered by
any Loan Document; and
(ix) Such other evidence or information concerning
completion as Lender shall reasonably require.
(c) No Default or Event of Default shall have occurred and be
continuing.
(d) All of the conditions listed in this Section shall be
fully and completely satisfied by the Conversion Date.
SECTION 3 - THE CONSTRUCTION LOAN
3.1 General Information and Purpose. The proceeds of the Construction
Loan shall be used by Borrower only to pay the cost of the construction of the
Tenant Improvements, and other costs regarding the Property if and to the extent
that such costs are specifically provided for in the Budget. The Loan Documents,
which must
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be in form, detail, and substance satisfactory to Lender, evidence the
agreements of Borrower and Lender with respect to the Construction Loan.
Borrower shall comply with all Loan Documents.
3.2 Commitment to Lend. Lender agrees to make the Construction Loan to
Borrower in advances subject to and in accordance with the conditions set forth
in Article 2 hereof, and the other terms and conditions of this Agreement.
Lender's commitment to make advances hereunder shall expire and terminate
(i) automatically on the Conversion Date; (ii) automatically if the Construction
Loan is prepaid in full; and (iii) at Lender's option upon the occurrence of an
Event of Default. The Construction Loan is not revolving. An amount repaid may
not be reborrowed. On the Conversion Date, provided that each of the conditions
to the final advance for Retainage listed in Section 2.3 is then fully satisfied
or waived in writing by Lender, the Construction Loan shall automatically
convert into a nonadvancing term loan which shall be due and payable in
accordance with the terms and provisions of the Real Estate Note and
Sections 3.3 and 3.12. Notwithstanding the foregoing, or anything else to the
contrary herein, unless and until Lender has required and approved a fully
executed counterpart of the M.D. ▇▇▇▇▇▇▇▇ Lease, Lender shall not be required or
committed to fund more than the Maximum Authorized Amount under or with respect
to the Construction Loan.
3.3 Payments. All payments made by Borrower under this Agreement or the
Notes, or the other Loan Documents, shall be in federal or other immediately
available funds, not later than 2:00 p.m., Houston time, on the date that such
payment is required to be made, to Lender at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, as such other address required by Lender. If the date for any payment due
under the Loan Documents falls on a day which is not a Business Day, such
payment date shall be deemed to have fallen on the next following Business Day.
3.4 Draw Request. A "DRAW REQUEST" shall mean a properly completed and
executed written application by Borrower to Lender, and authorized by M.D.
Anderson, in the form of Exhibit "A" (or in another form approved by Lender)
setting forth the amount of Construction Loan proceeds desired, together with
such schedules, affidavits, releases, waivers, statements, invoices, bills, and
other documents, certificates and information required by Lender. At least five
(5) Business Days before the requested date of each advance, Borrower shall
deliver a Draw Request to Lender. Borrower shall be entitled to an advance only
in an amount approved by Lender in accordance with the terms of this Agreement
and the Loan Documents (which in any event shall be net of Retainage). Lender
shall not be required to make advances more frequently than one time each
calendar month. Lender shall, only upon the satisfaction of all applicable
conditions of this Agreement and the Loan Documents, make the requested advance
to Borrower on a business day within five (5) Business Days after such
satisfaction. Each Draw Request, and Borrower's acceptance of any advance, shall
be deemed to ratify and confirm that all representations and warranties in the
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Loan Documents remain true and correct as of the date of the Draw Request and
the advance, respectively.
3.5 Additional Equity Requirement. If, at any time, Lender determines
that the sum of (a) the unadvanced portion of the Construction Loan to which
Borrower is entitled, plus (b) the amount of the Aggregate Costs which are
scheduled to be paid by Borrower from other funds which are available, set aside
and committed, to Lender's satisfaction, is or will be insufficient to pay the
unpaid actual Aggregate Cost, Borrower shall, within seven (7) days after
written notice from Lender, deposit with Lender the amount of the deficiency as
"ADDITIONAL EQUITY". The interest earned on the Additional Equity shall be part
of the Additional Equity. The Additional Equity is hereby pledged as additional
collateral on the Construction Loan, and Borrower hereby grants and conveys to
Lender a security interest in all funds so deposited with Lender, as additional
collateral on the Construction Loan.
3.6 Construction Advances. All advances of the Construction Loan made
hereunder pursuant to a Draw Request shall be made by Lender first from
Additional Equity, to the extent thereof, and then from amounts advanced by
Lender from the proceeds of the Construction Loan in accordance with the terms
and conditions of the Real Estate Note and this Agreement. Borrower shall
disburse all advances made to Borrower, whether from Additional Equity or
otherwise, for payments of the costs and expenses specified in the Budget for
which the advances were made, and for no other purpose. Following receipt and
approval of a Draw Request, all supporting documentation and information, and
the satisfaction of the other terms of Section 2.2, Lender will determine the
amount of the advance it will make in accordance with this Agreement, the Loan
Documents, and the Budget (which in any event shall be net of Retainage).
3.7 Direct Advances. Borrower hereby irrevocably authorizes Lender (but
Lender shall have no obligation) to (a) advance Construction Loan funds directly
to itself, whether such funds are taken from Additional Equity or otherwise, to
pay interest due on the Construction Loan, and (b) advance and directly apply
the proceeds of any advance (whether from Additional Equity or otherwise) to the
satisfaction of any of Borrower's obligations under any of the Loan Documents,
even though Borrower did not include that amount in a Draw Request and/or no
Event of Default exists. Each such direct advance (except for application of
Additional Equity) shall be added to the outstanding principal balance of the
Construction Loan and shall be secured by the Loan Documents. Unless Borrower
pays such interest from other resources, Lender may advance Construction Loan
funds and apply Additional Equity pursuant to this Section for interest payments
as and when due. Nothing contained in this Agreement shall be construed to
permit Borrower to defer payment of interest on the Construction Loan beyond the
date(s) due. This Section shall not affect Borrower's absolute obligation to pay
the same in accordance with the Loan Documents. Lender may hold, use, disburse,
and apply the Construction Loan and Additional Equity for payment of any other
obligation of Borrower under the Loan
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Documents. Borrower hereby assigns and pledges the proceeds of the Construction
Loan and any Additional Equity to Lender for such purposes. Lender may advance
and incur such expenses as Lender deems necessary for the completion of the
Tenant Improvements and to preserve the Property, any Ground Lease, and any
security for the Construction Loan, and such expenses, even though in excess of
the amount of the Construction Loan, shall be secured by the Loan Documents and
shall be payable to Lender on demand. Lender may disburse any portion of any
advance at any time, and from time to time, to persons other than Borrower for
the purposes specified in this Section and the amount of advances to which
Borrower shall thereafter be entitled shall be correspondingly reduced.
3.8 Conditions and Waivers. All conditions precedent to the obligation
of Lender to make any advance of the Construction Loan are imposed hereby solely
for the benefit of Lender, and no other party may require satisfaction of any
such condition precedent or be entitled to assume that Lender will refuse to
make any advance in the absence of strict compliance with such conditions
precedent. Any requirement of this Agreement may be waived, in whole or in part,
in a specific written waiver intended for that purpose and signed by Lender.
Lender shall have the right to approve and verify the periodic progress, costs
incurred by Borrower, and the estimated costs remaining to be incurred. No
advance shall constitute an approval or acceptance by Lender of any construction
work, a waiver of any condition precedent to any further advance, or preclude
Lender from thereafter declaring the failure of Borrower to satisfy such
condition precedent to be an Event of Default. Unless a written waiver expressly
states otherwise, no waiver by Lender of any condition precedent or obligation
shall preclude Lender from requiring such condition or obligation to be met
prior to making any other advance or from thereafter declaring the failure to
satisfy such condition or obligation to be an Event of Default.
3.9 Funding. Advances of the Construction Loan shall be made at
Borrower's option, by wire transfer or check payment to Borrower, or by direct
or joint check payment to any or all persons entitled to payment for work or
services performed or material furnished in connection with the Project or the
Construction Loan. Lender shall not be required to, and has no responsibility
to, supervise the proper application or distribution of funds to third parties.
3.10 Budget. The Budget has been prepared by Borrower and Borrower
represents to Lender that it includes all costs and expenses (the "AGGREGATE
COST") incident to the Construction Loan and the Project, through the maturity
date of the Construction Loan, after taking into account the requirements of
this Agreement. Lender shall not be required to (a) make any advance for any
cost not set forth in the Budget, (b) make any advance for any line item in the
Budget that, when added to all prior advances for that line item, would exceed
the lesser of (i) the actual cost incurred by Borrower for such line item or
(ii) the sum allocated in the Budget for that line item, (c) make any advance
for any contingency line item unless Lender consents to such advance in its sole
discretion or (d) make any advance for interest on the Construction
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Loan after commencement of operations in the Tenant Improvements if and to the
extent that there is sufficient net operating income from the Property to cover
any such advances. Lender may make advances allocated to line items in the
Budget for other purposes or in different proportions as Lender in its sole
discretion deems necessary or advisable.
3.11 Execution of M.D. ▇▇▇▇▇▇▇▇ Lease. Prior to the earlier to occur of
(a) the Conversion Date, or (b) the date which Lender has advanced the Maximum
Authorized Amount under the Real Estate Note, Borrower shall have provided to
Lender (on forms acceptable to Lender) a fully executed counterpart of the M.D.
▇▇▇▇▇▇▇▇ Lease and a Subordination, Non-Disturbance and Attornment Agreement
from Tenant to Lender.
3.12 Tenant Payment. Borrower shall cause Tenant to pay all amounts due
under the M.D. ▇▇▇▇▇▇▇▇ Lease directly to an account of Borrower located at
Lender. Upon deposit thereof, Lender shall, and is hereby authorized by Borrower
to, apply all such payments to the Real Estate Note and other Obligations in
such order and manner as determined by Lender.
SECTION 4 - REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Borrower. Borrower represents and
warrants to Lender (which representations and warranties are made in addition to
the warranties and representations made in the Security Instruments and will
survive the delivery of this Agreement) that:
(a) Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and has
full power and authority to consummate the transactions contemplated in
this Agreement. Borrower has the power to own its properties and carry
on its business as it is now being conducted, and is duly authorized to
do business and is in good standing in the State of Texas and in every
other jurisdiction where qualification is necessary. Borrower is duly
authorized and empowered to create, issue, execute, and deliver the
Loan Documents, and all action on its part requisite for the due
creation, issuance, and delivery of the Loan Documents has been duly
and effectively taken. The Loan Documents do not violate any provision
of Borrower's organizational documents, or any contract, agreement, law
or regulation to which Borrower is subject, and do not require the
consent or approval of any Governmental Authority;
(b) Borrower is not in default in the performance, observance,
or fulfillment of any of the obligations, covenants, or conditions
contained in any agreement or instrument to which it is a party, or in
default under or in violation of any law, order, regulation or demand
of any Governmental Authority, which default or violation might have
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consequences which would materially and adversely affect the business
or properties of Borrower;
(c) The Financial Statements are complete and correct in all
material respects, have been prepared in accordance with GAAP, and
fully and accurately reflect the financial condition and results of the
operations of Borrower as of the date and for the period stated in all
material respects. No Material Adverse Change has occurred in the
condition, financial or otherwise, of Borrower since the date of the
Financial Statements;
(d) Borrower has not made investments in, advances to, or
guaranties of the obligations of any Person, except as disclosed by the
Financial Statements;
(e) Except for liabilities as previously disclosed to Lender
in the Financial Statements and other liabilities incurred since that
date in the normal course of business, Borrower does not have any
material liabilities, direct or contingent. There is no litigation,
administrative proceeding, investigation, or other action of any nature
pending or, to the knowledge of Borrower, threatened against Borrower
before any court or administrative agency which involves the
possibility of any judgment or liability which is likely to materially
and adversely affect the business or the assets of Borrower or the
right of Borrower to carry on business as now conducted. To the best of
Borrower's knowledge and belief, no unusual or unduly burdensome
restriction, restraint or hazard exists by contract, law, governmental
regulation or otherwise relative to the business or assets of Borrower;
(f) Borrower has good and indefeasible title to its leasehold
interest in the real property assets pledged by it pursuant to the
Security Instruments and has good and marketable title to its personal
property assets pledged by it pursuant to the Security Instruments,
free and clear of all security interests, liens, and encumbrances,
except for (i) liens, security interests, and/or claims on such assets
as provided in Exhibit "B" to the Leasehold Deed of Trust and as
otherwise disclosed to and approved by Lender in writing; and (ii)
restrictions, rights, easements, and minor irregularities in title
which do not materially (x) interfere with the occupation of Borrower
and the use and enjoyment by Borrower and of such assets in the normal
course of Borrower's business as presently conducted or (y) impair the
value thereof for such business;
(g) With respect to the Tenant Improvements, no work of any
kind has been or will be commenced or performed on or about the
Improved Premises, no equipment or material has been or will be
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delivered to or upon the Improved Premises for any purpose whatsoever,
and no contract (or memorandum or affidavit thereof) for the supplying
of labor, materials, or services for the design or construction of the
Tenant Improvements, nor any affidavit or notice of commencement of
construction of the Tenant Improvements, has been or will be executed
or recorded, which could cause a mechanic's or materialman's lien or
similar lien to have an inception so as to achieve priority over the
mortgage or the rights of Lender thereunder;
(h) The plans and specifications do and the Tenant
Improvements when constructed will comply with all Requirements of Law,
including, without limitation, those regarding access and facilities
for handicapped or disabled persons;
(i) To the best of Borrower's knowledge, the construction
schedule for the Project is realistic and the Conversion Date is a
reasonable estimate of the time required to complete the Project;
(j) Borrower has filed all tax returns required to be filed
and has paid all taxes shown thereon to be due, including interest and
penalties, or due pursuant to any assessment received by Borrower,
except such taxes, if any, under contest in good faith and for which
adequate reserves have been provided. The charges, accruals and
reserves on the books of Borrower for any taxes or other governmental
charges are, in the opinion of Borrower, adequate. Borrower has paid
all franchise and other taxes which are now due;
(k) To the best of Borrower's knowledge and belief, no
Reportable Event has occurred with respect to any Plan. Borrower has
not incurred any material accumulated unfunded deficiency within the
meaning of ERISA, nor has Borrower incurred any material liability to
the Pension Benefit Guaranties Corporation established under ERISA (or
any successor thereto under ERISA) in connection with any Plan;
(l) The principal place of business and chief executive office
of Borrower and the place where Borrower keeps its books and records is
the address of Borrower set forth in Section 9.7 of this Agreement;
(m) Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(n) Borrower is not engaged principally, or as one of its
important activities, in the business of extending or obtaining credit
for the purpose of purchasing or carrying margin stock (within the
meaning of Regulations U or X of the Board of Governors of the Federal
Reserve
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System). No part of the proceeds of any extension of credit under this
Agreement will be used to purchase or carry any such margin stock or to
extend credit to others for the purpose of purchasing or carrying any
such margin stock. No transaction contemplated by the Loan Documents is
in violation of any regulations promulgated by the Board of Governors
of the Federal Reserve System, including, without limitation,
Regulations U and X;
(o) To the best of Borrower's knowledge, no information,
exhibit, or report prepared by or at the direction or with the
supervision of Borrower and furnished to Lender in connection with the
negotiation and preparation of this Agreement or any Loan Document
contains any material misstatements of fact or omits a material fact
necessary to make the statements contained therein not misleading as of
the date made or deemed made. To the best of Borrower's knowledge,
there is no fact which Borrower has failed to disclose to Lender in
writing which materially affects adversely or, so far as Borrower can
now foresee, will materially affect adversely the business, prospects,
profits, or condition (financial or otherwise) of Borrower or the
ability of Borrower to perform this Agreement;
(p) Borrower is now and, believes that after giving effect to
initial advances to be made hereunder, at all times will be, solvent
and will be adequately capitalized to pay its debts as they become due;
(q) To the best of Borrowers knowledge, as of the date hereof,
no event has occurred and no condition exists which would, upon the
execution and delivery of this Agreement or Borrower's performance
hereunder, constitute a Default or an Event of Default;
(r) No approval or consent is required from any Person in
connection with the execution and delivery by Borrower of this
Agreement and the other documents and agreements required by Lender in
connection with this Agreement, which has not been provided to Lender
in connection with the delivery of this Agreement;
(s) Except in accordance with all Requirements of Law or the
terms of a valid permit, license, certificate, or approval of the
Governmental Authority, no Release of Hazardous Substances has been
made by Borrower or any other Person, from, affecting, or related to
any of the Property;
(t) No Environmental Complaint with respect to the Property
has been received by Borrower or any other Person;
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(u) Either the Authorization Letter or the M.D. ▇▇▇▇▇▇▇▇ Lease
(as applicable) is in full force and effect and no Person is in default
in its obligation thereunder;
(v) Each Ground Lease is in full force and effect and no
Person is in default of its obligation thereunder;
(w) No Event of Default has occurred and is continuing under
and as defined in the Riverway Construction Loan Agreement; and
(x) Each request for advance under the Notes by Borrower to
Lender pursuant to this Agreement or any of the other Loan Documents
constitutes (i) an automatic representation and warranty by Borrower to
Lender that there does not then exist any Default or Event of Default
and (ii) a reaffirmation as of the date of said request that all of the
representations and warranties of Borrower contained in this Agreement
and the other Loan Documents are true in all material respects except
for any changes in the nature of Borrower's business or operations that
would render the information contained in any exhibit attached hereto
either inaccurate or incomplete, so long as Lender has consented to
such changes in writing or such changes are expressly permitted by this
Agreement.
SECTION 5 - AFFIRMATIVE COVENANTS
5.1 Covenants of Borrower. In addition to the covenants and agreements
of Borrower made elsewhere in this Agreement, Borrower covenants and agrees,
unless Lender shall otherwise consent in writing, that Borrower shall:
(a) Do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, rights, and
franchises; and at all times maintain, preserve and protect its assets
used or useful in the conduct of its business, keep the same in good
repair, working order and condition, and make, or cause to be made, all
needful or proper repairs, replacements and improvements thereto so
that Borrower's business may be properly and advantageously conducted
at all times;
(b) (i) Comply with all applicable statutes, government
regulations, and other Requirements of Law; (ii) remain licensed with
all applicable state and federal regulatory and other agencies; (iii)
pay and discharge promptly all taxes, assessments and governmental
charges or levies imposed on it, the collateral described in any
Security Instrument or any part thereof, its income and profits, and
any of its property, real, personal or mixed, or any part thereof,
before the same shall be in
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default; and (iv) pay all lawful claims for labor, materials, supplies,
or other claims, which, if unpaid, might become a valid lien or charge
upon such property or any part thereof;
(c) Promptly furnish to Lender such information regarding the
business affairs, financial condition, assets, liabilities, operations,
and transactions of Borrower as Lender may reasonably request, and,
without limiting the foregoing, furnish to Lender the following:
(i) As soon as available, and in any event within 45
days from the end of each fiscal quarter of Borrower, a
financial statement, on a Form acceptable to Lender, signed by
an Authorized Officer of Borrower, showing the financial
condition of Borrower, on a consolidated and consolidating
basis, at the end of such fiscal quarter and the results of
operations during such fiscal quarter and on a year to date
basis, which financial statement shall include, but shall not
be limited to, a balance sheet, income statement, and such
other matters as Lender may reasonably request;
(ii) As soon as available, and in any event within 45
days from the end of each fiscal quarter of Borrower, a
Compliance Certificate for such fiscal quarter, signed and
certified by an Authorized Officer of Borrower;
(iii) As soon as available, and in any event within
90 days from the end of Borrower's fiscal year, an audited
financial statement, prepared in a manner acceptable to
Lender, showing the financial condition of Borrower at the
close of its fiscal year on a consolidated and consolidating
basis and the results of its operations during such fiscal
year, which financial statement shall be materially complete
and correct and shall include, but shall not be limited to, an
income statement, a balance sheet, and such other matters as
Lender may request;
(iv) If requested by Lender, not less than 30 days
before the commencement of each fiscal year of Borrower, a
budget for that fiscal year for Borrower's operations,
prepared on a form and in detail satisfactory to Lender; and
(v) Within 30 days after the filing thereof, copies
of Borrower's and Guarantor's signed federal income tax
returns and all requests for the extension of time to the
filing thereof.
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(d) Promptly cure any defects in the execution and delivery of
the Loan Documents and immediately execute and deliver to Lender all
such other and further instruments as may be reasonably required by
Lender from time to time in order to satisfy or comply with the
covenants and agreements of Borrower made in this Agreement;
(e) Promptly reimburse Lender upon request for all reasonable
amounts expended, advanced, or incurred by Lender as are reasonably
necessary (i) to satisfy any obligation of Borrower under this
Agreement, (ii) to protect the assets or business of Borrower, (iii) to
collect the Notes, or any other amounts advanced under this Agreement
or otherwise on behalf of Borrower, or (iv) to enforce the rights of
Lender under the Loan Documents, which amounts will include, without
limitation, all reasonable court costs, attorneys' fees, and fees of
auditors, accountants, and investigators incurred by Lender in
connection with any such matters, together with interest at the
Maximum Rate on each such amount from 30 days after the date of
notification to Borrower that the same was expended, advanced or
incurred by Lender until the date it is repaid to Lender;
(f) Without in any way limiting any term or provision of the
Leasehold Deed of Trust and the Second Lien Leasehold Deed of Trust,
continue to maintain insurance as required by Lender against such
liabilities, casualties, risks, and contingencies in such types and
amounts as is normal and customary for carrying on Borrower's business
(including, without limitation, casualty, workmen's compensation, and
business interruption insurance). As applicable, Lender shall be the
named loss payee on all such insurance. On the date hereof, at the
close of Borrower's fiscal year, and at any other time Lender may
request, Borrower will furnish Lender a summary of such insurance and,
if requested, will furnish Lender copies of the applicable policies.
The proceeds of any such policies insuring physical loss or damage
shall be used by Borrower either to repair the damaged property,
replace lost property, or prepay the outstanding balances of the Notes
(such payment to be applied in reverse order of maturities);
(g) Prosecute the construction of the Tenant Improvements with
diligence and continuity, in a good and workmanlike manner, and in
accordance with sound building and engineering practices, all
applicable laws and governmental requirements, the Loan Documents, and
the plans and specifications. Borrower shall complete construction of
the Tenant Improvements, and shall obtain a permanent unconditional
certificate of occupancy and all other permits, licenses, and approvals
for the occupancy, use and operation of the Tenant Improvements from
all applicable governmental authorities on or before the Conversion
Date,
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free and clear of all liens except for the liens granted in the Loan
Documents and the liens listed in Exhibit "B" to the Leasehold Deed of
Trust. With or without the request of Lender (which request by Lender
may be given at any time during or after the construction of the Tenant
Improvements), Borrower shall correct promptly (i) any material defect
in the Tenant Improvements, or (ii) any material departure from law or
governmental requirements;
(h) Cause all materials supplied for, or intended to be
utilized in the construction of the Tenant Improvements, but not yet
affixed to or incorporated into the Tenant Improvements on the Land, to
be stored on the Land with adequate safeguards as required by Lender to
prevent loss, theft, damage or commingling with other materials or
projects;
(i) Allow Lender (and its third party inspectors) to enter
upon the Improved Premises to inspect the Improved Premises, the
Property and any materials at any reasonable time with at least 24
hours prior notice (provided that no such notice shall be required
during the continuance of an Event of Default). Within 24 hours after a
request is made therefor, Borrower will furnish to Lender at any time
for inspection and copying all plans and specifications, shop drawings,
specifications, books and records, and other documents and information
required by Lender;
(j) Maintain at least $3,000,000.00 in Unencumbered Liquidity,
as reflected on its balance sheet, at all times prior to the date
Tenant takes possession of its leased premises, and begins paying rent,
under and as provided for in the M.D. ▇▇▇▇▇▇▇▇ Lease;
(k) Furnish to Lender (i) as soon as possible, and in any
event within 30 days after Borrower or a duly appointed administrator
of a Plan knows or has reason to know that any Reportable Event with
respect to any Plan has occurred, a statement of the chief financial
officer of Borrower setting forth details as to such Reportable Event
and the action which Borrower proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event given to
the Pension Benefit Guaranty Corporation or a statement that said
notice will be filed with the annual report to the United States
Department of Labor with respect to such Plan, if such filing has been
authorized, and (ii) promptly after receipt thereof, a copy of any
notice Borrower may receive from the United States Department of Labor,
the Internal Revenue Service or the Pension Benefit Guaranty
Corporation with respect to any Reportable Event; and
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(l) In addition to, and without in any way limiting, the other
requirements in this Agreement, provide certain notices to Lender,
deliver to Lender, promptly upon any officer of Borrower having
knowledge of the occurrence of any of the following events or
circumstances, a written statement with respect thereto, signed by the
chief financial officer of Borrower, or other authorized representative
of Borrower designated from time to time pursuant to written
designation by Borrower delivered to Lender, advising Lender of the
occurrence of such event or circumstance and the steps, if any, being
taken by Borrower or any Guarantor with respect thereto:
(i) any Default or Event of Default;
(ii) any litigation or proceeding involving Borrower
or any Guarantor as a defendant or in which any Property of
Borrower or any Guarantor is subject, directly or indirectly,
to a claim, and the amount in controversy is in excess of
$250,000.00;
(iii) any Reportable Event or imminently expected
Reportable Event with respect to any Plan;
(iv) any change in the tax-exempt status of Borrower;
and
(v) any other event or occasion which could
reasonably be expected to cause a Material Adverse Change.
SECTION 6 - NEGATIVE COVENANTS
6.1 Negative Covenants of Borrower. So long as Borrower may borrow
additional advances hereunder and in accordance with the terms and provisions of
this Agreement and until payment in full of the Notes and performance of all
other Obligations of Borrower hereunder, Borrower covenants and agrees, unless
Lender shall otherwise consent in writing, that Borrower will not, either
directly or indirectly:
(a) (i) Create, incur, or assume any mortgage, pledge,
security interest, lien, or encumbrance on any of their respective
assets (now owned or hereafter acquired), except as specifically
disclosed in the Financial Statements, (ii) acquire or agree to acquire
assets under any conditional sale agreement or title retention
contract, or (iii) sell and leaseback any assets, except that the
foregoing restrictions shall not apply to:
(1) liens for taxes, assessments and other
governmental charges not yet due;
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(2) liens of vendors, carriers, warehousemen.
landlords, mechanics, laborers, and materialmen arising by law
in the ordinary course of business for sums not yet due or
being contested in good faith if reserve shall have been made
therefor as required by GAAP;
(3) pledges or deposits in connection with or to
secure worker's compensation, unemployment insurance, pensions
or other employee benefits;
(4) mortgages, vendor and other pledges, security
interests, liens, encumbrances, landlord's liens, or title
retention contracts existing as of the date of this Agreement
and disclosed to and approved by Lender in writing before the
date hereof;
(5) liens and security interests against assets and
property of Borrower which is not now or hereafter securing
the payment of any Note;
(6) liens and/or security interests required by this
Agreement;
(7) landlord's liens consented to by Lender;
(b) Permit cessation of work in connection with the
construction of the Tenant Improvements for a period in excess of ten
(10) days (whether or not consecutive), except for Excusable Delays;
(c) Sell, lease, transfer, convey, or otherwise dispose
(except in the ordinary course of business) of all or any of its assets
covered by and described in the Security Instruments;
(d) Change the general character of business as conducted as
of the date hereof or engage in any type of business not reasonably
related to its business as presently and normally conducted or is a
normal and logical extension thereof;
(e) Materially change accounting practices, methods, or
standards or the reporting format for any information furnished Lender
under the terms and provisions of this Agreement, which accounting
practices shall conform with GAAP throughout the term of this
Agreement;
(f) Permit the proceeds of the Notes to be used for any
purpose other than the purpose set forth in Section 3.1 of this
Agreement;
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(g) Enter into any transaction which materially and adversely
affects or may materially and adversely affect any of the collateral
securing the Obligations or Borrower's ability to repay the
Obligations;
(h) Own, purchase, or acquire (or enter into any contract to
purchase or acquire) any "margin security" as defined by any regulation
of the Federal Reserve Board as now in effect or as the same may
hereafter be in effect unless, prior to any such purchase or
acquisition or entering into any such contract, Lender shall have
received an opinion of counsel satisfactory to the effect that such
purchase or acquisition will not cause this Agreement to violate
Regulations U or X or any other regulation of the Federal Reserve Board
then in effect;
(i) Except for the service contract with Tenant which has been
approved in writing by Lender, enter into any management, leasing,
maintenance, service, or other contract pertaining to the Property that
is not unconditionally terminable by Borrower or any successor owner
without penalty or payment on not more than thirty (30) days notice to
the other party thereunder; and
(j) Use, or knowingly permit any Contractor or subcontractor
to use, any portion of the proceeds of any advance to pay the wages of
employees unless a portion of the proceeds or other funds are also used
to make timely payment to or deposit with the United States all amounts
of tax required to be deducted and withheld with respect to such wages
under the Internal Revenue Code, and to make timely payment to or
deposit with any local and/or state governmental authority or agency
having jurisdiction all amounts of tax required to be deducted and
withheld with respect to such wages under any applicable local and/or
state laws.
SECTION 7 - EVENTS OF DEFAULT
7.1 Events of Default. Each of the following shall constitute an Event
of Default under this Agreement:
(a) The failure to pay any fee or any payment under this
Agreement, the Notes, any of the other payment Obligations, or any of
the other Loan Documents within 10 days after written notice thereof
is provided by Lender to Borrower;
(b) A default or event of default by Borrower in the due
observance or performance of any of its obligations under this
Agreement and the other Loan Documents and such failure is not fully
cured within
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30 days after written notice thereof is provided by Lender to
Borrower; provided that such notice and cure period shall not be
required for any monetary Event of Default described in subsection (a)
or for any other Event of Default specifically enumerated in any other
subsection of this Section 7.1, the occurrence of any such event shall
in and of itself constitute an Event of Default;
(c) The failure of Borrower to fully and completely satisfy
the terms and conditions listed in Section 2.3 on or before the
Conversion Date;
(d) The failure of Borrower to comply with the requirements of
Section 3.11 or Section 5.1(j);
(e) Any representation or warranty made by Borrower in any of
the Loan Documents proves to have been untrue in any material respect
or any representation, statement (including Financial Statements),
certificate or data furnished or made to the Lender as an inducement
for Lender agreeing to enter in to this Agreement, or in accordance
with the terms of this Agreement, proves to have been untrue in any
material respect as of the date the facts therein set forth were stated
or certified;
(f) Cessation of the construction of the Tenant Improvements
continues for more than ten (10) days (whether or not consecutive),
except for Excusable Delays;
(g) The termination, cancellation, or expiration of any Ground
Lease, or any default by a Person in the performance of its obligations
under a Ground Lease which is not fully cured within any applicable
grace or cure period;
(h) The termination, cancellation, or expiration of the
Authorization Letter prior to the execution and delivery of the M.D.
▇▇▇▇▇▇▇▇ Lease or the termination, cancellation, or expiration of the
M.D. ▇▇▇▇▇▇▇▇ Lease at any time after its execution, or any default by
a Person in the performance of its obligations under the Authorization
Letter or the M.D. ▇▇▇▇▇▇▇▇ Lease which is not fully cured within any
applicable grace or cure period;
(i) The occurrence of an Event of Default under and as defined
in the Riverway Construction Loan Agreement;
(j) Construction of the Tenant Improvements, or any materials
for which an advance has been requested, fails to materially comply
with the plans and specifications, the Loan Documents, or any laws or
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governmental requirements and such failure is not fully cured within 30
days after Borrower first becomes aware of its existence (whether by
notice from Lender or otherwise);
(k) Construction of the Tenant Improvements is abandoned, or
Borrower fails to complete construction of the Tenant Improvements (and
obtain all applicable permits, licenses, and approvals) in accordance
with this Agreement on or before the Conversion Date;
(l) Any required permit, license, certificate or approval with
respect to the Improved Premises lapses or ceases to be in full force
and effect and such circumstance is not fully cured within 30 days
after Borrower first becomes aware of its existence (whether by notice
from Lender or otherwise);
(m) Additional Equity is not deposited with Lender in
accordance with Section 3.5;
(n) Construction is enjoined or Borrower or Lender is enjoined
or prohibited from performing the Loan Documents for a period of thirty
(30) days or more (whether or not consecutive);
(o) A default by Borrower (as principal or guarantor or other
surety) in the payment or performance of any bond, contract, debenture,
note, or other evidence of indebtedness owing by Borrower to any
supplier of equipment or utilities to the Property or to any other
holder of Debt secured by or relating to the Property, and such default
shall remain unremedied for in excess of the period of grace, if any,
with respect thereto;
(p) Borrower shall (i) apply for or consent to the appointment
of a receiver, trustee or liquidator of it or all or a substantial part
of its assets, (ii) file a voluntary petition commencing a bankruptcy
or other insolvency proceeding, (iii) make a general assignment for the
benefit of creditors, (iv) be unable, or admit in writing its
inability, to pay its debts generally as they become due, or (v) file
an answer admitting the material allegations of a petition filed
against it in a bankruptcy or other insolvency proceeding;
(q) An order, judgment, or decree shall be entered against
Borrower by any court of competent jurisdiction or by any other duly
authorized authority, on the petition of a creditor or otherwise,
granting relief in a bankruptcy or other insolvency proceeding or
approving a petition seeking reorganization or an arrangement of its
debts or appointing a receiver, trustee, conservator, custodian or
liquidator of it
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or all or any substantial part of its assets and such order, judgment
or decree shall not be dismissed or stayed within 90 days;
(r) The levy against any significant portion of the property
of Borrower (including, without limitation, Borrower's leasehold
interest in the Property) or any execution, garnishment, attachment,
sequestration, or other writ or similar proceeding which is not
permanently dismissed or discharged within 90 days after the levy;
(s) A final and non-appealable order, judgment or decree,
which is uninsured in an amount in excess of $250,000.00, shall be
entered against Borrower, and either such order, judgment or decree
shall not be paid, dismissed, or stayed within 90 days or an abstract
of judgment shall be filed in ▇▇▇▇▇▇ County, Texas;
(t) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Internal
Revenue Code) involving any Plan; any "accumulated funding deficiency"
(as defined in Section 302 of ERISA), whether or not waived, shall
exist with respect to any Plan for which an excise tax is due or would
be due in the absence of a waiver; a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion
of the Lender, likely to result in the termination of such Plan for
purposes of Title IV of ERISA; any Single Employer Plan shall terminate
for purposes of Title IV of ERISA; the Borrower, or any Affiliate shall
incur, or in the reasonable opinion of the Lender, be likely to incur
any liability in connection with a withdrawal from, or the insolvency
or reorganization of, a multi-employer plan; or any other event or
condition shall occur or exist with respect to a Plan and the result of
such events or conditions referred to in this subsection (j) could
subject the Borrower, or any Affiliate to any tax (other than an excise
tax under Section 4980 of the Internal Revenue Code), penalty or other
liabilities which taken in the aggregate would have an adverse effect
on Borrower and any such circumstance shall exist for in excess of 90
days;
(u) Cessation of a substantial part of the business of
Borrower for a period which significantly affects Borrower's capacity
to continue its particular business; or Borrower shall suffer the loss
or revocation of any license or permit now held or hereafter acquired
by Borrower which is necessary to continue the lawful operation of this
particular business; or Borrower shall be enjoined, restrained, or in
any way prevented by
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court, governmental, or administrative order from conducting all or any
material part of its respective business affairs;
(v) Borrower or any Affiliate shall challenge or contest in
any action, suit, or proceeding the validity or enforceability of this
Agreement or any of the other Loan Documents, the legality or
enforceability of any of the Obligations or the perfection or priority
of any lien or security interests granted to Lender;
(w) Borrower or any Affiliate shall be criminally indicted or
convicted under any law that could lead to a forfeiture of any material
portion of the property of Borrower, any Affiliate, or any of the
Guarantors;
(x) Borrower shall fail to comply in any material respect with
any order, decree, ruling, or plan issued by the Environmental
Protection Agency or any other Governmental Authority relating to the
property of Borrower or otherwise, and which order, decree, ruling, or
plan is not reversed or Borrower's obligations with respect thereto are
not otherwise discharged within 90 days after the entry thereof;
(y) Borrower shall have (i) concealed, removed, or diverted,
or permitted to be concealed, removed, or diverted, any part of its
property, with intent to hinder, delay or defraud its creditors or any
of them; (ii) made or suffered a transfer of any of its property which
may be fraudulent under any bankruptcy, fraudulent conveyance or
similar law; or (iii) shall have suffered or permitted, while
insolvent, any creditor to obtain a lien upon any of their respective
property through legal proceedings or otherwise which is not vacated
within 90 days from the date thereof; and
(z) The liens and/or security interests granted in any
Security Instrument shall not constitute a first and prior lien and/or
security interest upon the collateral described therein, except as
otherwise disclosed to and agreed by Lender in writing, or as a result
of the failure of Lender to file a continuation statement in a timely
manner (provided that Borrower in any event shall provide all documents
required by Lender to reinstate as a first security interest any such
lapsed filing).
SECTION 8 - RIGHTS AND REMEDIES OF LENDER
8.1 Remedies. Upon the occurrence of an Event of Default, Lender may,
at its election, but without any obligation to do so, and without presentment,
protest, notice of protest, any notice of intent to accelerate, notice of
acceleration, or any other
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notice, declaration, or demand of any kind (which notices and demands are each
specifically waived hereby by Borrower), do any one or more of the following:
(a) at Lender's option and without any notice of intent to
accelerate, notice of acceleration, or other notice or demand, declare
the entire principal amount of the Notes then outstanding and the
interest accrued thereon immediately due and payable, and the said
entire principal, interest and all other amounts owing thereunder shall
thereupon become immediately due and payable without presentment,
demand, protest, notice of protest or other notice of default or
dishonor of any kind, all of which are hereby expressly waived by
Borrower;
(b) terminate its commitment to lend and any obligation to
disburse any Additional Equity hereunder;
(c) reduce any claim to judgment;
(d) exercise any and all rights and remedies afforded by this
Agreement, the other Loan Documents, law, equity, or otherwise;
(e) set-off and apply, to the extent thereof and to the
maximum extent permitted by law, any and all deposits, funds, or
assets at any time held and any and all other indebtedness at any time
owing by Lender to or for the credit or account of Borrower against any
liability owing by Borrower to Lender; or
(f) in its own name or in the name of Borrower, enter into
possession of the Property, perform all work necessary to complete the
construction of the Tenant Improvements substantially in accordance
with the plans and specifications (as modified as deemed necessary by
Lender), Loan Documents, laws, and governmental requirements, and
continue to employ any Contractors pursuant to the applicable contracts
or otherwise.
8.2 Attorney-in-Fact. Borrower hereby appoints Lender as the
attorney-in-fact of Borrower, which power of attorney is irrevocable and coupled
with an interest, with full power of substitution and in the name of Borrower,
if Lender elects to do so, upon the occurrence of an Event of Default, to
(without any obligation to do so):
(a) use such sums as are necessary, including any proceeds of
the Construction Loan and any Additional Equity, make such changes or
corrections in the plans and specifications and employ such architects,
engineers, and Contractors as may be required for the purpose of
completing the construction of the Tenant Improvements substantially in
accordance with the plans and specifications (as modified as deemed
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necessary by Lender), Loan Documents, laws and governmental
requirements, or as otherwise may be necessary or desirable for
purposes of completing such construction;
(b) execute all applications and certificates in the name of
Borrower which may be required for completion of construction of the
Tenant Improvements;
(c) endorse the name of Borrower on any checks or drafts
representing proceeds of any insurance policies, or other checks or
instruments payable to Borrower with respect to the Property;
(d) do every act with respect to the construction of the
Tenant Improvements which Borrower may do;
(e) prosecute or defend any action or proceeding incident to
the Property;
(f) cure any default or event of default under a Ground Lease,
the M.D. ▇▇▇▇▇▇▇▇ Lease, or the Riverway Construction Loan Agreement;
(g) request reimbursement from Tenant under the Authorization
Letter be paid directly to Lender for application to the Real Estate
Note, and in connection therewith, submit on behalf of Borrower all
invoices as other items required by the Authorization Letter (with the
understanding that Borrower shall remain obligated to perform all of
its obligations and commitments under the Authorization Letter arising
in connection with payment by Tenant thereunder);
(h) pay, settle, or compromise all bills and claims so as to
clear title to the Property; and
(i) take over and use all or any part of the labor, materials,
supplies and equipment contracted for, owned by, or under the control
of Borrower, whether or not previously incorporated into the Tenant
Improvements. Any amounts expended by Lender shall be a demand
obligation owing by Borrower to Lender.
SECTION 9 - MISCELLANEOUS
9.1 Other Loans. Borrower and Lender acknowledge and agree that in the
future, Borrower may apply for and Lender may agree to fund additional loans to
Borrower. Borrower and Lender agree that all existing and hereafter created
loans and other advances from Lender, or any of its predecessors or successors
in interest, to Borrower, whether or not such loans are particularly described
in this Agreement, as
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may be amended from time to time, shall constitute Obligations for purposes of
this Agreement and shall be subject to the terms, provisions, covenants, and
agreements set forth in this Agreement.
9.2 No Duty or Special Relationship. Borrower acknowledges that Lender
has no duty to Borrower with respect to the loan transactions set forth in this
Agreement except as expressly provided for in this Agreement and the other Loan
Documents, and acknowledge that no fiduciary, trust, or other special
relationship exists between Lender and Borrower.
9.3 Other Remedies Not Required. Borrower may be required to pay the
Notes in full without the assistance of any other party, or any collateral or
security for the Notes. Lender shall not be required to mitigate damages, file
suit, or take any action to foreclose, proceed against or exhaust any collateral
or security in order to enforce payment of the Notes.
9.4 NO CONTROL BY LENDER. BORROWER AGREES AND ACKNOWLEDGES THAT ALL
OF THE COVENANTS AND AGREEMENTS PROVIDED FOR AND MADE BY BORROWER IN THIS
AGREEMENT AND IN THE OTHER LOAN DOCUMENTS ARE THE RESULT OF EXTENSIVE AND
ARMS-LENGTH NEGOTIATIONS BETWEEN BORROWER AND LENDER. LENDER'S RIGHTS AND
REMEDIES PROVIDED FOR IN THIS AGREEMENT AND IN THE OTHER LOAN DOCUMENTS ARE
INTENDED TO PROVIDE LENDER WITH A RIGHT TO OVERSEE BORROWER'S ACTIVITIES AS THEY
RELATE TO THE LOAN TRANSACTIONS PROVIDED FOR IN THIS AGREEMENT, WHICH RIGHT IS
BASED ON LENDER'S VESTED INTEREST IN BORROWER'S ABILITY TO PAY THE NOTES AND
PERFORM THE OTHER OBLIGATIONS. NONE OF THE COVENANTS OR OTHER PROVISIONS
CONTAINED IN THIS AGREEMENT SHALL, OR SHALL BE DEEMED TO, GIVE LENDER THE RIGHT
OR POWER TO EXERCISE CONTROL OVER, OR OTHERWISE IMPAIR, THE DAY-TO-DAY AFFAIRS,
OPERATIONS, AND MANAGEMENT OF BORROWER; PROVIDED THAT IF LENDER BECOMES THE
OWNER OF ANY STOCK OF ANY ENTITY, WHICH ENTITY OWNS AN INTEREST IN BORROWER,
WHETHER THROUGH FORECLOSURE OR OTHERWISE, LENDER THEREAFTER SHALL BE ENTITLED TO
EXERCISE SUCH LEGAL RIGHTS AS IT MAY HAVE BY BEING A SHAREHOLDER OF SUCH ENTITY.
9.5 No Partnership. Nothing herein is intended, nor shall it be deemed
or construed as, to create a partnership, joint venture, or common interest in
profits or income between Borrower and Lender, or to make Lender in any way
responsible for the debts or losses of Borrower or with respect to the
collateral described in the Security Instruments. Borrower and Lender disclaim
any sharing of liabilities, losses, costs or expenses.
9.6 Representations and Warranties. All representations and warranties
of Borrower herein, and all covenants and agreements made by Borrower herein
made before the effective date of this Agreement, shall survive such date.
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9.7 Notice. All notices, demands, requests, and communications
permitted or required under this Agreement shall be in writing, may be
personally served or sent by telex (confirmed by telephone), telecopier
(confirmed by telephone), U.S. mail or any express mail service, and shall be
effective upon receipt, such receipt being deemed to occur 48 hours after its
deposit in the U.S. mail, postage prepaid or 24 hours after its transmission by
telex, telecopier or express mail service, as the case may be, addressed to the
individuals and addresses indicated below:
(a) If to Borrower:
Introgen Therapeutics, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
(b) If to Lender:
Compass Bank
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Any party may, by proper written notice to the other party, change the
individuals or addresses to which such notices shall thereafter be sent.
9.8 Assignment of Contracts and Plans. As additional security for the
payment of the Construction Loan, Borrower hereby transfers and assigns to
Lender, and grants a security interest in, all of Borrower's rights and
interest, but not its liability, in, under, and to all construction,
architectural, and design contracts to the extent same pertains to the Improved
Premises, and the plans and specifications, and agrees that all of the same
constitute a portion of the Mortgaged Property, as such term is defined in the
Leasehold Deed of Trust and the Second Lien Leasehold Deed of Trust. Borrower
represents and warrants that the copy of any contract furnished or to be
furnished to Lender is and shall be a true and complete copy thereof, that the
copies of the plans and specifications which may be delivered to Lender will be
true and complete copies of the plans and specifications, that there have been
no modifications thereof which are not fully set forth in the copies delivered,
and that Borrower's interest therein is not subject to any claim, setoff, or
encumbrance. Neither this assignment nor any action by Lender shall constitute
an assumption by Lender of any obligation under any contract or with respect to
the plans and specifications, and Borrower shall continue to be liable for all
obligations of Borrower with respect thereto, Borrower hereby agreeing to
perform all of its obligations under any contract. Lender shall have the right
at any time (but shall have no obligation) to take in its name or in the name of
Borrower such action Lender may determine
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necessary to cure any default under any contract or with respect to the plans
and specifications or to protect the rights of Borrower or Lender with respect
thereto. Lender shall incur no liability if any action so taken by it or on its
behalf shall prove to be inadequate or invalid. Borrower indemnifies and holds
Lender harmless against and from any loss, cost, liability or expense
(including, but not limited to, attorneys' fees and expenses) incurred in
connection with Borrower's failure to perform such contracts or any action taken
by Lender. Lender may use the plans and specifications for any purpose relating
to the Tenant Improvements. Borrower irrevocably constitutes and appoints Lender
as Borrower's attorney-in-fact, which power of attorney shall be irrevocable and
coupled with an interest, in Borrower's name or in Lender's name to enforce all
rights of Borrower under any contract or with respect to the plans and
specifications.
9.9 Binding Effect. All covenants and agreements of Borrower under this
Agreement shall bind the respective successors and assigns of Borrower and shall
inure to the benefit of Lender and its successors and assigns. The rights of
Borrower under this Agreement are not assignable.
9.10 Inconsistencies and Conflicts. To the extent any irreconcilable
conflicts or inconsistencies exist between the terms of this Agreement and any
of the other Loan Documents, the terms of this Agreement shall govern and
control.
9.11 Renewal of Indebtedness. All provisions of this Agreement relating
to the Notes shall apply with equal force and effect to each and all promissory
notes hereafter executed which in whole or in part represent a renewal,
extension or rearrangement of any part of the indebtedness originally
represented by the Notes, or either of them, provided that nothing herein shall
constitute a commitment or offer by Lender to such a renewal, extension or
rearrangement.
9.12 No Waiver. No course of dealing on the part of Lender, its
officers or employees, nor any failure or delay by Lender with respect to
exercising any of its rights, remedies, powers or privileges under the Loan
Documents shall operate as a waiver thereof. No indulgence by Lender, or waiver
of compliance with any of the terms, covenants, or provisions of the Loan
Documents, shall be construed as a waiver of Lender's right to subsequently
require strict performance by Borrower and any other Person of the Loan
Documents. The rights and remedies of Lender under the Loan Documents shall be
cumulative and the exercise or partial exercise of any such rights or remedies
shall not preclude the exercise of any other rights or remedies.
9.13 APPLICABLE LAW. EXCEPT AS OTHERWISE PROVIDED IN THE LOAN
DOCUMENTS, THE LOAN DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS MADE UNDER, AND
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY, THE LAWS OF THE STATE OF
TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA APPLICABLE TO TRANSACTIONS
WITHIN THE STATE OF TEXAS.
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9.14 Amendment. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
9.15 Future Advances. No advance under the Notes shall constitute a
waiver of any of the conditions of Lender's obligation to make further advances
nor, in the event Borrower is unable to satisfy any such condition, shall any
such waiver have the effect of precluding Lender from thereafter declaring such
inability to be a Default.
9.16 Severability. In the event any provision contained in any of the
Loan Documents shall, for any reason, be held invalid, illegal or unenforceable
in any respect, such provision shall be severed from the applicable Loan
Document, and such invalidity, illegality or unenforceability shall not affect
any other provision of the applicable Loan Document.
9.17 Lender's Discretion. All matters hereunder that require Lender's
discretion, (including, without limitation, whether Borrower has satisfied any
condition precedent), Lender shall use its sole and reasonable discretion,
except as otherwise provided for herein. Further, Lender may in its sole
discretion waive any of its rights with respect to a particular Event of
Default.
9.18 Entire Agreement. This Agreement and the documents referred to
herein embody the entire agreement with respect to the respective rights,
obligations, and liabilities of the Parties and supersedes all prior agreements
and understandings, if any, relating to the subject matter hereof. THIS
AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
9.19 Counterparts. This Agreement may be executed in two or more
counterparts, and it shall not be necessary that any one counterparts be
executed by all of the parties hereto. Each fully or partially executed
counterpart shall be deemed an original, but all such counterparts taken
together shall constitute but one and the same instrument.
9.20 Controlling Agreement. Borrower and Lender intend to conform
strictly to the applicable usury laws. All agreements between Lender and
Borrower (or any other party liable with respect to any indebtedness under this
Agreement and the other Loan Documents) are hereby limited by the provisions of
this Section which shall override and control all such agreements, whether now
existing or hereafter arising and whether written or oral. In no way, nor in any
event or contingency (including but not limited to prepayment, default, demand
for payment, or acceleration of the maturity of any obligation), shall the
interest contracted for, charged, or received under the
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Notes or otherwise exceed the Maximum Rate. If, from any possible construction
of any document, interest would otherwise be payable to Lender in excess of the
Maximum Rate, any such construction shall be subject to the provisions of this
section and such document shall be automatically reformed and the interest
payable to Lender shall be automatically reduced to the Maximum Rate, without
the necessity of execution of any amendment or new document. If Lender shall
ever receive anything of value which is characterized as interest under
applicable law and which would apart from this provision be in excess of the
Maximum Rate, an amount equal to the amount which would have been excessive
interest shall at the option of Lender, be refunded to Borrower or applied to
the reduction of the principal amount owing hereunder in the inverse order of
its maturity and not to the payment of interest. The right to accelerate
maturity of the Notes or any other indebtedness does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and Lender does not intend to charge or receive any unearned
interest in the event of acceleration. All interest paid or agreed to be paid
to Lender shall, to the extend permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full stated term (including any
renewal or extension) of such indebtedness so that the amount or interest on
account of such indebtedness does not exceed the Maximum Rate.
9.21 Business Loans. Borrower warrants and represents to Lender, and to
all other holders of any debt evidenced by the Notes, that the loan evidenced by
the Notes are and shall be for business, commercial, investment or other similar
purpose and not primarily for personal, family, household or agricultural use.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
INTROGEN THERAPEUTICS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
Vice President and Chief
Financial Officer
BORROWER
COMPASS BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
LENDER
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EXHIBIT "A"
DRAW REQUEST
Reference is here made to that certain Construction Loan Agreement (the
"Loan Agreement") dated July 24, 2000, wherein Compass Bank ("Lender") has
agreed to lend to Introgen Therapeutics, Inc. ("Borrower") up to the aggregate
sum indicated in item (a) below (Where the context permits, terms used herein
are as defined in the Loan Agreement).
Borrower hereby makes a request for advance to Lender, in accordance
with the terms and provisions of the Construction Loan Agreement, in the amount
indicated in item 1(d) below pursuant to the Construction Loan Agreement. In
connection therewith, before me, the undersigned authority, on this day
personally appeared Borrower, who, being by me first duly sworn, certifies as
follows:
1. The summary of advances to date is as follows:
a. Committed Sum $3,500,000.00(1)
b. Advances to Date $
---------------
c. Remaining Committed Sum $
---------------
d. This Request for Advance $
---------------
2. The amount of this request for advance includes payments due for
services actually acquired and delivered to the Project in connection with
construction of the Tenant Improvements pursuant to the Loan Agreement and is
for the following items in the Budget (all items should be supported by copies
of billing statements, vouchers, invoices, affidavits, releases, waivers and
other documents Lender may reasonably request from the parties named therein):
Item Amount Requested
---- ----------------
--------------- -------------------------
--------------- -------------------------
--------------- -------------------------
3. This request for advance is within the Budget under the Loan
Agreement, and, in the opinion of the undersigned, the unadvanced portion of the
Budget for all
----------
(1) Not to exceed the Maximum Authorized Amount Prior to Delivery of the
M.D. ▇▇▇▇▇▇▇▇ Lease.
A-i
49
items is sufficient to complete the Tenant Improvements pursuant to the plans
and specifications and other expenses in connection therewith.
4. I represent the Borrower and I am duly authorized to make this
affidavit and to execute and deliver the related request for payment.
5. All reports, statements, and other documentation heretofore or
herewith delivered by or on behalf of Borrower to Lender are substantially true
and correct and in all material respects what they purport and appear to be.
6. Attached is a summary of this Request for Advance, and if an advance
for hard costs is requested, also attached are AIA Document G-702 and G-703
(1992 Edition) forms executed by Borrower, all completed for the above amount
and period, together with all supporting documentation required by Lender's Loan
Agreement with Borrower for the Project, all of which are true and correct and
in all respects what they purport and appear to be.
7. The Borrower has not been served with any written notice that a lien
will be claimed for any amount unpaid for materials delivered, labor performed,
or services provided in connection with the properties, or any part thereof,
and, to the Borrower's knowledge, no valid basis exists for the filing of any
mechanic's or materialman's liens or claims with respect to all or any part of
the properties.
8. I understand that this affidavit is made for the purpose of inducing
Lender to advance funds to Borrower and for Borrower to make payments of such
funds as appropriate under the loan documents and that, in so lending funds or
making payment, Lender and Borrower will rely upon the accuracy of matters
stated in this affidavit.
9. All representations and warranties contained in the Loan Agreement
and the other Loan Documents are true and accurate in all material respects as
of the date of this request for advance, except as follows (if any):
10. An Event of Default or fact or condition which with notice, lapse
of time, or both exists (or would result from the advance herein requested),
except as follows (if any):
11. No part of the Land has been taken by eminent domain proceedings,
and Borrower has not received written notice of any proceedings or negotiations
therefor which are pending, except as follows (if any):
12. All previously disbursed Construction Loan funds have been
expended, or are being held in trust, for the sole purpose of paying Project
costs included in the Budget and previously incurred by Borrower as set forth in
previous request for advance; no part of said funds has been used for any other
purpose.
▇-▇▇
▇▇
▇▇. To the best of Borrower's knowledge, Borrower has previously or
concurrently disclosed to Lender all matters known to Borrower that are required
to be so disclosed under the Loan Documents.
14. All conditions precedent to Borrower's right to receive the
requested advance have been met in accordance with the terms of the Loan
Documents, except as follows (if any):
15. To the best of Borrower's knowledge, the amounts and percentages
set forth in this request for advance (including the Advance Request for Work
Completed summary and any AIA Document G-702 and G-703 submitted in connection
herewith) are true and correct.
16. Upon disbursement by Borrower of the funds advanced by Lender as
requested in this request for advance, all costs heretofore incurred by Borrower
in connection with the construction of the Tenant Improvements and which are due
and payable will be fully paid and satisfied.
17. To the extent required under the Loan Documents, all change orders
to the Plans and specifications have been submitted to Lender and all change
orders for which an advance is requested hereby have been consented to by
Lender.
18. All lien waivers or payment receipts required under the terms of
the Loan Documents for this request for advance have been submitted to Lender.
19. The construction of the Tenant Improvements is progressing in a
satisfactory manner so as to assure completion thereof on or before the
Conversion Date in accordance with the plans and specifications and the Loan
Documents.
20. Borrower agrees to notify Lender in writing immediately if the
matters certified herein will not be true and correct as of the time of the
requested advance, and the foregoing certifications shall be deemed made and
ratified as of the time of the advance unless Borrower so notifies Lender in
writing before that time.
21. As of the date hereof, Borrower has no claims, causes of action,
demands against Lender, or defenses or offsets to payment of the Construction
Loan or any other amounts due under the Loan Documents.
22. Borrower has undertaken all investigation necessary to make all of
the foregoing statements.
23. Lender's acceptance of this request for advance will in no way
operate as a waiver by Lender of any term, condition, covenant, or agreement
contained in the Loan Documents, or of Lender's right to enforce any term,
condition, covenant or agreement therein.
A-iii
51
EXECUTED as of the date first above written.
AFFIANT:
____________________________________
THE STATE OF TEXAS )
)
COUNTY OF _______ )
SUBSCRIBED AND SWORN BEFORE ME, on this ___ day of July, 2000, by
_______________________________.
____________________________________
Notary Public, State of Texas
RECEIVED, REVIEWED, AND APPROVED (THIS DRAW REQUEST AND THE ACCOMPANYING
DOCUMENTATION MAY BE SUBMITTED AS AN INVOICE FOR REIMBURSEMENT PURSUANT TO THE
TERMS OF THE LETTER DATED JUNE 22, 2000, FROM BORROWER AND ALL SUPPLEMENTS,
MODIFICATIONS, AND REPLACEMENTS THEREOF, WITHOUT DEDUCTION, SET_OFF, OR DECREASE
BY THE UNDERSIGNED)
THE UNIVERSITY OF TEXAS
M.D. ▇▇▇▇▇▇▇▇ CANCER CENTER
By: __________________________
Name: ________________________
Title: _______________________
▇-▇▇
▇▇
EXHIBIT "B"
DOWN DATE WAIVER AND SUBORDINATION
OF MECHANIC'S LIEN CLAIMS
THE STATE OF TEXAS )
)
COUNTY OF _______ )
The undersigned is an original Contractor or subcontractor who has
furnished labor and/or material ("Work") in the construction of improvements
upon real property owned by Introgen Therapeutics, Inc. ("Owner") located at
Suite 201 of the office building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in the City
of Houston, ▇▇▇▇▇▇ County, Texas, and described in Exhibit "A" which is attached
hereto and incorporated herein by reference (the "Property").
For work in connection with the Property, the undersigned:
o received $ _______________ through _____________, ____ ("Prior Down Date"),
o is owed $ _______________ through ____________, ____ ("Down Date"),
The undersigned (a) through the Prior Down Date, and (b) additionally,
upon receipt of the amount owed, through the Down Date:
1. Has been paid in full for all sums owed for work concerning the
Property;
2. Acknowledges complete satisfaction of, and forever waives and
releases, all claims of every kind against Owner or the Property, including but
not limited to all liens and claims of liens, which the undersigned may have as
a result of or in connection with the work;
3. Has represented and warranted and does hereby represent and warrant
that all persons or entities who have furnished labor and/or material to the
undersigned in connection with the work have been paid all amounts they are
owed; and
4. Agrees unconditionally to indemnify Owner and hold Owner harmless
against all liability, loss, cost or expense (including but not limited to
attorneys' fees) now or hereafter incurred, paid or suffered by or asserted
against Owner or the Property because of any claim or action by the undersigned,
or by any person or entity claiming by, through or under the undersigned, with
respect to the claims, liens and rights herein waived and released or arising
out of any breach or untruth of any representation herein made.
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53
In consideration of its funding of loan proceeds to be used to pay for
work furnished by the undersigned, the undersigned hereby agrees and
acknowledges for the benefit of ____________ that all mechanic's liens or rights
to the same now or hereafter owned or held by the undersigned are and shall be
subordinate and inferior to the lien of the deed of trust held by Lender on the
Property.
The person signing this document represents that he or she is duly
authorized to do so on behalf of the undersigned original Contractor or
subcontractor.
EXECUTED this ____ day of ________________, ____.
------------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
THE STATE OF TEXAS )
)
COUNTY OF _______ )
SUBSCRIBED AND SWORN BEFORE ME, on this ____ day of _______________, by
_______________________, ____________________ of and on behalf of
_______________________, a __________________ corporation.
------------------------------------
Notary Public, State of Texas
B-ii
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EXHIBIT "C"
FORM OF COMPLIANCE CERTIFICATE
This Report dated as of ____________, 19__, is prepared pursuant to
that certain Loan Agreement dated as of July 24, 2000 (the ("LOAN AGREEMENT")
between Introgen Therapeutics, Inc., a Delaware corporation ("Borrower"), and
Compass Bank ("LENDER"). Unless otherwise defined in this certificate,
capitalized terms shall have the meaning given to them in the Loan Agreement.
Borrower hereby certifies (a) that no Event of Default has occurred or
is continuing, and (b) all of the representations and warranties made by
Borrower in the Loan Agreement are true and correct in all material respects on
the date of this certificate as if made on this date.
I HEREBY CERTIFY THAT THE FOREGOING REPRESENTATIONS AND
STATEMENTS ARE TRUE AND CORRECT AS OF THE DATE HEREOF.
INTROGEN THERAPEUTICS, INC.,
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
C-i