UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of report (Date of earliest event reported): January 15, 2010
MACK-CALI
REALTY CORPORATION
(Exact
Name of Registrant as Specified in Charter)
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Maryland
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1-13274
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22-3305147
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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343
Thornall Street, Edison, New
Jersey, 08837-2206
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(Address
of Principal Executive
Offices) (Zip
Code)
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(732)
590-1000
(Registrant’s
telephone number, including area code)
MACK-CALI
REALTY, L.P.
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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333-57103
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22-3315804
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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343
Thornall Street, Edison, New
Jersey, 08837-2206
|
|
(Address
of Principal Executive
Offices) (Zip
Code)
|
(732)
590-1000
(Registrant’s
telephone number, including area code)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (
see
General
Instruction A.2. below):
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01 Entry
into a Material Definitive Agreement
On
January 15, 2010, Mack-Cali Realty, L.P. (the “Operating Partnership”) and
certain of its operating subsidiaries, modified and extended their $150 million
portfolio mortgage loan (the “Modified Mortgage Loan”) with The Prudential
Insurance Company of America (“Prudential”). In connection with the
Modified Mortgage Loan, VPCM, LLC, a wholly-owned subsidiary of the Virginia
Retirement System, joined Prudential as an additional lender under the Modified
Mortgage Loan (collectively, the “Lenders”).
The
Modified Mortgage Loan, which continues to be collateralized by seven properties
with an aggregate of approximately 2.0 million net rentable square feet of
office space, bears interest at a rate of 6.25% per annum and matures on January
15, 2017. For the initial 30 months of the Modified Mortgage Loan,
monthly interest only payments will be $781,250. Thereafter, combined
monthly principal and interest payments under the Modified Mortgage Loan will be
$923,576.
The
Modified Mortgage Loan is non-recourse to the Operating Partnership except for
customary exceptions including but not limited to such matters as intentional
misuse of funds, environmental conditions and material misrepresentations, and
the Operating Partnership has agreed, subject to certain conditions, to guaranty
repayment of up to $61.1 million of the principal amount of the Modified
Mortgage Loan.
Item
2.03 Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant
See Item 1.01 above.
Item
9.01 Financial
Statements and Exhibits.
(d) Exhibits
Exhibit
No.
Description
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10.1
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Amended
and Restated Master Loan Agreement dated as of January 15, 2010 among
Mack-Cali Realty, L.P. and Affiliates of Mack-Cali Realty Corporation and
Mack-Cali Realty, L.P., as Borrowers, Mack-Cali Realty Corporation and
Mack-Cali Realty L.P., as Guarantors, and The Prudential Insurance Company
of America and VPCM, LLC, as
Lenders.
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10.2
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Partial
Recourse Guaranty of Mack-Cali Realty, L.P. dated as of January 15, 2010
to The Prudential Insurance Company of America and VPCM,
LLC.
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10.3
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Form
of Amended, Restated and Consolidated Mortgage and Security Agreement and
Financing Statement dated as of January 15, 2010 by Mack-Cali Realty,
L.P., as Borrower, to The Prudential Insurance Company of America and
VPCM, LLC, as Mortgagees with respect to each of the collateral
properties.
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10.4
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Form
of Amended, Restated and Consolidated Promissory Note dated January 15,
2010 of Mack-Cali Realty, L.P. in favor of The Prudential Insurance
Company of America with respect to each of the collateral
properties.
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10.5
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Form
of Amended, Restated and Consolidated Promissory Note dated January 15,
2010 of Mack-Cali Realty, L.P. in favor of VPCM, LLC with respect to each
of the collateral properties.
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10.6
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Form
of Recourse Liabilities Guaranty dated January 15, 2010 of Mack-Cali
Realty Corporation and Mack-Cali Realty, L.P. to The Prudential Insurance
Company of America and VPCM, LLC with respect to each of the collateral
properties.
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10.7
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Form
of Amended and Restated Irrevocable Cross Collateral Guaranty of Payment
and Performance dated January 15, 2010 of the owners of the collateral
properties to The Prudential Insurance Company of America and VPCM, LLC
with respect to each of the collateral
properties.
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99.1
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Press
Release of Mack-Cali Realty Corporation dated January 19,
2010.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, each Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
MACK-CALI
REALTY CORPORATION
Dated: January
22,
2010 By:
/s/ Roger W. Thomas
Roger W. Thomas
Executive Vice President, General Counsel and Secretary
MACK-CALI REALTY, L.P.
By: Mack-Cali
Realty Corporation,
its general partner
Dated: January
22,
2010 By:
/s/ Roger W. Thomas
Roger
W. Thomas
Executive
Vice President, General Counsel and Secretary
EXHIBIT
INDEX
Exhibit
No.
Description
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10.1
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Amended
and Restated Master Loan Agreement dated as of January 15, 2010 among
Mack-Cali Realty, L.P. and Affiliates of Mack-Cali Realty Corporation and
Mack-Cali Realty, L.P., as Borrowers, Mack-Cali Realty Corporation and
Mack-Cali Realty L.P., as Guarantors, and The Prudential Insurance Company
of America and VPCM, LLC, as
Lenders.
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10.2
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Partial
Recourse Guaranty of Mack-Cali Realty, L.P. dated as of January 15, 2010
to The Prudential Insurance Company of America and VPCM,
LLC.
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10.3
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Form
of Amended, Restated and Consolidated Mortgage and Security Agreement and
Financing Statement dated as of January 15, 2010 by Mack-Cali Realty,
L.P., as Borrower, to The Prudential Insurance Company of America and
VPCM, LLC, as Mortgagees with respect to each of the collateral
properties.
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10.4
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Form
of Amended, Restated and Consolidated Promissory Note dated January 15,
2010 of Mack-Cali Realty, L.P. in favor of The Prudential Insurance
Company of America with respect to each of the collateral
properties.
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10.5
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Form
of Amended, Restated and Consolidated Promissory Note dated January 15,
2010 of Mack-Cali Realty, L.P. in favor of VPCM, LLC with respect to each
of the collateral properties.
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10.6
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Form
of Recourse Liabilities Guaranty dated January 15, 2010 of Mack-Cali
Realty Corporation and Mack-Cali Realty, L.P. to The Prudential Insurance
Company of America and VPCM, LLC with respect to each of the collateral
properties.
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10.7
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Form
of Amended and Restated Irrevocable Cross Collateral Guaranty of Payment
and Performance dated January 15, 2010 of the owners of the collateral
properties to The Prudential Insurance Company of America and VPCM, LLC
with respect to each of the collateral
properties.
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99.1
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Press
Release of Mack-Cali Realty Corporation dated January 19,
2010.
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Exhibit
10.1
AMENDED
AND RESTATED
MASTER
LOAN AGREEMENT
among
MACK-CALI REALTY, L.P.
,
a Delaware limited
partnership, and
AFFILIATES OF
MACK-CALI REALTY
CORPORATION
,
a
Maryland corporation, and
MACK-CALI REALTY, L.P.
,
a Delaware limited partnership, as listed on
Exhibit A
hereto, collectively, as Borrowers
and
MACK-CALI REALTY
CORPORATION
,
a
Maryland corporation, and
MACK-CALI REALTY, L.P.
,
a Delaware limited partnership, as Guarantors
and
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
, and
VPCM,
LLC
, as Lender
Dated as
of January 15, 2010
AMENDED AND RESTATED MASTER
LOAN AGREEMENT
THIS
AMENDED AND RESTATED MASTER LOAN
AGREEMENT
is made as of January 15, 2010, by and among
MACK-CALI REALTY, L.P.
,
a Delaware limited
partnership (“MCRLP”), and
AFFILIATES OF
MACK-CALI REALTY
CORPORATION
,
a
Maryland corporation, and
MACK-CALI REALTY, L.P.
,
a Delaware limited partnership, as listed on
Exhibit A
hereto (individually, a “Borrower” and collectively, “Borrowers”),
MACK-CALI REALTY
CORPORATION
,
a
Maryland corporation (“MCRC”), and
MACK-CALI REALTY, L.P.
,
a Delaware limited
partnership (individually and collectively, “Guarantor”), and
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
, a New Jersey corporation (“Prudential”), and
VPCM, LLC
, a Virginia limited liability
company
(“VPCM”) (collectively, “Lender”).
RECITALS:
WHEREAS,
Prudential, and
Guarantor, Borrowers and affiliates of Borrowers entered into that certain
Amended and Restated Master Loan Agreement dated as of November 12, 2004
(the “Existing Loan Agreement”) relating to certain cross-collateralized and
cross-defaulted loans in the aggregate original principal amount of
$150,000,000.00 (the “Existing 2004 Loans”); and
WHEREAS,
as of the date
hereof, Prudential has assigned to VPCM a one half interest in and to the
Existing 2004 Loans; and
WHEREAS,
by that certain First
Mortgage Loan Application Nos. 706 108 235 - 706 108 241, dated
January 13, 2010 (the “Application”), Borrowers and Guarantor collectively
have applied for the extension of those certain loans under the Existing Loan
Agreement consisting of seven (7) individual loans (collectively, the “Loan”) in
the aggregate loan amount of $150,000,000.00 (the “Aggregate Loan Amount”);
and
WHEREAS,
Lender, by that
certain Loan Commitment Letter dated January _, 2010 (the “Commitment”),
has committed to provide the extension of such financing in accordance with the
Application; and
WHEREAS,
the Loan is, pursuant
to the terms of the Application, divided into seven (7) individual loans
comprised of the Existing 2004 Loans as amended hereby (each, sometimes herein
referred to as an “Individual Loan and collectively as the “Individual Loans”),
to be made by Lender each in the amounts set forth on
Exhibit B
attached hereto and made a part hereof; and
WHEREAS,
as set forth on
Exhibit B
attached hereto and made a part hereof, the existing loan amounts of the
Existing 2004 Loans are reallocated among the cross-defaulted and
cross-collateralized Existing 2004 Loans, with a reallocation of loan amounts
among the new Individual Loans representing additional advances to certain
Borrowers and corresponding reductions of loan amounts to other Borrowers,
resulting in the new loan amounts for the Individual Loans as set forth on
Exhibit B
attached hereto; and
WHEREAS,
notwithstanding the
division of the Loan into seven (7) Individual Loans, certain terms, conditions
and provisions of the Application and with respect to the Individual Loans
relate to all of the Individual Loans in the aggregate, and the relationship of
all of the Individual Loans to each other, including, but not limited to,
provisions relating to cross-default between the Loans, cross-collateral issues
relating to certain of the Loans, release provisions (including restrictions
thereon and the requirement of repayment of Loan amounts outstanding in excess
of Individual Loan amounts in the event release of an Individual Property is
permitted), guaranty provisions and loan administration provisions (such terms
are herein referred to as the “Master Loan Terms”); and
WHEREAS,
all of the Borrowers
are Affiliates of each other and Guarantors are the sole beneficial owners of
each Borrower which is not also a Guarantor; and
WHEREAS,
the Loan is to be
secured by the Properties (as hereinafter defined) listed on
Exhibit A
attached hereto; and
WHEREAS,
notwithstanding that
the Loan is divided into seven (7) Individual Loans, Borrowers and Guarantor
acknowledge that Lender would not make any of the Individual Loans, or less than
all of the Individual Loans, pursuant to the provisions in the Application
relating to the Individual Loans, without making all seven (7) Individual Loans
in compliance with the terms of the Application and except in accordance with
all the provisions set forth in this Agreement; and
WHEREAS,
Borrowers acknowledge
that the provisions set forth in this Agreement and otherwise set forth in the
Loan Documents relating to cross-default, cross-collateralization and the other
Master Loan Terms have resulted in more favorable economic terms for each
Individual Loan to each individual Borrower, and that each Borrower would be
unable to receive financing in the amount, or at the interest rate provided in
the Notes, or otherwise under more favorable terms, than those set forth herein
and, therefore, there exists direct and valuable consideration for each
Borrower’s consent and agreement to the terms and provisions hereof;
and
WHEREAS,
Borrowers, Guarantor
and Lender hereby wish to set forth certain agreements with respect to the Loan
and the relationship between the Individual Loans, and to amend and restate the
Existing Loan Agreement in its entirety.
AGREEMENTS
NOW, THEREFORE
, Borrowers and
Guarantor, in consideration of the matters described in the foregoing Recitals,
which Recitals are incorporated herein and made a part hereof, and for other
good and valuable consideration, hereby agree as follows:
Section
1.
DEFINITIONS AND RULES OF
INTERPRETATION
.
The following terms shall have the
meanings set forth in this Section 1 or elsewhere in the provisions of this
Agreement referred to below:
“Affiliate”
means, with
respect to any Person (as hereinafter defined), (1) any other Person (as
hereinafter defined) directly or indirectly controlling, controlled by or under
common control with another Person, (2) any officer, director, partner or
trustee of such Person, or in any joint venture or other business association
with such Person, and (3) if such other Person is an officer, director,
partner, trustee, joint venturer or business associate, any other Person for
which such Person acts in any such capacity or who directs or controls the
actions of such Person in such capacity. The term “control” as used
in this definition shall include, as to any Person, the ownership of ten percent
(10%) or more of the legal or beneficial interest in such Person or the power to
direct the management and policies of such Person, whether through the ownership
of voting securities, by contract, or otherwise.
“Agreement”
means this Amended
and Restated Master Loan Agreement, including the Exhibits hereto.
“Application”
is defined in
the recitals hereto.
“Assignment of Rents”
or
“Assignments of Rents”
means
the Amended and Restated Assignments of Rents and Leases of even date herewith
from Borrowers to Lender pursuant to which Borrowers have assigned the Leases
and Rents as described therein.
“Borrowers”
means the
Borrowers listed on
Exhibit A
attached hereto and made a part hereof (and
“Borrower”
means any one of
the Borrowers listed thereon).
“Business Day”
means any day
which is not a Saturday, Sunday, or federal legal holiday, and on which banking
institutions in Newark, New Jersey are open for the transaction of
business.
“Cash Management Agreement”
means the Cash Management Agreements of even date herewith between Borrowers and
Lender.
“Clearing Bank Deposit Account
Control Agreement”
means the Clearing Bank Deposit Account Control
Agreements of even date herewith between Borrowers and Lender and Bank of
America, N.A.
“Collateral”
means all of the
property, rights and interests of Borrower which are or are intended to be
subject to the security interests, liens and mortgages created by the Security
Documents.
“Commitment”
is defined in the
recitals hereto.
“Covenant Breach”
is defined
in the Section 3.3 hereof.
“Credit Agreement”
is defined
in Section 7.
“Cross Collateral Guaranties”
means those certain Amended and Restated Irrevocable Cross Collateral Guaranties
of Payment of even date herewith executed by each Borrower.
“Debt Service Coverage”
means
the ratio, as reasonably determined by Lender in its sole discretion, calculated
by dividing (i) NOI by (ii) TADS.
“Dollars or $”
means dollars
in lawful currency of the United States of America.
“Event of Default”
is defined
in Section 9.
“First Mortgage”
or
“First Mortgages”
means the
first priority mortgages from Borrowers to Lender pursuant to which Borrowers
have conveyed the Properties as security for certain of the Obligations, namely,
for each Individual Property, Borrower has conveyed to Lender a first priority
Amended, Restated and Consolidated Mortgage and Security Agreement which secures
the Note applicable to such Individual Property.
“Guarantor”
is defined in the
preamble hereto.
“Guaranties”
means the
Recourse Carveout Guaranty and the Cross Collateral Guaranties.
“Individual Loans”
is defined
in the recitals hereto.
“Individual Property”
means
any one of the office projects and all Collateral associated therewith as
described on
Exhibit A
.
“
Limited Guaranties”
means each
of the Supplemental Guaranty Agreements executed and delivered by the
individuals and entities identified to Lender as of the date hereof, and from
time to time thereafter, by Mack-Cali Realty, L.P. (collectively the “Limited
Guarantors”), none of whom or which at any time shall be an owner or ground
lessee of any of the Properties (or of interests in any Borrower, except by
virtue of ownership of units of Mack-Cali Realty, L.P.), which Limited
Guarantors shall severally guarantee such portions of the Individual Loans as is
set forth in each Limited Guaranty entered into as of the Closing Date and from
time to time thereafter by each Limited Guarantor in favor of the Lender as any
of such loans or the Loan shall be amended, supplemented, modified or restated
(collectively, the “Limited Guaranties”). Notwithstanding anything
herein to the contrary, the Limited Guaranties may be amended, supplemented,
modified, restated or terminated and the identity of the Limited Guarantors may
be changed by Mack-Cali Realty, L.P. upon written notice to Lender.
“Leases”
means, collectively,
all present and future leases, licenses, and other agreements for the occupancy
of any spaces or areas within the buildings, structures and improvements located
in or on the Properties (or, as applicable, an Individual Property) which may be
in effect from time to time, and all amendments, modifications, extensions,
renewals, and assignments of any of the foregoing.
“Loan”
means the aggregate
$150,000,000.00 loan to Borrower made by Lender hereunder in the form of the
seven (7) Individual Loans to the applicable Borrowers and evidenced by the Loan
Documents.
“Loan to Value Ratio”
means
the ratio, as determined by Lender in its sole discretion, of (A) the
aggregate principal balance of all encumbrances against the Properties (or, as
applicable, an Individual Property) to (B) the fair market value of the
Properties (or, as applicable, such Individual Property).
“Loan Documents”
means this
Agreement, the Notes, the Security Documents, the Guaranties, the Limited
Guaranties and all other documents, instruments or agreements executed or
delivered by or on behalf of Borrower or the Guarantors in connection with the
Loan.
“Master Loan Terms”
is defined
in the recitals hereto.
“Maturity Date”
means
January 15, 2017.
“Mortgage”
or
“Mortgages”
means the First
Mortgages and the Second Mortgages.
“New Cingular Wireless”
means
New Cingular Wireless PCS, LLC, the sole tenant of the Individual Property known
as Mack-Cali Centre VII and the tenant of 52% of the space in Mack-Cali
Centre III.
“New Cingular Wireless Full Release
Rental”
means a minimum rental rate of not less than $10.00 per square
foot on an annual basis on a Triple Net Rent Basis.
“New Cingular Wireless Half Release
Rental”
means a minimum rental rate of not less than $8.00 per square
foot on an annual basis on a Triple Net Rent Basis, but less than the New
Cingular Wireless Full Release Rental.
“New Cingular Wireless Lease”
means the lease or leases to New Cingular Wireless of the New Cingular Wireless
Space in Mack-Cali Centre VII and Mack-Cali Centre III.
“New Cingular Wireless
Renewal”
means that certain renewal option (that is effective as of
January 1, 2014) in accordance with the provisions of the New Cingular
Wireless Lease with a minimum five year extended term at the rental rates
specified in the renewal option of the New Cingular Wireless Lease.
“New Cingular Wireless Renewal
Documents”
means (a) a certification from the applicable Borrower to
Lender, certifying that New Cingular Wireless has exercised its renewal option
in accordance with the provisions of the New Cingular Wireless Lease and that
the New Cingular Wireless Lease as so renewed is in full force and effect, along
with (b) a copy of the renewal notice fully executed by New Cingular
Wireless and (c) an estoppel certificate from New Cingular Wireless in the
form required by Lender in connection with closing of the Loan, but subject to
requirements of the New Cingular Wireless Lease, which estoppel certificate may
not disclose, and there may not exist any as of the date of, any uncured
defaults on the part of Borrower or New Cingular Wireless with respect to the
New Cingular Wireless Lease; all in form and substance reasonably acceptable to
Lender.
“New Cingular Wireless Replacement
Lease”
is defined in Section 3.4(d).
“New Cingular Wireless Replacement
Lease Requirements”
is defined in Section 3.4(d).
“New Cingular Wireless Space”
means the leasable area in the Individual Property known as Mack-Cali
Centre VII and 52% of the space in Mack-Cali Centre III.
“NOI”
means the gross annual
income realized from operations of the Properties (or, as applicable, an
Individual Property) for both the preceding and subsequent twelve (12) month
period after subtracting all necessary and ordinary operating expenses (both
fixed and variable) for both the preceding and subsequent twelve (12) month
period and applied to the applicable NOI covenants for each period (assuming for
expense purposes only that the Properties or such Individual Property is 95%
leased and occupied if actual leasing is less than 95%), including, without
limitation, utilities, administrative, cleaning, landscaping, security, repairs,
and maintenance, ground rent payments, management fee of no more than 4.00% of
gross income, and a reserve for replacement allowance of no less than
$0.20 psf, real estate and other taxes, assessments, insurance and ground
lease payments, but excluding deduction for federal, state and other income
taxes, debt service expense, depreciation or amortization of capital
expenditures, and other similar non-cash items. Gross income shall
not be anticipated for any greater time period than that projected for leases in
place and ordinary operating expenses shall not be
prepaid. Documentation of NOI and expenses shall be certified by an
officer of Borrower with detail satisfactory to Lender and shall be subject to
the approval of Lender.
“Notes”
means the Amended,
Restated and Consolidated Promissory Notes to be executed by applicable
Borrowers in favor of Lender in the amounts set forth on
Exhibit B
.
“Obligations”
means all
indebtedness, obligations and liabilities of Borrowers to Lender, individually
or collectively, under this Agreement or any of the other Loan Documents or in
respect of the Loan or the Notes, or other instruments at any time evidencing
any of the foregoing, together with all renewals, extensions and modifications
of the foregoing, whether existing on the date of this Agreement or arising or
incurred hereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise.
“Old Security”
is defined in
Section 6.
“Parent”
is defined in
Section 6(b).
“Partial Recourse Guaranty”
means that certain Partial Recourse Guaranty (Prentice Hall Space and New
Cingular Wireless Space) from MCRLP of even date herewith.
“Person”
or
“person”
means any individual,
general partnership, limited partnership, corporation, trust, limited liability
company, joint venture, unincorporated association, political subdivision or
governmental or quasi-governmental agency, or any other entity recognized as
legally distinct for any purpose.
“Prentice Hall”
means Prentice
Hall, Inc., the sole tenant of the Individual Property known as Mack-Cali Saddle
River.
“Prentice Hall Full Release
Rental”
means a minimum rental rate of not less than $12.00 per square
foot on an annual basis on a Triple Net Rent Basis.
“Prentice Hall Half Release
Rental”
means a minimum rental rate of not less than $9.00 per square
foot on an annual basis on a Triple Net Rent Basis, but less than the Prentice
Hall Full Release Rental.
“Prentice Hall Lease”
means
the lease to Prentice Hall of the Prentice Hall Space.
“Prentice Hall Renewal”
means
that certain renewal option (that is effective as of January 1, 2015) in
accordance with the provisions of the Prentice Hall Lease with a minimum five
year extended term at the rental rates specified in the renewal option of the
Prentice Hall Lease.
“Prentice Hall Renewal
Documents”
means (a) a certification from the applicable Borrower to
Lender, certifying that Prentice Hall has exercised its renewal option in
accordance with the provisions of the Prentice Hall Lease and that the Prentice
Hall Lease as so renewed is in full force and effect, along with (b) a copy
of the renewal notice fully executed by Prentice Hall and (c) an estoppel
certificate from Prentice Hall in the form required by Lender in connection with
closing of the Loan, but subject to requirements of the Prentice Hall Lease,
which estoppel certificate may not disclose, and there may not exist any as of
the date of, any uncured defaults on the part of Borrower or Prentice Hall with
respect to the Prentice Hall Lease; all in form and substance reasonably
acceptable to Lender.
“Prentice Hall Replacement
Lease”
is defined in Section 3.4(c).
“Prentice Hall Replacement Lease
Requirements”
is defined in Section 3.4(c).
“Prentice Hall Space”
means
the leasable area in the Individual Property known as Mack-Cali Saddle
River.
“Prepayment Premium”
means the
Prepayment Premium as defined in each Note.
“Properties”
means,
collectively, all of the Individual Properties (the office projects and all
Collateral associated therewith as described on
Exhibit A
).
“Real Estate Security”
means
“Properties” or “Individual Property”, as the context may require.
“Recourse Carveout Guaranty”
means that certain Amended and Restated Irrevocable Guaranty of Payment and
Performance (Recourse Carveout Items) executed by Guarantor with respect to all
of the Loans.
“Release”
and
“Releases”
a release or
releases of Properties from the applicable Mortgage or Mortgages in the manner
and upon compliance with the requirements, terms and conditions set forth in
Section 5.
“Release Property”
is defined
in Section 5.
“Release Price”
is defined in
Section 5.
“Rent Roll”
means a report
prepared by Borrower which lists all leases affecting the Premises which are in
full force and effect, and all other matters described on the rent roll attached
hereto as
Exhibit C
.
“Second Mortgage”
or
“Second Mortgages”
means the
second priority mortgages from Borrowers to Lender pursuant to which Borrowers
have conveyed the Properties as security for certain of the Obligations, namely,
for each Individual Property, Borrower has conveyed to Lender a second priority
Amended, Restated and Consolidated Second Priority Mortgage and Security
Agreement (Subordinate Mortgage to Secure Cross Collateral Guaranty) which
secures the Cross-Collateral Guaranty and the notes referenced therein and
guaranteed thereby (exclusive of the Note applicable to such Individual
Property).
“Security Documents”
means the
Mortgages, the Assignments of Rents, and any other documents securing the Loans,
including, without limitation, UCC-1 financing statements executed and delivered
in connection therewith.
“State”
means a state of the
United States of America.
“Substitute Collateral”
is
defined in Section 6.
“Substitute Collateral Owner”
is defined in Section 6(b).
“Substitution”
a substitution
or substitutions of collateral in the manner and upon compliance with the
requirements, terms and conditions set forth in Section 5.
“TADS”
means the aggregate
debt service payments for the given twelve (12) month period on the Loan in
which the calculation of NOI is being made.
“Tenants”
means, collectively,
the persons (other than Borrower or its predecessors in interest) who are
parties to any one or more Leases.
“Tied Properties”
is defined
in Section 5(i) below (Individual Properties known as Mack-Cali
Centre VII, Mack-Cali Centre III and Mack-Cali
Centre II).
“
Trigger Events”
shall include
any of the following: (a) a default under the Loan Documents, or
(b) if Borrower does not deliver to Lender or does not maintain and renew
the letter of credit (or cash deposit) as required by the provisions of
Section 3.
“
Triple Net Rent Basis”
shall
mean lease rental payments whereby a tenant makes both monthly base rental
payments to the landlord and the tenant is responsible, in addition, to pay for
all taxes, insurance, utilities, operating and maintenance costs. If,
for the purposes of the Loan, the rental under a lease is on another basis (such
as a gross rental basis whereby the landlord pays such costs), then the required
annual rental threshold for such lease must be “grossed up” to achieve the
necessary annual rental threshold on a Triple Net Rent Basis, after payment of
all expenses as aforesaid. The parties agree to cooperate and act
reasonably in calculating any gross up required if the renewal is on a gross
basis: for example, for a lease that requires $12 per square foot on a Triple
Net Rent Basis, with monthly payments, and with the tenant to pay for all taxes,
insurance, utilities, operating and maintenance costs, if those “taxes,
insurance, utilities, operating and maintenance costs” equal $2 psf annually,
then the “gross rent” would need to be $14, so that the landlord could pay the
$2 in expenses, and net the $12 in rent on a Triple Net Rent
Basis. For determination of the rental amount per square foot on an
annual basis, a lease shall be analyzed and averaged based on the total base
rental payments due over the currently effective term of the applicable lease
(not including unexercised extensions or renewals, or any portion of a rental
term after a termination option) less concessions (free rent and any other
discount, concession, payment, gift, allowance, payment or contribution), in
order to reflect the average effective rent paid and received over the term of
the lease (the entire term of occupancy, including free rent periods; initial
construction periods would not be included in the calculation of the term of
occupancy of a lease for calculation of the term of the lease or the averaging
of the rentals over such term). For example, if a 25,000 square foot
lease with a five year term provides for rent as follows: during year
one of $11.75 per square foot (with two month’s free rent), during year two of
$12.00 per square foot (with no free rent), during year three of $12.25 per
square foot (with no free rent), during year four of $12.50 per square foot
(with no free rent), and during year five of $12.75 per square foot (with one
month’s free rent), the total rent paid of $1,455,729.17 divided by 5 years
equals $291,145.83 or $11.65 per square foot.
Section
2.1.
Notes
.
The Loan shall be
evidenced by Notes, each dated as of the date hereof, payable to the order of
Lender, as set out on
Exhibit B
attached hereto.
Section
2.2.
Interest
on Loan
.
The Loan shall
bear interest and be payable as set forth in the Notes.
Section
2.3.
Parties
Liable for Repayment
.
Each Borrower
shall be liable for repayment of each Note executed by such Borrower in
accordance with the terms of each such Note and subject to all of the conditions
and limitations therein set forth. In addition, Guarantor shall be
liable for repayment of the Loan and the Notes as and to the extent set forth in
the Recourse Carveout Guaranty, subject to all of the conditions and limitations
therein set forth.
Section
2.4.
Cross
Collateral Provisions
.
Each Borrower and
Guarantor shall also be liable for repayment of each other Note executed by each
other Borrower in accordance with the terms of each Cross Collateral Guaranty
executed by each Borrower, subject to all of the conditions and limitations
therein set forth. Each First Mortgage secures each Note executed by
the Borrower executing such Mortgage, and, in addition, to evidence the
“cross-collateralization” of each Mortgage and each Individual Loan, each Second
Mortgage executed by a Borrower also secures the Cross Collateral Guaranty
executed by such Borrower.
Section
2.5.
Cross
Default
.
All of the
Mortgages and other Loan Documents shall be and are hereby cross-defaulted
between each other and between each Individual Loan, so that an Event of Default
under any one Individual Loan shall constitute an Event of Default under all
Individual Loans.
Section
2.6.
Post
Closing Undertakings
.
Guarantor and each of the applicable Borrowers shall commence and
complete the Post Closing Undertakings listed on
Exhibit D
attached hereto and made a part hereof, such undertakings to be completed on or
before such date as may be listed thereon.
Section
2.7.
Recourse
Provisions
.
Borrowers’ and Guarantor’s liability under the Loan and the Loan
Documents shall be limited as set forth in Paragraph 8 and Paragraph 9
of the Notes (and the liability under the Cross Collateral Guaranties shall be
limited as therein set forth or incorporated by reference), all of which terms
and provisions of such documents are incorporated herein by this
reference. Notwithstanding the foregoing, Borrower and MCRLP shall
each be liable for the “Recourse Guaranteed Amount”, if any, as such term is
defined in the Partial Recourse Guaranty. Borrower and MCRLP
acknowledge and agree that the Partial Recourse Guaranty and the recourse
liability for the Recourse Guaranteed Amount, and each of the terms set forth
above, have been reviewed and approved as acceptable to Borrower and MCRLP with
respect to the risk that either Prentice Hall fails to exercise the Prentice
Hall Renewal or New Cingular Wireless fails to exercise the New Cingular
Wireless Renewal, and that the terms of the Partial Recourse Guaranty are not,
and are not to be construed in any manner as, any penalty or punishment, but as
fair and reasonable terms to address the risk of such occurrences (which risks
are difficult to ascertain), and as the valid and binding contractual agreement
of Borrower and MCRLP with Lender regarding the recourse liability of Borrower
and MCRLP in the event of such occurrence, in consideration of which the
extension of the Loan on the terms set forth herein is based.
Section
2.8.
Co-Lending
.
Lender
collectively hereby advises Borrower that they have appointed Prudential
Mortgage Capital Company (“PMCC”) as their agent (the single agent for each of
Prudential and VPCM) for administration and servicing of this Loan as of the
date hereof, with Prudential Asset Resources, Inc. (“PAR”) acting as the
subservicer for PMCC (and, accordingly, the single sub-servicer for each of
Prudential and VPCM), subject to the rights of the Lender to change the
servicing of the Loan. In any event, Lender shall appoint one single
servicer (or shall designate one of the entities comprising Lender to act as
servicer) for all holders of the Loan (but without limiting the right to require
that all servicing deliveries be sent to all Lender parties for review
simultaneously), and, as set forth above, such servicer may be a sub-servicer of
the agent for the Lenders (such party is herein referred to as the “Single
Servicer”). Subject to the right to replace the Single Servicer,
Borrower shall be entitled to rely on consents, approvals, modifications and
agreements (“Approvals”) from the Single Servicer as if such Approvals have been
issued by Lender, and such Approvals from the Single Servicer shall be deemed to
be made by and binding upon Lender.
Section
2.9.
Confidentiality
(Loan Sales)
.
With respect to
Lender’s rights to sell, transfer or assign the Loan and Loan Documents or an
interest therein, Lender agrees with Borrower that, so long as no Event of
Default (or event which with the passage of time or the giving of notice or both
would be an Event of Default) has occurred and is continuing, before disclosing
any documents and information relating to the Loan to any proposed purchaser,
transferee or assignee, Lender shall first impose upon, or secure from, such
proposed purchasers, transferees or assignees, an agreement of confidentiality
with respect to any such disclosed documents and information not already
publicly available, such obligation to survive not less than a year from
disclosure.
Section
2.10.
Lender
Transferees
.
The following
capitalized terms used in this Section 2.9 shall have the following
definitions:
“Controlled
Affiliate”
with respect to any specified Person, any other Person
controlling, controlled by or under common control with such Person, where
“control” means (a) the ownership, directly or indirectly, in the aggregate
of more than fifty percent (50%) of the beneficial ownership interests of such
Person, and (b) the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ability to exercise voting power, by contract or
otherwise. Notwithstanding the foregoing, Prudential Financial, Inc.
or any Affiliate thereof, shall be deemed to be a Controlled Affiliate of
Prudential.
“Eligibility Requirements”
means, with respect to any Person, that such Person (a) has in its current
fiscal year an asset base of at least $300,000,000.00 (in name or under
management) and (except with respect to a pension advisory firm or similar
fiduciary) a net worth of at least $30,000,000.00, and (b) has had in each
of its three immediately preceding fiscal years an asset base of at least
$300,000,000.00 (in name or under management) and (except with respect to a
pension advisory firm or similar fiduciary) a net worth of at least
$30,000,000.00 (asset base and net worth in all cases to be determined in
accordance with generally accepted accounting principles, consistently
applied).
“Permitted Fund Manager”
shall
mean any Person that on the date of determination is (i) (A) a
Qualified Institutional Lender or (B) any other nationally-recognized
manager of investment funds investing in debt or equity interests relating to
commercial real estate, (ii) investing through a fund with committed
capital of at least $250,000,000 and (iii) not subject to a proceeding
relating to the bankruptcy, insolvency, reorganization or relief of
debtors.
“Qualified Institutional
Lender”
shall mean Prudential and VPCM and the following:
(a) a
Controlled Affiliate of Prudential or VPCM, or
(b) one
or more of the following:
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(i)
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an
insurance company, bank, savings and loan association, investment bank,
trust company, commercial credit corporation, pension plan, pension fund,
mutual fund, real estate investment trust, governmental entity or plan, or
“Qualified Institutional Buyer” as defined in Rule 144(A) of the United
States Securities and Exchange Commission, provided that any such Person
referred to in this
clause (i)
satisfies the Eligibility Requirements;
or
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(ii)
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an
investment fund, limited liability company, limited partnership or general
partnership in which a Permitted Fund Manager acts as the general partner,
managing member, or the fund manager responsible for the day to day
management and operation of such investment vehicle and provided that at
least 75% of the equity interests in such investment vehicle are owned,
directly or indirectly, by one or more entities that are otherwise
Qualified Institutional Lenders; or
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(iii)
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any
Qualified Institutional Lender that is acting in an agency capacity for a
syndicate of no more than three lenders, provided 100% of the committed
loan amounts or outstanding loan balance are owned by lenders in the
syndicate that are Qualified Institutional Lenders;
or
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(iv)
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an
institution substantially similar to any of the foregoing entities
described in clauses (i), (ii) or (iii) that satisfies the
Eligibility Requirements; or
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(c) any
Controlled Affiliate of any of the entities described in clause (b)
above.
With
respect to Lender’s rights to sell, transfer or assign the Loan and Loan
Documents, Lender agrees with Borrower that, so long as no Event of Default (or
event which with the passage of time or the giving of notice or both would be an
Event of Default) has occurred and is continuing, any purchaser from, or
transferee or assignee of, Lender shall be a Qualified Institutional
Lender. In addition, any Lender may pledge (a “
Pledge
”) its rights
to the Loan and Loan Documents to any entity which has extended a credit
facility to such Lender and that is a Qualified Institutional Lender (any such
entity, a “
Note
Pledgee
”), and Note Pledgee shall be permitted to exercise fully its
rights and remedies against the pledging Lender (and accept an assignment in
lieu of foreclosure as to such collateral), in accordance with applicable law
and this Agreement. Nothing set forth herein shall alter or impair
the existing rights of Lender to grant or issue Securities (as defined in the
Mortgage).
Section
3.
FINANCIAL
COVENANTS AND LETTER OF CREDIT
.
Section
3.1.
Financial
Covenant Definitions
.
All capitalized
terms used in this Section 3 shall have the following definitions, except
as otherwise expressly provided for or unless the context otherwise
requires:
“Acquired Indebtedness”
means
Indebtedness of a Person (i) existing at the time such Person becomes a
Subsidiary or (ii) assumed in connection with the acquisition of assets
from such Person, in each case, other than Indebtedness incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Indebtedness shall be deemed to be incurred on
the date of the related acquisition of assets from any Person or the date the
acquired Person becomes a Subsidiary.
“Annual Service Charge”
for
any period means the aggregate interest expense for such period in respect of,
and the amortization during such period of any original issue discount of,
Indebtedness of the Guarantor and its Subsidiaries.
“Commission”
means the
Securities and Exchange Commission, as from time to time constituted, created
under the Securities Exchange Act of 1934, or, if at any time after execution of
this instrument such commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties on such date.
“Consolidated Income Available for
Debt Service”
for any period means Earnings from Operations of the
Guarantor and its Subsidiaries plus amounts which have been deducted, and minus
amounts which have been added, for the following (without duplication):
(i) interest on Indebtedness of the Guarantor and its Subsidiaries,
(ii) provision for taxes of the Guarantor and its Subsidiaries based on
income, (iii) amortization of debt discount and deferred financing costs,
(iv) provisions for gains and losses on properties and depreciation and
amortization, (v) increases in deferred taxes and other non-cash items,
(vi) depreciation and amortization with respect to interests in joint
venture and partially owned entity investments, (vii) the effect of any
charge resulting from a change in accounting principles in determining Earnings
from Operations for such period, and (viii) amortization of deferred
charges.
“Earnings from Operations”
for
any period means net income excluding provisions for gains and losses on sales
of investments or joint ventures, extraordinary and non-recurring items, and
property valuation losses, as reflected in the consolidated financial statements
of the Guarantor and its Subsidiaries for such period determined in accordance
with GAAP.
“Encumbrance”
means any
mortgage, lien, charge, pledge or security interest of any kind.
“GAAP”
means generally
accepted accounting principles as used in the United States applied on a
consistent basis as in effect on December 31, 2008; provided that solely for
purposes of any calculation required by the financial covenants contained
herein, “GAAP” shall mean generally accepted accounting principles as used in
the United States on the date hereof, applied on a consistent
basis.
“Guarantor”
shall mean
Mack-Cali Realty, L.P., a Delaware limited partnership.
“Indebtedness”
of the
Guarantor or any Subsidiary means, without duplication, any indebtedness of the
Guarantor or any Subsidiary, whether or not contingent, in respect of:
(i) borrowed money or evidenced by bonds, notes, debentures or similar
instruments whether or not such indebtedness is secured by any Encumbrance
existing on property owned by the Guarantor or any Subsidiary,
(ii) indebtedness for borrowed money of a Person other than the Guarantor
or a Subsidiary which is secured by any Encumbrance existing on property owned
by the Guarantor or any Subsidiary, to the extent of the lesser of (x) the
amount of indebtedness so secured and (y) the fair market value of the
property subject to such Encumbrance, (iii) the reimbursement obligations,
contingent or otherwise, in connection with any letters of credit actually
issued or amounts representing the balance deferred and unpaid of the purchase
price of any property or services, except any such balance that constitutes an
accrued expense or trade payable, or (iv) any lease of property by the
Guarantor or any Subsidiary as lessee which is reflected on the
Guarantor’s consolidated balance sheet as a capitalized lease in accordance with
GAAP; and also includes, to the extent not otherwise included, any obligation by
the Guarantor or any Subsidiary to be liable for, or to pay, as obligor,
guarantor or otherwise (other than for purposes of collection in the ordinary
course of business), Indebtedness of another Person (other than the Guarantor or
any Subsidiary; it being understood that Indebtedness shall be deemed to be
incurred by the Guarantor or any Subsidiary whenever the Guarantor or such
Subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof; Indebtedness of a Subsidiary of the Guarantor existing prior to the
time it became a Subsidiary of the Guarantor shall be deemed to be incurred upon
such Subsidiary’s becoming a Subsidiary of the Guarantor; and Indebtedness of a
person existing prior to a merger or consolidation of such person with the
Guarantor or any Subsidiary of the Guarantor in which such person is the
successor to the Guarantor or such Subsidiary shall be deemed to be incurred
upon the consummation of such merger or consolidation; provided, however, the
term “Indebtedness” shall not include any such indebtedness that has been the
subject of an “in substance” defeasance in accordance with GAAP).
“Intercompany Indebtedness”
means Indebtedness to which the only parties are Borrower, Guarantor, and any
Subsidiary (but only so long as such Indebtedness is held solely by any of
Borrower, Guarantor, and any Subsidiary) that is subordinate in right of payment
under the Note.
“Person”
means any individual,
corporation, partnership, limited liability company, limited partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Subsidiary”
means, with
respect to any Person, any corporation or other entity of which a majority of
the voting power of the voting equity securities or the outstanding equity
interests of which are owned, directly or indirectly, by such
Person. For the purposes of this definition, “voting equity
securities” means equity securities having voting power for the election of
directors, whether at all times or only so long as no senior class of security
has such voting power by reason of any contingency.
“Total Assets”
as of any date
means the sum of (i) the Undepreciated Real Estate Assets and (ii) all
other assets of the Guarantor and its Subsidiaries determined in accordance with
GAAP (but excluding accounts receivable and intangibles).
“Total Unencumbered Assets”
means the sum of (i) those Undepreciated Real Estate Assets not subject to
an Encumbrance for borrowed money and (ii) all other assets of the
Guarantor and its Subsidiaries not subject to an Encumbrance for borrowed money,
determined in accordance with GAAP (but excluding accounts receivable and
intangibles).
“Undepreciated Real Estate
Assets”
as of any date means the cost (original cost plus capital
improvements) of real estate assets of the Guarantor and its Subsidiaries on
such date, before depreciation and amortization, determined on a consolidated
basis in accordance with GAAP.
“Unsecured Indebtedness”
means
Indebtedness which is not secured by any Encumbrance upon any of the properties
of the Guarantor or any Subsidiary.
Section
3.2.
Financial
Covenants
.
Borrowers and
Guarantor covenant and agree with Lender as follows:
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(i)
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The
Guarantor will not incur, and will not permit any Subsidiary to incur, any
Indebtedness, other than Intercompany Indebtedness, if, immediately after
giving effect to the incurrence of such additional Indebtedness and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Indebtedness of the Guarantor and its Subsidiaries on a
consolidated basis determined in accordance with GAAP is greater than 60%
of the sum of (without duplication) (A) the Total Assets of the Guarantor
and its Subsidiaries as of the end of the calendar quarter covered in the
Guarantor’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q,
as the case may be, most recently filed with the Commission, prior to the
incurrence of such additional Indebtedness, and (B) the purchase price of
any assets included in the definition of Total Assets acquired, and (C)
the amount of any securities offering proceeds received (to the extent
such proceeds were not used to acquire items included in the definition of
Total Assets or used to reduce indebtedness), by the Guarantor or any
Subsidiary since the end of such calendar quarter, including those
proceeds obtained in connection with the incurrence of such additional
Indebtedness.
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(ii)
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In
addition to the limitation set forth in subsection (i) of this Section,
the Guarantor will not, and will not permit any Subsidiary to, incur any
Indebtedness if the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge for the four consecutive fiscal
quarters most recently ended prior to the date on which such additional
Indebtedness is to be incurred shall have been less than1.5:1, on a PRO
FORMA basis after giving effect thereto and to the application of the
proceeds therefrom, and calculated on the assumption that (A) such
Indebtedness and any other Indebtedness incurred by the Guarantor and its
Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other
Indebtedness, had occurred at the beginning of such period; (B) the
repayment or retirement of any other Indebtedness by the Guarantor and its
Subsidiaries since the first day of such four-quarter period had been
repaid or retired at the beginning of such period (except that, in making
such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such
Indebtedness during such period); (C) in the case of Acquired Indebtedness
or Indebtedness incurred in connection with any acquisition since the
first day of such four-quarter period, the related acquisition had
occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such PRO
FORMA calculation; and (D) in the case of any acquisition or disposition
by the Guarantor or its Subsidiaries of any asset or group of assets since
the first day of such four-quarter period, whether by merger, stock
purchase or sale, or asset purchase or sale, such acquisition or
disposition or any related repayment of Indebtedness had occurred as of
the first day of such period with the appropriate adjustments with respect
to such acquisition or disposition being included in such PRO FORMA
calculation.
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(iii)
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In
addition to the limitations set forth in subsections (i) and (ii) of this
Section, the Guarantor will not, and will not permit any Subsidiary to,
incur any Indebtedness secured by any Encumbrance upon any of the property
of the Guarantor or any Subsidiary, whether owned as of the Closing Date
or thereafter acquired, if, immediately after giving effect to the
incurrence of such additional Indebtedness secured by an Encumbrance and
the application of the proceeds thereof, the aggregate principal amount of
all outstanding Indebtedness of the Guarantor and its Subsidiaries on a
consolidated basis which is secured by any Encumbrance on property of the
Guarantor or any Subsidiary is greater than 40% of the sum of (without
duplication) (A) the Total Assets of the Guarantor and its Subsidiaries as
of the end of the calendar quarter covered in the Guarantor’s Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
most recently filed with the Commission, prior to the incurrence of such
additional Indebtedness and (B) the purchase price of any assets included
in the definition of Total Assets acquired, and (C) the amount of any
securities offering proceeds received (to the extent such proceeds were
not used to acquire items included in the definition of Total Assets or
used to reduce Indebtedness), by the Guarantor or any Subsidiary since the
end of such calendar quarter, including those proceeds obtained in
connection with the incurrence of such additional
Indebtedness.
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(iv)
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The
Guarantor and its Subsidiaries may not at any time own Total Unencumbered
Assets equal to less than 150% of the aggregate outstanding principal
amount of the Unsecured Indebtedness of the Guarantor and its Subsidiaries
on a consolidated basis.
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(v)
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For
purposes of this Section 3, Indebtedness shall be deemed to be
“incurred” by the Guarantor or a Subsidiary whenever the Guarantor or such
Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
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Section
3.3.
Letter of
Credit
.
If at any time
during the term of the Loan, any of the covenants listed in Section 3.2
above are not met (a “Covenant Breach”), Borrowers and Guarantors shall provide
to Lender a letter of credit complying with the provisions hereof or a cash
deposit (which shall be held by Lender in an escrow account controlled by
Lender) as additional security for the Loan, which letter of credit (or cash
deposit) shall be delivered on or before five (5) days after the earlier to
occur of (y) Borrower becoming aware of such Covenant Breach or
(z) Lender’s delivery of written notice to Borrower that a Covenant Breach
exists. The letter of credit shall be satisfactory to Lender in form
and substance, shall be in the form attached hereto as
Exhibit E
,
and shall comply with the provisions in this Section 3.3
below.
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(i)
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The
letter of credit shall be drawn on a national bank satisfactory to
Lender.
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(ii)
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The
letter of credit shall have an initial term of at least twelve (12)
months.
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(iii)
|
The
letter of credit shall be in an amount equal to $61,125,000 (subject to
the provisions of Section 3.4
below).
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(iv)
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The
letter of credit shall be additional security for the Loan. In
addition to all other remedies to which Lender may be entitled upon an
occurrence of an Event of Default under the Loan Documents which is not
cured within any applicable cure period, if any, provided therein, Lender
shall also be entitled to draw upon the letter of credit for application
against the secured indebtedness (including Prepayment
Premium).
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(v)
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The
letter of credit shall be regularly renewed at least forty-five (45) days
prior to its expiration date and shall be drawn on a national bank
satisfactory to Lender; provided that in the alternative Borrower shall be
permitted to substitute a cash deposit (which shall be held by Lender in
an escrow account controlled by Lender) at least 45 days prior to such
expiration date (and Borrower may thereafter substitute for such cash a
letter of credit meeting the standards of Lender hereunder). If
Borrower is replacing the national bank that is the issuer of the letter
of credit, Borrower shall obtain Lender's written approval of such bank
prior to renewal of the existing letter of credit, such approval to be
given or withheld in Lender's sole discretion and within fifteen (15) days
after written notice from Borrower. In the event Lender
withholds its approval, the existing letter of credit shall be replaced
with a new letter of credit drawn on a national bank satisfactory to
Lender in its sole discretion and with an initial term of at least one (1)
year or Borrower may substitute a cash deposit for such letter of
credit. Failure so to renew or replace and renew the letter of
credit or replace such letter of credit with a cash deposit in accordance
with the provisions of this paragraph shall constitute an Event of Default
under the Loan Documents and shall entitle Lender (a) to draw upon
the letter of credit for application against the secured indebtedness
(including Prepayment Premium) and (b) to exercise any and all other
remedies it may have upon an Event of Default under the Loan Documents;
provided, however, that if the sole Event of Default is the failure to
renew such letter of credit or replace such letter of credit with a cash
deposit in accordance with the above provisions, then Lender’s exercise of
remedies under this clause (b) shall not commence until five (5) days have
expired after Lender’s delivery of written notice to Borrower of such
failure, and Borrower has continued to fail to renew such letter of
credit, or replace such letter of credit or substitute a cash deposit for
such letter of credit within such five (5) day
period.
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(vi)
|
In
the event that Lender determines, in its sole discretion, that there has
been an adverse change in the financial condition of the bank which has
issued the letter of credit, Lender shall have the right to require the
replacement of the letter of credit with a new letter of credit drawn on a
national bank satisfactory to Lender and with an initial term at least
equal to the remaining term of the existing letter of credit unless the
term of the existing letter of credit is less than one hundred twenty-one
(121) days. In the event the remaining term of the existing
letter of credit is less than one hundred twenty-one (121) days, then the
initial term of the replacement letter of credit shall be at least one (1)
year. Borrower shall have sixty (60) days after the date
written notice is sent from Lender to Borrower to deliver the replacement
letter of credit to Lender; provided that in the alternative Borrower
shall be permitted to substitute a cash deposit (which shall be held by
Lender in an escrow account controlled by Lender) within such sixty (60)
day period (and Borrower may thereafter substitute for such cash a letter
of credit meeting the standards of Lender hereunder); with respect
thereto, Borrower shall have the right to direct Lender in writing to draw
upon the existing letter of credit, and Lender agrees to do so within two
(2) business days of such request, and if Lender recovers under such
letter of credit within such sixty (60) day period, then Lender shall hold
the proceeds as the cash deposit in lieu of a Letter of Credit if there is
no Event of Default. Failure to replace the existing letter of
credit and deliver a new letter of credit in accordance with the
provisions of this paragraph or substitute a cash deposit for such letter
of credit shall entitle Lender (i) to draw upon the existing letter
of credit for application against the secured indebtedness (including
Prepayment Premium) at the expiration of said sixty-day period, and
(ii) to exercise any and all other remedies it may have upon an Event
of Default under the Loan Documents; provided, however, that if the sole
Event of Default is the failure to renew such letter of credit or replace
such letter of credit with a cash deposit in accordance with the above
provisions, then Lender’s exercise of remedies under this clause (ii)
shall not commence until five (5) days have expired after Lender’s
delivery of written notice to Borrower of such failure, and Borrower has
continued to fail to renew such letter of credit, replace such letter of
credit or substitute a cash deposit for such letter of credit within such
five (5) day period.
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(vii)
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Borrower
shall be responsible for and must pay all costs and expenses (including,
but not limited to, the fees and disbursements of Lender’s outside
counsel) for the preparation of the letter of credit agreement, review of
any materials and documents submitted in connection with any reductions in
or release of the letter of credit or cash deposits, and any modification
of the Loan Documents deemed necessary by
Lender.
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Section
3.4.
Letter of
Credit Reductions
.
Upon Borrower’s
written request and provided no default then exists under the Loan, Lender shall
consent to reductions in the letter of credit or cash deposit as
follows:
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(a)
|
If
Prentice Hall exercises the Prentice Hall Renewal in accordance with the
provisions of the Prentice Hall Lease, with a minimum five year extended
term, and such Prentice Hall Renewal is for a minimum rental rate equal to
or in excess of the Prentice Hall Full Release Rental, and Borrower
provides the Prentice Hall Renewal Documents to Lender in form and
substance reasonably acceptable to Lender, then, upon written request of
Borrower or Guarantor, Lender shall consent to a reduction of $42,000,000
in the letter of credit or cash deposit, as the case may be;
alternatively, if Prentice Hall exercises the Prentice Hall Renewal in
accordance with the provisions of the Prentice Hall Lease, with a minimum
five year extended term, and such Prentice Hall Renewal is for a minimum
rental rate within the parameters of the Prentice Hall Half Release
Rental, and Borrower provides the Prentice Hall Renewal Documents to
Lender in form and substance reasonably acceptable to Lender, then, upon
written request of Borrower or Guarantor, Lender shall consent to a
reduction of $21,000,000 in the letter of credit or cash deposit, as the
case may be;
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(b)
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If
New Cingular Wireless exercises the New Cingular Wireless Renewal in
accordance with the provisions of the New Cingular Wireless Lease, with a
minimum five year extended term, and such New Cingular Wireless Renewal is
for a minimum rental rate equal to or in excess of the New Cingular
Wireless Full Release Rental, and Borrower provides the New Cingular
Wireless Renewal Documents to Lender in form and substance reasonably
acceptable to Lender, then, upon written request of Borrower or Guarantor,
Lender shall consent to a reduction of $19,125,000 in the letter of credit
or cash deposit, as the case may be; alternatively, if New Cingular
Wireless exercises the New Cingular Wireless Renewal in accordance with
the provisions of the New Cingular Wireless Lease, with a minimum five
year extended term, and such New Cingular Wireless Renewal is for a
minimum rental rate within the parameters of the New Cingular Wireless
Half Release Rental, and Borrower provides the New Cingular Wireless
Renewal Documents to Lender in form and substance reasonably acceptable to
Lender, then, upon written request of Borrower or Guarantor, Lender shall
consent to a reduction of $9,562,500 in the letter of credit or cash
deposit, as the case may be;
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(c)
|
If
Prentice Hall does not renew the Prentice Hall Lease, then Lender will
consent to reductions in the letter of credit or cash deposit as set forth
below with respect to space leased in the Prentice Hall Space pursuant to
lease(s) complying with the following requirements (“Prentice Hall
Replacement Lease Requirements”):
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(i)
|
Each
lease (each, a “Prentice Hall Replacement Lease”) must be with a
third-party tenant reasonably satisfactory to Lender with credit
reasonably satisfactory to Lender, and for terms of no less than 60
months; such rentals shall be (y) for multi tenant buildings, on a
gross rental basis with monthly payments, and with tenants to pay for
their proportionate share of nonstructural repairs to their premises and
their pro rata share of all operating expenses, utilities, taxes,
insurance and common area maintenance costs in excess of the amount of
such costs for the base year, or, (z) for single tenant buildings, on
a triple net rent basis, with monthly payments, and with the tenant to pay
for all taxes, insurance, utilities, operating and maintenance costs; if
such Prentice Hall Replacement Lease is for a minimum rental rate equal to
or in excess of the Prentice Hall Full Release Rental, and Borrower
satisfies the conditions set forth below with respect thereto, then, upon
written request of Borrower or Guarantor, Lender shall consent to a
reduction of the letter of credit or cash deposit equal to $88.50 per
square foot for the Prentice Hall Space so leased by such Prentice Hall
Replacement Lease; alternatively, if such Prentice Hall Replacement Lease
is for a minimum rental rate within the parameters of the Prentice Hall
Half Release Rental, and Borrower satisfies the conditions set forth below
with respect thereto, then, upon written request of Borrower or Guarantor,
Lender shall consent to a reduction of the letter of credit or cash
deposit equal to $44.25 per square foot for the Prentice Hall Space so
leased by such Prentice Hall Replacement
Lease;
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(ii)
|
The
tenant under such Prentice Hall Replacement Lease must have accepted
possession of the demised premises, paying full rent (with no further free
rent provisions existing during the initial term of such Prentice Hall
Replacement Lease), and not otherwise in default or
bankruptcy;
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(iii)
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Borrower
shall deliver to Lender satisfactory evidence of the payment of all
leasing commissions for the initial term of such Prentice Hall Replacement
Lease (all of which must be paid in full, even if permitted to be paid out
over such initial term of such Prentice Hall Replacement Lease; or if not
paid in full, Borrower and the Recourse Parties shall be personally liable
for such unpaid amounts);
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(iv)
|
Borrower
must deliver to Lender a copy of the applicable Prentice Hall Replacement
Lease, and such Prentice Hall Replacement Lease must be in compliance with
the Loan Documents;
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(v)
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Borrower
must deliver to Lender (a) an endorsement to the title policy certifying
that there are no liens with respect to the Property (or, if the
endorsement would cost more than $500, a title checkdown or update
certifying the status of title from and after the date of the title policy
and identifying all matters of title including liens, all whether superior
or subordinate to the applicable Mortgage), and (b) certificates of
occupancy and other evidence satisfactory to Lender that evidencing that
(i) the tenant improvements required by such Prentice Hall Replacement
Lease have been completed in accordance with applicable laws and
ordinances and in a manner satisfactory to Lender and (ii) that all work
has been satisfactorily completed and paid for;
and
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(vi)
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Borrower
shall deliver to Lender an original estoppel certificate in form and
substance satisfactory to Lender, but subject to requirements of the
Lease, which estoppel certificate shall have been fully executed by such
tenant.
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(d)
|
If
New Cingular Wireless does not renew the New Cingular Wireless Lease, then
Lender will consent to reductions in the letter of credit or cash deposit
as set forth below with respect to space leased in the New Cingular
Wireless Space pursuant to lease(s) complying with the following
requirements (“New Cingular Wireless Replacement Lease
Requirements”):
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(i)
|
Each
lease (each, a “New Cingular Wireless Replacement Lease”) must be with a
third-party tenant reasonably satisfactory to Lender with credit
reasonably satisfactory to Lender, and for terms of no less than 60
months; such rentals shall be (y) for multi tenant buildings, on a
gross rental basis with monthly payments, and with tenants to pay for
their proportionate share of nonstructural repairs to their premises and
their pro rata share of all operating expenses, utilities, taxes,
insurance and common area maintenance costs in excess of the amount of
such costs for the base year, or, (z) for single tenant buildings, on
a triple net rent basis, with monthly payments, and with the tenant to pay
for all taxes, insurance, utilities, operating and maintenance costs; if
such New Cingular Wireless Replacement Lease is for a minimum rental rate
equal to or in excess of the New Cingular Wireless Full Release Rental,
and Borrower satisfies the conditions set forth below with respect
thereto, then, upon written request of Borrower or Guarantor, Lender shall
consent to a reduction of the letter of credit or cash deposit equal to
$57.50 per square foot for the New Cingular Wireless Space so leased by
such New Cingular Wireless Replacement Lease; alternatively, if such New
Cingular Wireless Replacement Lease is for a minimum rental rate within
the parameters of the New Cingular Wireless Half Release Rental, and
Borrower satisfies the conditions set forth below with respect thereto,
then, upon written request of Borrower or Guarantor, Lender shall consent
to a reduction of the letter of credit or cash deposit equal to $28.75 per
square foot for the New Cingular Wireless Space so leased by such New
Cingular Wireless Replacement
Lease;
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(ii)
|
The
tenant under such New Cingular Wireless Replacement Lease must have
accepted possession of the demised premises, paying full rent (with no
further free rent provisions existing during the initial term of such New
Cingular Wireless Replacement Lease), and not otherwise in default or
bankruptcy;
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(iii)
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Borrower
shall deliver to Lender satisfactory evidence of the payment of all
leasing commissions for the initial term of such New Cingular Wireless
Replacement Lease (all of which must be paid in full, even if permitted to
be paid out over such initial term of such New Cingular Wireless
Replacement Lease; or if not paid in full, Borrower and the Recourse
Parties shall be personally liable for such unpaid
amounts);
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(iv)
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Borrower
must deliver to Lender a copy of the applicable New Cingular Wireless
Replacement Lease, and such New Cingular Wireless Replacement Lease must
be in compliance with the Loan
Documents;
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(v)
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Borrower
must deliver to Lender (a) an endorsement to the title policy certifying
that there are no liens with respect to the Property (or, if the
endorsement would cost more than $500, a title checkdown or update
certifying the status of title from and after the date of the title policy
and identifying all matters of title including liens, all whether superior
or subordinate to the applicable Mortgage), and (b) certificates of
occupancy and other evidence satisfactory to Lender that evidencing that
(i) the tenant improvements required by such New Cingular Wireless
Replacement Lease have been completed in accordance with applicable laws
and ordinances and in a manner satisfactory to Lender and (ii) that all
work has been satisfactorily completed and paid for;
and
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(vi)
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Borrower
shall deliver to Lender an original estoppel certificate in form and
substance satisfactory to Lender, but subject to requirements of the
Lease, which estoppel certificate shall have been fully executed by such
tenant.
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Section
3.5.
Covenant
Cure
.
If at any time
during the term of the Loan, after any of the covenants listed above in
Section 3.2 have not been met and so Guarantor provides to Lender a letter
of credit or cash deposit as set forth above, and, thereafter, for four (4)
consecutive calendar quarters Borrower complies with all of the covenants listed
above in Section 3.2, then, so long as there is then no Event of Default
under the Loan Documents (or uncured event that with the passage of time or the
giving of notice, or both, would constitute an Event of Default), Borrower shall
be entitled, on written request to Lender, to the return of the letter of credit
or cash deposit.
Section
3.6.
Cash
Management
.
During the term
of the Loan and pursuant to such cash management and bank agreements acceptable
to Lender (consisting, as of the date hereof, of the Cash Management Agreement
and the Clearing Bank Deposit Account Control Agreement), all Property revenue
shall be paid directly by tenants and other payees to an account controlled by
Lender. Until the occurrence of any of the Trigger Events, such
revenue will be promptly forwarded to an account controlled by Borrower and
Borrower will pay all debt service, reserves and other payments required under
the Loan, including operating expenses of and other required payments with
respect to the Property. Upon the occurrence of a Trigger Event,
Lender will apply all of the Property revenue as set forth in the Cash
Management Agreement. In the event of the occurrence of a Trigger
Event and in the event that such Trigger Events have been “Cured” (as defined
below), then the Property revenue will be redirected to an account controlled by
Borrower and Borrower will pay all debt service, reserves and other payments
required under the Loan until such time as a new Trigger Event
occurs. A Trigger Event shall be deemed “Cured” if the following have
been satisfied: (i) the Loan is not then in default and given
the passage of time or the giving of notice would not be in default, and
(ii) the letter of credit or cash deposit required by this Section 3
has been delivered to Lender and is being maintained by Borrower in accordance
with the provisions of this Section 3.
Section
4.
COLLATERAL
.
Subject to
Section 5, Section 6 and Section 7 hereof, the Obligations shall
be secured by (i) a perfected first priority lien or security title to be
held by Lender in the Properties, pursuant to the terms of the First Mortgages,
and a perfected second priority lien or security title to be held by Lender in
the Properties, pursuant to the terms of the Second Mortgages, (ii) a
perfected first priority security interest to be held by Lender in the Leases
pursuant to the Assignments of Rents, (iii) an assignment of agreements
representing a first priority assignment to Lender of all agreements and other
documents relating to the ownership, development, operation, construction or use
of the Properties, and (iv) the other Security Documents and
Collateral.
Section
5.
RELEASE
OF PROPERTIES
.
Upon Borrower’s
written request which shall include all materials and information necessary to
evaluate such request, to be received with not less than thirty (30) days prior
notice, Lender shall release not more than two (2) Individual Properties
whose original allocated Individual Loan principal balances collectively do not
exceed $50,000,000.00 (except if the only release is as set forth in
subsection (i) below) from the lien of the Loan Documents (“Release
Property”), upon the following terms and conditions:
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(a)
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At
the time of the request and the time of the Release, there shall be no
Event of Default under the Loan Documents, and there shall exist no
condition or state of facts which with the passage of time or the giving
of notice or both, would constitute a default under the Loan Documents
(except for any such default relating solely to the Release Property
which, by its very nature, will be cured by the requested
Release).
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(b)
|
Any
such request may be made beginning six (6) months after the date hereof
and any such partial Release must occur prior to the last six (6) months
prior to the Maturity Date.
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(c)
|
Each
Release Property released shall be the entire Individual Property
identified with the applicable Individual
Loan.
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(d)
|
For
each Release Property, Borrower shall have made the “Release Price”
payment to Lender, in an amount equal to 110% of the principal balance of
the Individual Loan applicable to the Release Property, together with a
prepayment premium (based on the Release
Price).
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(e)
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The
Release Price shall be applied to pay in full the principal balance due
with respect to the Individual Loan applicable to the Release Property and
Borrower shall, in addition, pay all amounts due with respect to such
Release Price with respect to interest, prepayment premium and reasonable
costs and expenses. Lender shall apply the portion of any
Release payment which is in excess of the balance of the Individual Loan
applicable to the Release Property to any Individual Loan or Individual
Loans, in Lender’s sole discretion, and, upon Borrower’s written request,
Lender shall provide Borrower with Lender’s allocation of such amounts
thirty days prior to such Release or ten (10) days after such request, if
later.
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(f)
|
At
the time of the Release, the Debt Service Coverage, calculated with
respect to the remaining Properties (excluding the Released Property)
shall be equal to or greater than (i) the Debt Service Coverage with
respect to all of the Properties (including the Released Property)
immediately prior to such Release, and, in any event, (ii) 2.00 to
1.00. In the event the Debt Service Coverage of the remaining
Properties (as determined by Lender in its sole discretion) falls below
the required level, Borrower shall have the right, subject to payment of
the Prepayment Premium calculated in accordance with the provisions set
forth in the Notes, to pay Lender the amount necessary to increase the
Debt Service Coverage of the remaining Properties to the required
level.
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(g)
|
At
the time of the Release, the Loan to Value Ratio, calculated with respect
to the remaining Properties (excluding the Released Property), does not
exceed the lesser of (1) thirty seven percent (37%) or
(2) the Loan to Value Ratio of the entire Properties (including the
Released Property) immediately prior to such Release. In the
event the Loan to Value Ratio of the remaining Properties (as determined
by Lender in its sole discretion) exceeds the required level, Borrower
shall have the right, subject to payment of the Prepayment Premium
calculated in accordance with the provisions set forth in the Notes, to
pay Lender the amount necessary to reduce the loan to value ratio of the
remaining Properties to the required level. Provided, however,
if (i) the Prentice Hall Renewal for a minimum rental rate equal to
or in excess of the Prentice Hall Full Release Rental has occurred in
accordance with the requirements of Section 3.4(a) and the New
Cingular Wireless Renewal for a minimum rental rate equal to or in excess
of the New Cingular Wireless Full Release Rental has occurred in
accordance with the requirements of Section 3.4(b), or (ii) the
Prentice Hall Renewal for a minimum rental rate equal to or in excess of
the Prentice Hall Full Release Rental has occurred in accordance with the
requirements of Section 3.4(a) and all of the New Cingular Wireless
Space has been leased pursuant to New Cingular Wireless Replacement Leases
in accordance with the New Cingular Wireless Replacement Lease
Requirements for a minimum rental rate equal to or in excess of the New
Cingular Wireless Full Release Rental in accordance with the requirements
of Section 3.4(d), or (iii) the New Cingular Wireless Renewal
for a minimum rental rate equal to or in excess of the New Cingular
Wireless Full Release Rental has occurred in accordance with the
requirements of Section 3.4(b) and all of the Prentice Hall Space has
been leased pursuant to Prentice Hall Replacement Leases in accordance
with the Prentice Hall Replacement Lease Requirements for a minimum rental
rate equal to or in excess of the Prentice Hall Full Release Rental in
accordance with the requirements of Section 3.4(c), or (iv) all
of the Prentice Hall Space has been leased pursuant to Prentice Hall
Replacement Leases in accordance with the Prentice Hall Replacement Lease
Requirements for a minimum rental rate equal to or in excess of the
Prentice Hall Full Release Rental in accordance with the requirements of
Section 3.4(c), and all of the New Cingular Wireless Space has been
leased pursuant to New Cingular Wireless Replacement Leases in accordance
with the New Cingular Wireless Replacement Lease Requirements for a
minimum rental rate equal to or in excess of the New Cingular Wireless
Full Release Rental in accordance with the requirements of
Section 3.4(d), then the percentage listed in (g) (1) above shall be
increased from thirty seven percent (37%) to forty-two
(42%).
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(h)
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In
no event will Lender be required to release more than two (2) Individual
Properties in total during the term of the Loan (except as and only upon
the conditions set forth in (i) below), and, in addition, such releases
shall not exceed releases of property allocated to Loans comprising
$50,000,000.00 of the original principal balance of the
Loan.
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(i)
|
Unless
otherwise agreed to by Lender in its sole discretion, the Individual
Properties known as Mack-Cali Centre VII, Mack-Cali Centre III
and Mack-Cali Centre II (collectively, the “Tied Properties”) will
not be eligible for partial releases (if at such time any of the leases in
such Tied Properties have any right to expand into, or rights of refusal
or offer in, any building located on another Tied Property, unless such
rights been amended to terminate and eliminate such rights as a portion of
the contractual rights of such Lease, and to provide that the Tenant’s
recourse shall only be as a contractual right, of public record, with the
owner of such Tied Property that is to be released in such release),
unless all of such Properties are released at the same time (or
substituted as to some Tied Properties and released as to all the other
Tied Properties at such time), and provided that the aggregate balance of
all of the Loans is not less than $85,000,000.00 following such
Release. Under this provision Lender shall consent to the
Release of all three Tied Properties (Mack-Cali Centre VII, Mack-Cali
Centre III and Mack-Cali Centre II) if no other releases or substitutions
of previously occurred, but Lender, but Lender will not consent to any
additional Releases or Substitutions during the Loan
term.
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(j)
|
For
each Release Property requested to be released, Borrower shall pay to
Lender a release fee of $15,000.00 which shall be non-refundable and
payable to Lender at the time of request for
Release.
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(k)
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Borrower
shall pay to Lender all escrow, closing and recording costs including, but
not limited to, the cost of preparing and delivering any reconveyance
documentation and modification of the Loan Documents, including legal fees
and costs, the cost of any title insurance endorsements that Lender may
require, any expenses incurred by the Lender in connection with the
partial release, and any sums then due and payable under the Loan
Documents.
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(l)
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Such
other terms and conditions as Lender shall reasonably
require.
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Notwithstanding
anything to the contrary in this Section 5 and/or Section 6 regarding
Substitution of Collateral, Borrower shall only have the right to a combined
cumulative total (during the entire term of the Loan) of two (2) Releases and
Substitutions, except if the Release is in accordance with the conditions set
forth in subsection (i) of this Section 5 or if the Substitution is in
accordance with the conditions set forth in subsection (o) of
Section 6.
Section
6.
SUBSTITUTION
OF COLLATERAL
.
Notwithstanding
anything to the contrary contained in the Loan Documents, Borrower shall have
the right to request in writing that Lender accept additional real estate and
related personal property collateral (“Substitute Collateral”) in substitution
for one Individual Property and the related Personal Property Security (the “Old
Security”) to be released from the lien of the Loan Documents. Such
request may be made on not more than two (2) Individual Properties during the
Term of the Loan (except if the Release is in accordance with the conditions set
forth in subsection (o) below), and further, any such Substitution must occur
after six (6) months from the date hereof and prior to the last six (6) months
prior to the Maturity Date. Lender shall have the right to approve
any such Substitution in Lender’s sole discretion. Lender shall
advise Borrower as soon as practicable of Lender’s approval or disapproval of
any such Substitution of collateral; if such Substitution is
approved, Lender shall also advise Borrower of the conditions for such approval,
which shall include, without limitation, the following:
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(a)
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The
Substitute Collateral must consist of one or more legally separate parcels
of land owned in fee simple in the United States. The
Substitute Collateral shall be an office property and must be of similar
or better quality than the Old Security and must be satisfactory to Lender
in Lender’s sole discretion.
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(b)
|
Lender
must receive perfected first and exclusive liens, security interest and/or
security title on the Substitute Collateral, and the Loan for the
Substitute Collateral shall be cross collateralized and cross defaulted
with all the other Loans pursuant to the Loan Documents. The
ownership entity that owns the Substitute Collateral (the “Substitute
Collateral Owner”) shall be identical to that of the Individual Borrower
that owned the Old Security or if the Substitute Collateral Owner is not
the same as the Individual Borrower that owned the Old Security, then
(A) the Substitute Collateral Owner’s parent (the “Parent”) must own
100% of the Individual Borrower that owned the Old Security and 100% of
the Substitute Collateral Owner (provided that the Parent may have such
100% ownership through intermediate entities in the chain of ownership
between the Parent and the Individual Borrower and the Substitute
Collateral Owner, in which no other party other than such Parent, directly
or through such intermediate entities, holds any legal or beneficial
ownership interest), (B) if the Substitute Collateral is newly
acquired, the Substitute Collateral Owner, Individual Borrower of the Old
Security and the Parent (and any intermediate entities as aforesaid) shall
enter into an agreement, in form and substance satisfactory to Lender,
that shall provide that, among other things, the Parent would not have
provided the funds for the purchase of the Substitute Collateral had
Substitute Collateral Owner not agreed to assume the obligations under the
Loan Documents, (C) Lender shall be satisfied, in its sole
discretion, that the assumption of the obligations under the Loan
Documents by the Substitute Collateral Owner shall not render the
Substitute Collateral Owner insolvent or leave the Substitute Collateral
Owner with unreasonably small capital, (D) Lender shall be satisfied,
in its sole discretion, that the Loan, the collateral for the Loan, and
the structure of the Loan will not be materially impaired as a result of
such substitution, and (E) the Substitute Collateral Owner shall
expressly assume all obligations under the Loan Documents and shall
execute any documents reasonably required by Lender, and all of these
documents shall be satisfactory in form and substance to
Lender.
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(c)
|
The
Substitute Collateral must comply with Lender’s then current underwriting
and other requirements in all respects, including, without limitation,
loan documents, title, survey, compliance with zoning, building,
environmental and land use laws, construction and engineering, insurance,
leases, real estate taxes, legal opinions, estoppel certificates and all
other terms and conditions.
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(d)
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The
NOI from the Substitute Collateral shall equal or exceed the NOI from the
Old Security, calculated as of the date of the Substitution, and Lender
shall have no reason to reasonably believe that such NOI from the
Substitute Collateral will not be continued for the next succeeding
twenty-four (24) months, and the fair market value of the Substitute
Collateral shall equal or exceed the fair market value of the Old Security
(as of the Substitution date), as determined by Lender in its sole
discretion, absent manifest error. In the event the NOI of the
Substitute Collateral (as determined by Lender in its sole discretion)
falls below the required level, Borrower shall have the right, subject to
payment of the prepayment premium calculated in accordance with the
provisions set forth in the Notes, to pay Lender the amount necessary to
decrease the Debt Service of the remaining Properties to meet the other
conditions of this Section 6.
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(e)
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The
location (including, without limitation, the character and demographics of
the market area) of the Substitute Collateral shall be satisfactory to
Lender in Lender’s sole discretion. The consent of Lender to
the Substitution of Collateral is expressly made subject to Lender’s
analyses and approval of the economic trends affecting the Substitute
Collateral.
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(f)
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The
credit of the tenants shall be acceptable in Lender’s sole
discretion.
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(g)
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Lender
shall have received a report in accordance with Lender’s then-current
standards from an engineer or architect chosen by Lender regarding the
physical structure of the Substitute Collateral, which report shall be
satisfactory in all respects to Lender in Lender’s sole
discretion. In addition, Lender shall have received an
Environmental Report in accordance with Lender’s then-current
environmental guidelines, which Environmental Report shall be satisfactory
in all respects to Lender in Lender’s sole discretion. The cost
of preparation of all such reports and all necessary inspections shall be
paid by Borrower.
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(h)
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At
the time of the Substitution, Debt Service Coverage, calculated with
respect to the Real Estate Security including the Substitute Collateral
but excluding the Old Security is equal to or greater than (i) the
Debt Service Coverage with respect to all of the Properties (including the
substituted Property) immediately prior to such Substitution, and, in any
event, (ii) 2.00 to 1.00. In the event the Debt Service
Coverage of the remaining Properties (as determined by Lender in its sole
discretion) falls below the required level, Borrower shall have the right,
subject to payment of the prepayment premium calculated in accordance with
the provisions set forth in the Notes, to pay Lender the amount necessary
to increase the Debt Service Coverage of the remaining Properties to the
required level.
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(i)
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At
the time of the Substitution, the Loan to Value Ratio, calculated with
respect to the Real Estate Security including the Substitute Collateral
but excluding the Old Security, does not exceed the lesser of
(1) forty seven percent (47%), or (2) the Loan to Value
Ratio of the entire Properties (including the Old Security) immediately
prior to such Release. In the event the Loan to Value Ratio of
the remaining Properties (as determined by Lender in its sole discretion)
exceeds the required level, Borrower shall have the right, subject to
payment of the prepayment premium calculated in accordance with the
provisions set forth in the Notes, to pay Lender the amount necessary to
reduce the loan to value ratio of the remaining Properties to the required
level.
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(j)
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Borrower
shall pay all reasonable costs and expenses incurred by Lender in
connection with the Substitution, including, but not limited to, all
legal, accounting, title insurance and appraisal fees, recording costs,
intangible taxes and documentary stamps, and a MAI appraisal (prepared by
an appraiser selected by Lender) of the Substitute Property, whether or
not such Substitution is actually
consummated.
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(k)
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[Intentionally
deleted]
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(l)
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At
the time of the request and the time of the Substitution, there shall be
no default under the Loan Documents, and there shall exist no condition or
state of facts which with the passage of time or the giving of notice or
both, would constitute a default under the Loan Documents (except for any
such default relating solely to the Old Security which, by its very
nature, will be cured by the requested
Substitution).
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(m)
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Borrower
shall pay Lender a $25,000.00 servicing fee (the “Substitution Servicing
Fee”) for consideration by Lender of the request at the time Borrower
makes such request, which shall be deemed fully earned by Lender even if
such request is denied, and an additional fee (against which the
Substitution Servicing Fee shall be credited) equal to one half percent
(0.5%) of the allocated loan balance for the Old Security, which
additional fee shall be paid at the time of
closing.
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(n)
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The
Substitute Collateral shall not consist of any partial interest in a
property, including but not limited to partnership or joint venture
interests. The Old Security is not eligible for
substitution if at the time of the proposed substitution
(i) any of the leases in the Old Security have any right to expand
into, or rights of refusal or offer in any building located on
another Individual Property, unless such rights have been amended to
terminate and eliminate such rights as a portion of the contractual rights
of such Lease, and to provide that the applicable Tenant’s recourse shall
only be as a contractual right, of public record, with the owner of the
Old Security to be released in such Substitution or (ii) any of the
leases in any of the other Individual Properties have any right to expand
into, or rights of refusal or offer in any building located on
the Old Security, unless such rights have been amended to terminate and
eliminate such rights as a portion of the contractual rights of such
Lease, and to provide that the applicable Tenant’s recourse shall only be
as a contractual right, of public record, with the owner of the Old
Security to be released in such
Substitution.
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(o)
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Unless
otherwise agreed to by Lender in its sole discretion, the Tied Properties
(Mack-Cali Centre VII, Mack-Cali Centre III and Mack-Cali
Centre II) will not be eligible for Substitution (if at such time any
of the leases in the Tied Properties have any right to expand into, or
rights of refusal or offer in any building located on another
Tied Property, unless such rights have been amended to terminate and
eliminate such rights as a portion of the contractual rights of such
Lease, and to provide that the applicable Tenant’s recourse shall only be
as a contractual right, of public record, with the owner of such
individual Tied Property to be released in such Substitution), unless all
of such Tied Properties are substituted at the same time (or substituted
as to some Tied Properties and released as to all the other Tied
Properties at such time), and provided that the aggregate balance of all
of the Loans is not less than $85,000,000.00 following any such
Release. Under this provision Lender shall consent to the
Release (in connection with a substitution) of all three Tied Properties
(Mack-Cali Centre VII, Mack-Cali Centre III and Mack-Cali Centre II)
if no other releases or substitutions have previously occurred, but
Lender, but will not consent to any additional Releases or Substitutions
during the Loan term, except in connection with the additional letter of
credit which may be posted in the last 12 months of the
Loan.
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Cash and Letter of Credit
General Options
. Subject to Borrower’s compliance with all of
the above requirements, Borrower shall be permitted to substitute cash (which
shall be held by Lender in an escrow account controlled by Lender) or a letter
of credit for an Old Security so long as such letter of credit shall be in form
and substance satisfactory to Lender, shall be issued by a bank satisfactory to
Lender, and shall have an initial term of at least twelve (12)
months. The amount of the cash escrow or letter of credit will be
(i) 110% of the Loan amount allocated to the Old Security, so long as the
Loan to Value Ratio, calculated with respect to the Real Estate Security,
excluding the cash escrow or letter of credit and excluding the Old Security,
does not exceed forty-two percent (42%), or, (ii) an amount such that at
the time of the Substitution, the Loan to Value Ratio, calculated with respect
to the Real Estate Security including the cash escrow or letter of credit but
excluding the Old Security, does not exceed forty-seven percent
(47%). So long as such letter of credit is providing security for
such Loan, it shall be regularly renewed at least forty five (45) days prior to
its expiration date, with a renewal term of at least twelve (12) months;
provided that in the alternative Borrower shall be permitted to substitute a
cash deposit (which shall be held by Lender in an escrow account controlled by
Lender) at least 45 days prior to such expiration date (and Borrower may
thereafter substitute for such cash a letter of credit meeting the standards of
Lender hereunder). Failure to so renew such letter of credit or
replace such letter of credit with a cash deposit in accordance with the above
provisions shall constitute an Event of Default under the Loan Documents and
shall entitle Lender to (A) draw upon such letter of credit for application
against the secured indebtedness (including the Prepayment Premium) and
(B) exercise any and all remedies Lender may have under the Loan Documents,
provided, however, that if the sole Event of Default is the failure to renew
such letter of credit or replace such letter of credit with a cash deposit in
accordance with the above provisions, then Lender’s exercise of remedies under
this clause (B) shall not commence until five (5) days have expired after
Lender’s delivery of written notice to Borrower of such failure, and Borrower
has continued to fail to renew such letter of credit, replace such letter of
credit or substitute a cash deposit within such five (5) day
period. At all times during the term of the Loan, only one (1) cash
escrow or letter of credit shall be permitted to be outstanding and providing
security for the Loan (as replacement security for only one Individual Property
being released as security pursuant to this Section 6, Substitution of
Collateral); provided however, during the last twelve (12) months of the Loan
term, Lender shall permit two (2) cash escrows or letters of credit to be
outstanding and providing security for the Loan (as replacement security for
only two Properties being released as security pursuant to this Section 6,
Substitution of Collateral). The Substitution Servicing Fee for a
Substitution of a cash escrow or letter of credit for an Old Security shall be
$25,000 (reduced to $15,000 if the Substitution is initiated in the last twelve
(12) months of the Loan), but Borrower shall not be required to pay the 0.5%
additional fee (described in (m) above) in connection with the Substitution of a
cash escrow or letter of credit for an Old Security. If Borrower ever
requests that an Individual Property be substituted for an outstanding cash
escrow or letter of credit, Borrower must comply with all of the requirements
set forth in Section 6(a) through Section 6(o) above, but Borrower
shall not be required to pay a new $25,000 Substitution Servicing Fee and the
previously paid Substitution Servicing Fee shall be credited against the
additional 0.5% fee; provided, however, if such Substitution of an
Individual Property for the cash escrow or letter of credit is not completed,
then Borrower must pay a $25,000 Substitution Servicing Fee for each subsequent
requested Substitution of an Individual Property for such outstanding cash
escrow or letter of credit and such additional Substitution Servicing Fee(s)
shall not be credited against the additional 0.5% fee described in (m)
above.
Cash and Letter of Credit
End of Term Options
. Notwithstanding anything to the contrary
above, (i) even if Borrower has completed a combined cumulative total of
two Releases and Substitutions (except if the Release is in accordance with the
conditions set forth in subsection (i) of Section 5 or if the Substitution
is in accordance with the conditions set forth in subsection (o) of this
Section 6); and (ii) provided Borrower has no more than one (1) other
cash escrow or other letter of credit outstanding, and (iii) it
is during the last twelve (12) months of the Loan, then Borrower can
use a cash escrow or letter of credit to Release another Individual Property,
and then, subject to Borrower’s compliance with all of the above requirements,
Borrower shall be permitted to substitute a cash escrow or letter of credit for
an Old Security so long as such letter of credit shall be in form and substance
satisfactory to Lender, shall be issued by a bank satisfactory to Lender, and
shall have an initial term of at least twelve (12) months.
The
amount of the cash escrow or letter of credit will be (i) 110% of the Loan
amount allocated to the Old Security, so long as the Loan to Value Ratio,
calculated with respect to the Real Estate Security, excluding the cash escrow
or letter of credit and excluding the Old Security, does not exceed forty-two
percent (42%), or, (ii) an amount such that at the time of the
Substitution, the Loan to Value Ratio, calculated with respect to the Real
Estate Security including the cash escrow or letter of credit but excluding the
Old Security, does not exceed forty-seven percent (47%).
Letter of Credit
Renewal
. So long as such letter of credit is providing
security for such Loan, it shall be regularly renewed at least 45 days prior to
its expiration date, with a renewal term of at least twelve (12) months;
provided that in the alternative Borrower shall be permitted to substitute a
cash deposit (which shall be held by Lender in an escrow account controlled by
Lender) at least 45 days prior to such expiration date (and Borrower may
thereafter substitute for such cash a letter of credit meeting the standards of
Lender hereunder). Failure to so renew such letter of credit or
replace such letter of credit with a cash deposit in accordance with the above
provisions shall constitute an Event of Default under the Loan Documents and
shall entitle Lender to (i) draw upon such letter of credit for application
against the secured indebtedness (including the Prepayment Premium) and (ii)
exercise any and all remedies Lender may have under the Loan Documents;
provided, however, that if the sole Event of Default is the failure to renew
such letter of credit or replace such letter of credit with a cash deposit in
accordance with the above provisions, then Lender’s exercise of remedies under
this clause (ii) shall not commence until five (5) days have expired after
Lender’s delivery of written notice to Borrower of such failure, and Borrower
has continued to fail to renew such letter of credit, replace such letter of
credit or substitute a cash deposit within such five (5) day
period.
Substitution
Processing
. Lender shall have at least sixty (60) days in
which to process any request to effect a Substitution after receipt of (1) all
materials and information necessary to evaluate such request and (2) the
Substitution Servicing Fee.
Limits
. Except
for the additional cash escrow or letter of credit that may be posted during the
twelve (12) months prior to maturity, notwithstanding anything to the contrary
in this Section 6 and/or Section 5 (the Release of Properties
Section), Borrower shall only have the right to a combined cumulative total
(during the entire term of the Loan) of two (2) Substitutions and Releases,
except if the Release is in accordance with the conditions set forth in
subsection (i) of Section 5 or if the Substitution is in accordance with
the conditions set forth in subsection (o) of this
Section 6. Substituting a cash escrow or letter of credit for an
Old Security shall count as one (1) of the two (2) permitted Substitutions
and/or Releases; however, the subsequent Substitution of a Individual Property
for an outstanding letter of credit shall not count as one (1) of the two (2)
permitted Substitutions and/or Releases.
Section
7.
CONVERSION
OPTION
.
Intentionally
Omitted. Borrower shall no longer have the “Conversion Option” set
forth in the Prior Loan Agreement.
Section
8.
LEASES
.
Section
8.1.
Leasing
Standards Covenant.
Each Borrower shall comply with the
leasing standards and covenants set forth in each Assignment of
Rents. Without limiting the foregoing, those tenants listed on
Exhibit C-1
have noted that there is a claim of breach or default by the Borrower with
respect to the obligations of the landlord under the applicable Lease, and with
respect to each, Borrower shall take commercially reasonable efforts to comply
with and discharge all obligations of the landlord under such Leases, and upon
resolution of such claimed defaults, obtain from such parties replacement tenant
estoppels setting forth no claim of default. Borrower will promptly
send Lender copies of any notices or other information sent or received with
respect to the foregoing.
Section
8.2.
Existing
Leases.
Each Borrower represents and warrants that
the Rent Roll attached hereto as
Exhibit C
shows all Leases of the Properties as of the date hereof, and that such Rent
Roll shows all information required by the Application to be shown on the Rent
Roll. All Leases (i) cover in the aggregate not less than
1,725,000 rentable square feet, with each lease having an original term of not
less than thirty-six (36) months, (ii) produce annualized base rent (but
excluding tenant payments for operating and fixed expenses, percentage rents,
and any other non-rental items) from tenants paying full rent, and not otherwise
in default, of not less than $38,300,000, and (iii) include the following
tenants: Prentice Hall, New Cingular Wireless, United Retail Inc., Movado Group
Inc., Morgan Stanley Smith Barney Financing LLC (formerly known as Citigroup
Global Markets Inc.), Mannkind Corp. and Syncsort Inc. (the “Major Tenants”),
each of which is paying full rent, and not in default.
Section
8.3.
Rent
Roll.
The form and format of Rent Roll attached hereto as
Exhibit C
shall be acceptable and permitted by Lender for the purposes of the requirement
of delivery of Rent Rolls under the Security Documents during the term of the
Loan.
Section
8.4.
SNDA
Agreements.
Lender agrees that, at the request of any Tenant
under a Lease arising after the date hereof and approved by Prudential (but not
a lease “deemed approved” by Prudential), Lender shall enter into subordination,
non-disturbance and attornment agreement substantially in the form attached
hereto as
Exhibit F
.
Section
8.5.
Lease
Form.
The standard form of Lease now in use with respect to
each of the Properties is attached hereto as
Exhibit G
.
Section
8.6
Parking
Compliance
.
Borrower and
Guarantors acknowledge that certain of the Properties may not be in current
compliance with the parking requirements applicable under the zoning ordinances
applicable to such Properties (such Properties are known as Mack-Cali
Centre II and Mack-Cali Centre III). Based on the receipt
of Certificates of Occupancy and other documentation, Borrower is under the
understanding that the Properties in fact comply in all material compliance with
all Laws (as defined in the Mortgages) applicable to the parking requirements
for such Properties; in addition, without limiting the provisions of
Section 2.04(b) of the Mortgages, Borrower has received no notice of any
violation or potential violation of the Laws applicable to the parking
requirements for such Properties which has not been remedied or
satisfied. Borrower and Guarantors hereby covenant and agree that,
without limiting the provisions of Section 3.05(c) of the Mortgages, that
if proceedings are initiated alleging, or Borrower receives notice, that it or
the Individual Property is not in compliance with the Laws applicable to the
parking requirements for such Properties (a “Parking Violation Notice”),
Borrower will promptly send Lender notice and a copy of the proceeding or
violation notice, and that if the Individual Property is not in compliance with
all Laws, and, without limiting the provisions of Section 3.05(c) of the
Mortgages, but subject to the Parking Contest Rights (as defined below) Borrower
and Guarantor shall undertake and shall be liable for the cost (the “Additional
Parking Cost”) to (i) build any additional parking spaces necessary to
comply with such Laws and/or (ii) as and if necessary to secure such
compliance, acquire any additional land necessary to provide such parking spaces
in compliance with Laws. Borrower and Guarantors further agree that
liability of Borrower and Guarantor to pay the Additional Parking Cost shall be
recourse to Borrower and the Recourse Parties (as defined in the
Notes). So long as no Event of Default is continuing, Borrower may,
prior to the deadlines applicable to any Parking Violation Notice and at its
sole expense, contest any Parking Violation Notice, but this shall not change or
extend Borrower’s obligation to comply with the Parking Violation Notice as
required above unless (A) Borrower gives Lender prior written notice of its
intent to contest the Parking Violation Notice; (B) Borrower
demonstrates to Lender’s reasonable satisfaction that (1) the Individual
Property will not lose any rights or permits, including, but not limited to, any
existing certificates of occupancy or the right to secure building permits for
tenant improvements, prior to the final determination of the legal proceedings
relating to the Parking Violation Notice, (2) it has taken such actions as
are required or permitted to accomplish a stay of any such action referenced in
subsection (1) above, and (3) it has furnished to Lender such tenant
estoppel certificates as Lender may require (satisfactory to Lender in form and
amount) sufficient to assure Lender that the Major Tenants of such Individual
Property have no claim against Borrower under their Lease relating to the
matters addressed in the Parking Violation Notice; (C) at
Lender’s option, Borrower has deposited the full amount necessary to pay the
Additional Parking Costs with Lender; and (D) such proceeding
shall be permitted under any other instrument to which Borrower or the
Individual Property is subject (whether superior or inferior to this
Instrument).
Section
8.7
Tuttle
Fee Estate
.
Borrower and
Guarantors acknowledge that with respect to the Property known as Mack-Cali
Centre III, the ownership of the landlord interest under the Ground Lease
(as defined in the Mortgage related to such Property), and the fee simple
interest of the land under the Ground Lease (the “Tuttle Fee”), is in question
on account of the death of Sam Tuttle, who had owned such interests as of the
original Loan to Borrower as of April 30, 1998. Based on
information available to date, Borrower is advised that Catherine Taffuri has
received an assignment of rights under the Ground Lease, but that fee simple
ownership of the land demised under the Ground Lease most recently was vested in
Theda Carracic and Alan Tuttle, as owners of “Tract 1” (though Borrower is
advised that Theda Carracic has herself died), and The Tuttle Family Limited
Partnership, as owner of “Tract 2” (though Borrower is advised that this
partnership has dissolved as of March, 2009). Accordingly, while
Catherine Taffuri has executed a ground landlord estoppel in connection with the
Loan, and Catherine Taffuri has executed a Joinder to the first priority
Mortgage with respect to the Property known as Mack-Cali Centre III (to
confirm the existing Joinder from 1998), it appears that the title to the Tuttle
Fee requires certain documentation to confirm that it is, in fact, vested in
Catherine Taffuri as of the date hereof. Accordingly, Borrower and
Guarantors hereby covenant and agree that Borrower and Guarantors shall use
commercially reasonable efforts to determine who owns the Tuttle Fee, and obtain
from such parties replacement Joinders to the Mortgages with respect to the
Property known as Mack-Cali Centre III and replacement ground landlord
estoppels from such parties if other than Catherine Taffuri, with certification
from the Title Company that such parties are the owners of the Tuttle
Fee. Borrower will promptly send Lender copies of any notices or
other information sent or received with respect to the foregoing. In
the event that, upon foreclosure of the Mortgages with respect to the Property
known as Mack-Cali Centre III, any claim is made against Lender that the
wrong party has been paid under the Ground Lease applicable to the Tuttle Fee
and, on account thereof, the owner of the lessor interest in and to such Ground
Lease either makes demand for payment or exercises any remedy under such Ground
Lease, and Lender suffers any loss as a result thereof, Borrower and Guarantor
shall be liable for the amount of such loss (the “Tuttle Title Loss”), and shall
indemnify Lender from any such Tuttle Title Loss. Borrower and
Guarantors further agree that liability of Borrower and Guarantor with respect
to the Tuttle Title Loss shall be recourse to Borrower and the Recourse Parties
(as defined in the Notes).
Section
9.
EVENTS OF DEFAULT;
ACCELERATION; ETC.
Section 9.1.
Events of
Default
.
The term “Event
of Default,” as used in this Agreement, shall mean the occurrence of any of the
events described in Section 6.01 of the Mortgages (and the term “Default”,
as used in this Agreement, shall mean the occurrence of any of such events,
without regard to any requirement of notice or whether any cure period is
required in order to constitute an Event of Default). Any periods of
notice and cure set forth herein and in the other Loan Documents (or set forth
in more than one Loan Document) shall run concurrently, and not
consecutively.
Section 9.2.
Acceleration
and Remedies
.
If an Event of
Default shall occur, then, and in any such event, so long as the same may be
continuing, Lender may declare the entire balance of the Obligations (including
the entire principal balance thereof, all accrued and unpaid interest and any
prepayment premium and late charges thereon and all other such sums secured
hereby) to be immediately due and payable, and upon any such declaration the
entire unpaid balance of the Obligations shall become and be immediately due and
payable, without presentment, demand, protest, or further notice of any kind,
all of which are hereby expressly waived by each Borrower, anything in the Loan
Documents to the contrary notwithstanding. In case any one or more of
the Events of Default shall have occurred and be continuing, and whether or not
Lender shall have exercised any of their rights under the Loan Documents, Lender
may proceed to protect and enforce the rights and remedies under this Agreement,
the Notes or any of the other Loan Documents by suit in equity, action at law or
other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Agreement and the other Loan Documents
or any instrument pursuant to which the Obligations to such Lender are
evidenced, including to the full extent permitted by applicable law, the
obtaining of the
ex parte
appointment of a receiver. No remedy herein conferred upon any Lender
is intended to be exclusive of any other remedy and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or any other
provision of law.
Section 9.3.
Distribution
of Collateral Proceeds
.
In the event
that, following the occurrence or during the continuance of any Event of
Default, Lender receive any monies in connection with the enforcement of any of
the Security Documents, or otherwise with respect to the realization upon any of
the Collateral, such monies shall be distributed in accordance with the Loan
Documents to such portion of the Loans as Lender may desire.
Section
10.
REPRESENTATIONS
AND WARRANTIES
.
(a)
Exhibit H
sets forth the ownership structure of each Borrower and of Guarantor and the
percentage ownership of each constituent member and partner in each
Borrower.
(b) Borrowers
hereby certify to Lender that there have been none of the following matters
involving any Borrower, any general partner(s) of any Borrower, the Guarantor,
or any general partner(s) of the Guarantor within the period from
September 1, 1994 to the date hereof:
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(i)
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Litigation
involving any lenders or financial institutions, including foreclosure
actions;
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(ii)
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Deeds
(or conveyances) in lieu of foreclosure, or sales (pursuant to power of
sale);
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(iii)
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Petitions
in bankruptcy or insolvency, or for reorganization, liquidation,
dissolution, or for the appointment of a receiver, filed by or against any
of the individuals or entities set forth above;
or
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(iv)
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workouts
or modifications of any loan in which the interest rate was changed, the
principal amount was reduced or the loan term was
extended.
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(c) Borrowers
have heretofore furnished (i) financial statements of Borrower, consisting
of consolidated financial statements of MCRLP for the year ending
December 31, 2008, and (ii) financial statements of the Tenants
described in Section 8.2(1), (4) and (6), provided, that as to such
Tenants, such financial information includes only financial information on such
Tenants for the last three full fiscal years thereof to the extent Borrowers
have obtained or can obtain such information, and to the extent not obtained
prior to the date hereof, or, as to 2008 financial information not available as
of the date hereof, Borrowers shall obtain such financial information when such
financial information is available after Closing.
(d) Borrowers
hereby represent that, to its actual knowledge, all of the information submitted
or to be submitted by Borrowers to Lender in connection with the Application and
the Loan was, and as of the date hereof is, true, correct and complete in all
material respects.
Section 11.
LOAN
BROKERS AND COMMISSIONS
.
Neither any
Borrower nor Guarantor has engaged or used the services of any mortgage broker
in connection with the Loan. Lender represent to Borrowers that they
have not engaged or used the services of any mortgage broker in connection with
the Loan. Lender, on one hand, and Guarantor and Borrowers, on the
other hand, shall each indemnify and hold the other harmless against the payment
of any brokerage commissions or fees of any kind with respect to the Loan, and
for any legal fees or expenses incurred by the other in connection with any
claims for such commissions or fees by any person engaged, or claiming to have
been engaged, by the indemnifying party (and no Lender shall be liable for any
such obligation hereunder with respect to any mortgage broker or other person
claiming such rights or commissions on account of such person’s distribution of
loan solicitations or other materials with respect to any of the Properties or
such Lender’s receipt thereof). Such indemnity shall not be subject
to the limitations on personal liability set forth in Section 3
hereof.
Section
12.
EFFECT OF
APPROVALS
.
Any approval by
Lender of documents or materials submitted by any Borrower or by Guarantor shall
be for loan underwriting purposes only, and Borrowers and Guarantor acknowledge
that they are not in any way relying upon such approval for any purpose other
than satisfaction of the terms and conditions of the Application. The
mere fact that the description of any document, report or other item required by
the Application sets forth certain information to be provided therein, does not
obligate Lender to approve the content of such information when it appears in
such document, report or other item. Any such approvals are to be
relied upon by Lender only, and shall not constitute an assumption of liability
by Lender with respect to Guarantor, any Borrower, or any contractors,
architects, or engineers, or any present or future tenant, occupant or owner of
the Properties or any Individual Property.
Section 13.
NOTICES
.
Any notice,
request, demand, consent, approval, direction, agreement, or other communication
(any “notice”) required or permitted under the Loan Documents shall be in
writing and shall be validly given if sent by a nationally-recognized courier
that obtains receipts, delivered personally by a courier that obtains receipts,
or mailed by United States certified mail (with return receipt requested and
postage prepaid) addressed to the applicable person as follows:
|
If
to Borrower:
c/o Mack-Cali
Realty Corporation
343 Thornall
Street
Edison,
New Jersey 08837
Attention: Mitchell
E. Hersh,
President
and Chief Executive Officer
|
|
|
With
a copy to notices sent to Borrower to:
Mack-Cali
Realty, L.P.
c/o Mack-Cali
Realty Corporation
343 Thornall
Street
Edison,
New Jersey 08837
Attention: Barry
Lefkowitz,
Executive
Vice President and CFO
|
With
a copy to notices sent to Borrower to:
General
Counsel
Mack-Cali
Realty Corporation
343 Thornall
St.
Edison,
New Jersey 08837
Attention: Roger
W. Thomas
|
|
If
to Lender:
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, and VPCM, LLC
c/o Prudential
Asset Resources, Inc.
2100 Ross
Avenue, Suite 2500
Dallas,
Texas 75201
Attention: Asset
Management Department
Reference
Loan Nos. 706 108 235 - 706 108 241 and 706 108 265 - 706 108
271
|
With
a copy of notices sent to Lender to:
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA
c/o Prudential
Asset Resources, Inc.
2100 Ross
Avenue, Suite 2500
Dallas,
Texas 75201
Attention: Legal
Department
Reference
Loan Nos. 706 108 235 - 706 108 241 and 706 108 265 - 706 108
271
|
Each
notice shall be effective (i) upon delivery, if delivered in person,
(ii) one business day after having been deposited for overnight delivery
with a reputable overnight courier service, or (iii) three business days
after having been sent by U.S. registered or certified mail, postage
prepaid. Refusal to accept delivery or the inability to deliver
because of a changed address for which no notice was given shall be deemed
receipt. Any party may periodically change its address for notice
hereunder (and such change shall be applicable to all Loan Documents) and
specify up to two (2) additional addresses for copies by giving the other party
at least ten (10) days’ prior notice.
Section
14.
GOVERNING
LAW; CONSENT TO JURISDICTION AND SERVICE
.
THIS AGREEMENT IS
A CONTRACTS UNDER THE LAWS OF THE STATE OF NEW JERSEY AND SHALL FOR ALL PURPOSES
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH STATE
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF
LAW). BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW JERSEY OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH
COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON BORROWER BY
MAIL AT THE ADDRESS SPECIFIED IN SECTION 13. BORROWER HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
Section
15.
HEADINGS
.
The captions in
this Agreement are for convenience of reference only and shall not define or
limit the provisions hereof.
Section
16.
RULES OF
INTERPRETATION
.
(a) A
reference to any document or agreement shall include such document or agreement
as amended, modified or supplemented from time to time in accordance with its
terms and the terms of this Agreement.
(b) The
singular includes the plural and the plural includes the singular.
(c) A
reference to any law includes any amendment or modification to such
law.
(d) A
reference to any Person includes its permitted successors and permitted
assigns.
(e) Accounting
terms not otherwise defined herein have the meanings assigned to them by
generally accepted accounting principles.
(f) The
words “include”, “includes” and “including” are not limiting.
(g) All
terms not specifically defined herein or by generally accepted accounting
principles, which terms are defined in the Uniform Commercial Code as in effect
in New Jersey, have the meanings assigned to them therein.
(h) Reference
to a particular “Section” refers to that section of this Agreement unless
otherwise indicated.
(i) The
words “herein”, “hereof “, “hereunder” and words of like import shall refer to
this Agreement as a whole and not to any particular section or subdivision of
this Agreement.
(j) The
covenants, warranties and agreements of Borrower herein shall be made jointly
and severally. Such joint and several liability of each Borrower
shall not be affected, diminished or impaired by the dissolution, merger,
consolidation, insolvency or bankruptcy of either Person or any determination by
a court or tribunal of competent jurisdiction or otherwise that, as to either
Person, the obligations and liabilities of such Person hereunder and under the
Security Documents on the other documents and instruments executed in connection
herewith and therewith.
Section
17.
COUNTERPARTS
.
This Agreement
and any amendment hereof may be executed in several counterparts and by each
party on a separate counterpart, each of which when so executed and delivered
shall be an original, and all of which together shall constitute one
instrument. In proving this Agreement it shall not be necessary to
produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
Section
18.
CONSENTS,
AMENDMENTS, WAIVERS, ETC
.
Except as
otherwise expressly provided in this Agreement, any consent or approval required
or permitted by this Agreement may be given, and any term of this Agreement or
of any other instrument related hereto or mentioned herein may be amended, and
the performance or observance by Borrowers of any terms of this Agreement or
such other instrument or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of
Lender. No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No course of
dealing or delay or omission on the part of Lender in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. No
notice to or demand upon Borrowers shall entitle Borrowers to other or further
notice or demand in similar or other circumstances.
Section
19.
SEVERABILITY
.
The provisions of
this Agreement are severable, and if any one clause or provision hereof shall be
held invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect only such clause or provision, or
part thereof, in such jurisdiction, and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or provision
of this Agreement in any jurisdiction.
Section
20.
NO
UNWRITTEN AGREEMENTS
.
The written Loan
Documents represent 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 unwritten oral agreements between the
parties.
Section
21.
TIME OF
THE ESSENCE
.
Time is of the
essence of this Agreement.
Section
22.
WAIVER OF JURY
TRIAL
. EACH OF BORROWERS, GUARANTORS AND LENDER HEREBY WAIVE,
TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM FILED BY EITHER PARTY, WHETHER IN CONTRACT,
TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE DOCUMENTS,
OR ANY ACTS OR OMISSIONS OF LENDER OR BORROWER IN CONNECTION
THEREWITH.
Section
23.
Liability
.
Guarantor’s
recourse liability under this Agreement shall be subject to the same limitations
and other provisions as are set forth in Paragraph 8 and Paragraph 9
of each applicable Note and as set forth in each applicable Irrevocable Guaranty
of Payment and Performance (Recourse Carveout Items), all of which terms and
provisions are incorporated herein by this reference, and, except to the extent
provided therein, Lender shall not enforce any deficiency judgment or personal
money judgment against Guarantor or any of its respective constituent partners,
or any of their respective officers, directors, agents, or shareholders with
respect to any of the liabilities or obligations arising hereunder.
IN WITNESS WHEREOF,
the
undersigned have duly executed this Agreement as a sealed instrument as of the
date first set forth above.
|
|
GUARANTORS:
MACK-CALI REALTY
CORPORATION
,
a Maryland
corporation
By:
/s/ Barry Lefkowitz
Name: Barry
Lefkowitz
Title:Executive Vice President
and Chief Financial Officer
|
|
|
MACK—CALI REALTY, L.P.
,
a Delaware limited partnership
By:MACK-CALI
REALTY CORPORATION, a Maryland corporation, General Partner
By:
/s/ Barry Lefkowitz
Name: Barry
Lefkowitz
Title:Executive Vice President
and Chief Financial Officer
|
|
|
BORROWERS:
|
|
|
MACK—CALI REALTY, L.P.
,
a Delaware limited partnership
By:MACK-CALI
REALTY CORPORATION, a Maryland corporation, General Partner
By:
/s/ Barry Lefkowitz
Name: Barry
Lefkowitz
Title:Executive Vice President
and Chief Financial Officer
|
|
|
MACK-CALI F PROPERTIES,
L.P.
, a New Jersey limited partnership
By:MACK-CALI
SUB I, INC., a Delaware corporation, General Partner
By:
/s/ Barry Lefkowitz
Name: Barry
Lefkowitz
Title:Executive Vice President
and Chief Financial Officer
|
|
|
MACK-CALI CHESTNUT RIDGE
L.L.C.
,
a
New Jersey limited liability company
By:MACK-CALI
REALTY, L.P., a Delaware limited partnership, Sole Member
By:Mack-Cali Realty
Corporation, a Maryland corporation, General Partner
By:
/s/ Barry Lefkowitz
Name: Barry
Lefkowitz
Title: Executive
Vice President and Chief Financial Officer
|
|
|
LENDER:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
, a New Jersey corporation
By:
/s/ Melissa Farrell
Name: Melissa
Farrell
Title: Vice
President
|
|
|
VPCM, LLC
, a Virginia
limited liability company
By:PRUDENTIAL
INVESTMENT MANAGEMENT, INC., a New Jersey corporation, as Investment
Advisor
By:
/s/ Jocelyn Friel
Name:
Jocelyn Friel
Title: Vice
President
|
EXHIBIT
A
BORROWERS
The
Borrowers are listed below opposite the name and location of each Individual
Property:
|
Property
|
Borrower
|
Property
Address
|
|
Mack-Cali
Saddle River
|
Mack—Cali
Realty, L.P.
|
One
Lake Street, Upper Saddle River, Bergen County, New
Jersey
|
|
Mack-Cali
Centre I
|
Mack—Cali
Realty, L.P.
|
365
West Passaic Street, Rochelle Park, Bergen County, New
Jersey
|
|
Mack-Cali
Centre II
|
Mack—Cali
Realty, L.P.
|
1
Mack-Cali Centre Drive, Paramus, Bergen County, New
Jersey
|
|
Mack-Cali
Centre III
|
Mack—Cali
Realty, L.P.
|
140
East Ridgewood Avenue, Paramus, Bergen County, New
Jersey
|
|
Mack-Cali
Centre IV
|
Mack—Cali
Realty, L.P.
|
61
South Paramus Road, Paramus, Bergen County, New Jersey
|
|
Mack-Cali
Centre VII
|
Mack-Cali F
Properties, L.P.
|
15
East Midland Avenue, Paramus, Bergen County, New Jersey
|
|
Mack-Cali
Corp. Center
|
Mack-Cali
Chestnut Ridge L.L.C.
|
50
Tice Blvd., Woodcliff Lake, Bergen County, New
Jersey
|
EXHIBIT
B
LOAN
NUMBERS AND LOAN AMOUNTS
|
Property
|
Loan
Number
|
Existing Loan
Amount
|
Reallocation of Loan
Amounts
|
New Loan
Amount
|
|
Mack-Cali
Saddle River
|
706
108 235 and 706 108 265
|
$35,550,000.00
|
$6,450,000.00
|
$42,000,000.00
|
|
Mack-Cali
Centre I
|
706
108 236 and 706 108 266
|
$12,250,000.00
|
$0.00
|
$12,250,000.00
|
|
Mack-Cali
Centre II
|
706
108 237 and 706 108 267
|
$25,600,000.00
|
($2,100,000.00)
|
$23,500,000.00
|
|
Mack-Cali
Centre III
|
706
108 238 and 706 108 268
|
$16,100,000.00
|
($3,850,000.00)
|
$12,250,000.00
|
|
Mack-Cali
Centre IV
|
706
108 239 and 706 108 269
|
$20,800,000.00
|
$2,200,000.00
|
$23,000,000.00
|
|
Mack-Cali
Centre VII
|
706
108 240 and 706 108 270
|
$20,600,000.00
|
($7,600,000.00)
|
$13,000,000.00
|
|
Mack-Cali
Corp. Center
|
706
108 241 and 706 108 271
|
$19,100,000.00
|
$4,900,000.00
|
$24,000,000.00
|
|
Property
|
Pru Loan
No.
|
VPCM Loan
No.
|
Pru Loan
Amount
|
VPCM Loan
Amount
|
|
Mack-Cali
Saddle River
|
706
108 235
|
706
108 265
|
$22,400,000.00
|
$19,600,000.00
|
|
Mack-Cali
Centre I
|
706
108 236
|
706
108 266
|
$6,533,333.34
|
$5,716,666.66
|
|
Mack-Cali
Centre II
|
706
108 237
|
706
108 267
|
$12,533,333.34
|
$10,966,666.66
|
|
Mack-Cali
Centre III
|
706
108 238
|
706
108 268
|
$6,533,333.34
|
$5,716,666.66
|
|
Mack-Cali
Centre IV
|
706
108 239
|
706
108 269
|
$12,266,666.64
|
$10,733,333.36
|
|
Mack-Cali
Centre VII
|
706
108 240
|
706
108 270
|
$6,933,333.34
|
$6,066,666.66
|
|
Mack-Cali
Corp. Center
|
706
108 241
|
706
108 271
|
$12,800,000.00
|
$11,200,000.00
|
Exhibit
10.2
Loan
Nos. 706 108 235 - 706 108 241
and 706
108 265 - 706 108 271
Dated as
of January 15, 2010
PARTIAL RECOURSE
GUARANTY
(Prentice Hall Space and New
Cingular Wireless Space)
FOR VALUE RECEIVED
, the
receipt and sufficiency of which is hereby acknowledged, and in accordance with
the terms provided below, the undersigned,
MACK-CALI REALTY, L.P.
, a
Delaware limited partnership (whether one or more, hereinafter together called
“
Guarantor
” in the
singular), absolutely and unconditionally guarantees and agrees to pay to
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA,
a New Jersey corporation (“Prudential”), and
VPCM, LLC
, a Virginia limited
liability company (“VPCM”) (collectively hereinafter called “
Lender
”) at the address
designated in the Note (as hereinafter defined) for payment thereof or as such
address may be changed as provided in the Note or the Instrument, the Recourse
Guaranteed Amount (defined below) of the Obligations (defined below) of
MACK—CALI REALTY, L.P.
, a
Delaware limited partnership,
MACK-CALI F PROPERTIES L.P.,
a
New Jersey limited partnership, and
MACK-CALI CHESTNUT RIDGE
L.L.C.
,
a New
Jersey limited liability company (hereinafter collectively called “
Borrower
”), under the Note
(defined below) and other Documents (defined below), and absolutely and
unconditionally covenants and agrees with Lender pursuant to the terms of this
Partial Recourse Guaranty (hereinafter called “
Guaranty
”), as
follows:
1. As
used in this Guaranty, the term (i) “
Documents
” shall have the same
meaning as set forth in the Instrument (defined below), and including, but not
limited to, that certain Amended and Restated Loan Agreement dated of even date
herewith (the
“Loan
Agreement”
) by and among, inter alia, Lender and Borrower relating to
seven (7) cross-collateralized and cross-defaulted loans in the aggregate
principal amount of $150,000,000.00; (ii) “
Obligations
” shall have the
same meaning as set forth in the Instrument; (iii) “
Note
” shall mean the Notes as
defined in the Loan Agreement; (iv) “
Instrument
” shall mean the
Mortgages as defined in the Loan Agreement; (v) “
Property
” shall mean the
Properties as defined in the Loan Agreement; (vi) “
Loan
” shall have the same
meaning as set forth in the Loan Agreement; and (vii) “
Costs
” shall have the same
meaning as set forth in the Instrument. Capitalized terms used herein
and not defined herein shall have the meaning ascribed to such terms in the
Instrument. The following terms shall have the meanings set forth
below with respect to the applicable leases and spaces and the special terms of
this Guaranty:
“
Applicable Principal
Liability
” with respect to the Loan shall be equal to the aggregate of
the Applicable Prentice Hall Principal Liability and the Applicable New Cingular
Wireless Principal Liability (as such terms are defined below).
“
Applicable Prentice Hall Principal
Liability
” with respect to the Loan shall be equal to the following
amounts upon the occurrence of the conditions indicated:
|
|
(A)
|
as
of the Closing of the Loan, and until the occurrence of any condition in
clauses (B) and (C) below and subject to clauses (C) and (D) below, the
Applicable Prentice Hall Principal Liability shall be $0.00 (because as of
the Closing of the Loan it is assumed by Borrower and Guarantor that
Prentice Hall shall keep the Prentice Hall Lease in full force and effect
and exercise the Prentice Hall Renewal on or before the Prentice Hall
Renewal Deadline, and the terms of the Loan are expressly underwritten on
such assumption and in consideration and reliance on the agreement by
Borrower and Guarantor that they shall immediately incur the recourse
liability set forth herein in the event that such event shall fail to
occur);
|
|
|
(B)
|
from
and after either (1) Prentice Hall advises Borrower or Lender that
Prentice Hall will not be exercising the Prentice Hall Renewal, or
(2) any relinquishment, termination, cancellation or other waiver of,
or any failure of conditions precedent under the Prentice Hall Lease
applicable to the right to exercise the Prentice Hall Renewal, or
(3) any amendment, modification, termination or cancellation of the
Prentice Hall Lease occurs prior to Prentice Hall’s exercise of the
Prentice Hall Renewal and Borrower’s delivery of the Prentice Hall Renewal
Documents to Lender to evidence such renewal (unless such is made or
occurs with the prior written consent of Lender, which written consent
specifically references this clause of this Guaranty and that the consent
to the lease action does not trigger the liability under this clause), the
Applicable Prentice Hall Principal Liability shall be $42,000,000;
provided, however, that if a relinquishment, termination, amendment,
modification or cancellation of the Prentice Hall Lease or other waiver of
or any failure of conditions precedent under the Prentice Hall Lease
applicable to the right to exercise the Prentice Hall Renewal as set forth
in this subparagraph (B) that occurs by virtue of Prentice Hall rejecting
the Prentice Hall Lease prior to the Prentice Hall Renewal Deadline after
Prentice Hall files a petition in bankruptcy, then, notwithstanding any
prior Applicable Prentice Hall Principal Liability arising under
subclauses (1), (2) or (3) of this subparagraph (B), then the Applicable
Prentice Hall Principal Liability shall be
$0.00;
|
|
|
(C)
|
assuming
none of the events listed in subparagraph (B) above has theretofore
occurred, and Prentice Hall has not previously exercised the Prentice Hall
Renewal or Borrower has not delivered of the Prentice Hall Renewal
Documents to Lender to evidence such renewal, then from and after
April 30, 2013 (the Prentice Hall Renewal Deadline), the Applicable
Prentice Hall Principal Liability shall be $42,000,000, unless and until
Prentice Hall has exercised the Prentice Hall Renewal and Borrower has
delivered the Prentice Hall Renewal Documents to Lender to evidence such
renewal; and except that if Prentice Hall has exercised the Prentice Hall
Renewal and Borrower has delivered the Prentice Hall Renewal Documents to
Lender to evidence such renewal, all in accordance with the Prentice Hall
Replacement Lease Requirements, with the sole exception being that the
rental rate under the Prentice Hall Renewal is less than $12.00 per square
foot on an annual basis on a Triple Net Rent Basis, but greater than $9.00
per square foot on an annual basis on a Triple Net Rent Basis, then from
and after such Prentice Hall Renewal the Applicable Prentice Hall
Principal Liability shall be
$21,000,000;
|
in each
case above, the Applicable Prentice Hall Principal Liability shall be without
reduction on account of amortization and/or prepayment of the Loan, but in the
event that Prentice Hall does not renew its lease, the Applicable Prentice Hall
Principal Liability shall be subject to reduction if and to the extent the
conditions set forth in Paragraph 26 hereof are satisfied as set forth
therein.
“
Applicable New Cingular Wireless
Principal Liability
” with respect to the Loan shall be equal to the
following amounts upon the occurrence of the conditions indicated:
|
|
(A)
|
as
of the Closing of the Loan, and until the occurrence of any condition in
clauses (B) and (C) below and subject to clauses (C) and (D) below, the
Applicable New Cingular Wireless Principal Liability shall be $0.00
(because as of the Closing of the Loan it is assumed by Borrower and
Guarantor that New Cingular Wireless shall keep the New Cingular Wireless
Lease in full force and effect and exercise the New Cingular Wireless
Renewal on or before the New Cingular Wireless Renewal Deadline, and the
terms of the Loan are expressly underwritten on such assumption and in
consideration and reliance on the agreement by Borrower and Guarantor that
they shall immediately incur the recourse liability set forth herein in
the event that such event shall fail to
occur);
|
|
|
(B)
|
from
and after either (1) New Cingular Wireless advises Borrower or Lender
that New Cingular Wireless will not be exercising the New Cingular
Wireless Renewal, or (2) any relinquishment, termination,
cancellation or other waiver of, or any failure of conditions precedent
under the New Cingular Wireless Lease applicable to the right to exercise
the New Cingular Wireless Renewal, or (3) any amendment,
modification, termination or cancellation of the New Cingular Wireless
Lease occurs prior to New Cingular Wireless’s exercise of the New Cingular
Wireless Renewal and Borrower’s delivery of the New Cingular Wireless
Renewal Documents to Lender to evidence such renewal (unless such is made
or occurs with the prior written consent of Lender, which written consent
specifically references this clause of this Guaranty and that the consent
to the lease action does not trigger the liability under this clause), the
Applicable New Cingular Wireless Principal Liability shall be $19,125,000;
provided, however, that if a relinquishment, termination, amendment,
modification or cancellation of the New Cingular Wireless Lease or other
waiver of or any failure of conditions precedent under the New Cingular
Wireless Lease applicable to the right to exercise the New Cingular
Wireless Renewal as set forth in this subparagraph (B) occurs by virtue of
New Cingular Wireless rejecting the New Cingular Wireless Lease prior to
the New Cingular Wireless Renewal Deadline after New Cingular Wireless
files a petition in bankruptcy, then, notwithstanding any prior Applicable
New Cingular Wireless Principal Liability arising under subclauses (1),
(2) or (3) of this subparagraph (B), then the Applicable New Cingular
Wireless Principal Liability shall be
$0.00;
|
|
|
(C)
|
assuming
none of the events listed in subparagraph (B) above has theretofore
occurred, and New Cingular Wireless has not previously exercised the New
Cingular Wireless Renewal or Borrower has not delivered of the New
Cingular Wireless Renewal Documents to Lender to evidence such renewal,
then from and after June 30, 2012 (the New Cingular Wireless Renewal
Deadline), the Applicable New Cingular Wireless Principal Liability shall
be $19,125,000, unless and until New Cingular Wireless has exercised the
New Cingular Wireless Renewal and Borrower has delivered the New Cingular
Wireless Renewal Documents to Lender to evidence such renewal; and except
that if New Cingular Wireless has exercised the New Cingular Wireless
Renewal and Borrower has delivered the New Cingular Wireless Renewal
Documents to Lender to evidence such renewal, all in accordance with the
New Cingular Wireless Replacement Lease Requirements, with the sole
exception being that the rental rate under the New Cingular Wireless
Renewal is less than $10.00 per square foot on an annual basis on a Triple
Net Rent Basis, but greater than $8.00 per square foot on an annual basis
on a Triple Net Rent Basis, then from and after such New Cingular Wireless
Renewal the Applicable New Cingular Wireless Principal Liability shall be
$9,562,500;
|
in each
case above, the Applicable New Cingular Wireless Principal Liability shall be
without reduction on account of amortization and/or prepayment of the Loan, but
in the event that New Cingular Wireless does not renew its lease, the Applicable
New Cingular Wireless Principal Liability shall be subject to reduction if and
to the extent the conditions set forth in Paragraph 26 hereof are satisfied
as set forth therein.
“
New Cingular Wireless
” means
New Cingular Wireless PCS, LLC, the sole tenant of the Individual Property known
as Mack-Cali Centre VII and the tenant of 52% of the space in Mack-Cali
Centre III.
“
New Cingular Wireless Full Release
Rental
” means a minimum rental rate of not less than $10.00 per square
foot on an annual basis on a Triple Net Rent Basis.
“
New Cingular Wireless Half Release
Rental
” means a minimum rental rate of not less than $8.00 per square
foot on an annual basis on a Triple Net Rent Basis, but less than the New
Cingular Wireless Full Release Rental.
“
New Cingular Wireless Lease
”
means the lease or leases to New Cingular Wireless of the New Cingular Wireless
Space in Mack-Cali Centre VII and Mack-Cali Centre III.
“
New Cingular Wireless Renewal
”
means that certain renewal option (that is effective as of January 1, 2014)
in accordance with the provisions of the New Cingular Wireless Lease with a
minimum five year extended term at the rental rates specified in the renewal
option of the New Cingular Wireless Lease.
“
New Cingular Wireless Renewal
Deadline
” means June 30, 2012, the date on or before which the New
Cingular Wireless Renewal must be exercised by New Cingular Wireless, which date
shall not be extended for the purpose of this Guaranty even if such deadline may
be extended by mutual agreement with New Cingular Wireless and even if Lender
consents to such modification of the New Cingular Wireless Lease to effect such
extension, as any such consent by Lender shall not effect a consent to extension
of this deadline for the purpose of this Guaranty, except only that an extension
approved by Lender for purposes other than this Guaranty shall apply to this
Guaranty as well, but only if such extension is shorter than two months from the
existing New Cingular Wireless Renewal Deadline, or if longer than two months
from the existing New Cingular Wireless Renewal Deadline, such extension of this
deadline for the purpose of this Guaranty shall be only two months from the
existing New Cingular Wireless Renewal Deadline.
“
New Cingular Wireless Renewal
Documents
” means (a) a certification from the applicable Borrower to
Lender, certifying that New Cingular Wireless has exercised its renewal option
in accordance with the provisions of the New Cingular Wireless Lease and that
the New Cingular Wireless Lease as so renewed is in full force and effect, along
with (b) a copy of the renewal notice fully executed by New Cingular
Wireless and (c) an estoppel certificate from New Cingular Wireless in the
form required by Lender in connection with closing of the Loan, but subject to
requirements of the New Cingular Wireless Lease, which estoppel certificate may
not disclose, and there may not exist any as of the date of, any uncured
defaults on the part of Borrower or New Cingular Wireless with respect to the
New Cingular Wireless Lease; all in form and substance reasonably acceptable to
Lender.
“
New Cingular Wireless Replacement
Lease
” is defined in Section 3.4(d) of the Loan
Agreement.
“
New Cingular Wireless Replacement
Lease Requirements
” is defined in Section 3.4(d) of the Loan
Agreement.
“
New Cingular Wireless Space
”
means the leasable area in the Individual Property known as Mack-Cali
Centre VII and 52% of the space in Mack-Cali Centre III.
“
Prentice Hall
” means Prentice
Hall, Inc., the sole tenant of the Individual Property known as Mack-Cali Saddle
River.
“
Prentice Hall Full Release
Rental
” means a minimum rental rate of not less than $12.00 per square
foot on an annual basis on a Triple Net Rent Basis.
“
Prentice Hall Half Release
Rental
” means a minimum rental rate of not less than $9.00 per square
foot on an annual basis on a Triple Net Rent Basis, but less than the Prentice
Hall Full Release Rental.
“
Prentice Hall Lease
” means the
lease to Prentice Hall of the Prentice Hall Space.
“
Prentice Hall Renewal
” means
that certain renewal option (that is effective as of January 1, 2015) in
accordance with the provisions of the Prentice Hall Lease with a minimum five
year extended term at the rental rates specified in the renewal option of the
Prentice Hall Lease.
“
Prentice Hall Renewal
Deadline
” means April 30, 2013, the date on or before which the
Prentice Hall Renewal must be exercised by Prentice Hall, which date shall not
be extended for the purpose of this Guaranty even if such deadline may be
extended by mutual agreement with Prentice Hall and even if Lender consents to
such modification of the Prentice Hall Lease to effect such extension, as any
such consent by Lender shall not effect a consent to extension of this deadline
for the purpose of this Guaranty, except only that an extension approved by
Lender for purposes other than this Guaranty shall apply to this Guaranty as
well, but only if such extension is shorter than two months from the existing
Prentice Hall Renewal Deadline, or if longer than two months from the existing
Prentice Hall Renewal Deadline, such extension of this deadline for the purpose
of this Guaranty shall be only two months from the existing Prentice Hall
Renewal Deadline.
“
Prentice Hall Renewal
Documents
” means (a) a certification from the applicable Borrower to
Lender, certifying that Prentice Hall has exercised its renewal option in
accordance with the provisions of the Prentice Hall Lease and that the Prentice
Hall Lease as so renewed is in full force and effect, along with (b) a copy
of the renewal notice fully executed by Prentice Hall and (c) an estoppel
certificate from Prentice Hall in the form required by Lender in connection with
closing of the Loan, but subject to requirements of the Prentice Hall Lease,
which estoppel certificate may not disclose, and there may not exist any as of
the date of, any uncured defaults on the part of Borrower or Prentice Hall with
respect to the Prentice Hall Lease; all in form and substance reasonably
acceptable to Lender.
“
Prentice Hall Replacement
Lease
” is defined in Section 3.4(c) of the Loan
Agreement.
“
Prentice Hall Replacement Lease
Requirements
” is defined in Section 3.4(c) of the Loan
Agreement.
“
Prentice Hall Space
” means the
leasable area in the Individual Property known as Mack Saddle-Cali
River.
“
Recourse Guaranteed Amount
”
shall mean the aggregate of:
|
|
(A)
|
(i) a
portion of the aggregate outstanding principal balance of the Loan equal
to the Applicable Principal Liability (as hereinafter defined) whenever
the aggregate outstanding principal balance of the Loan is in excess of
the Applicable Principal Liability, or (ii) the entire aggregate
outstanding principal balance of the Loan whenever the aggregate
outstanding principal balance of the Loan is equal to or less than the
Applicable Principal Liability, and
|
|
|
(B)
|
all
interest (including specifically Post-Petition Interest) accrued and
unpaid on the Applicable Principal Liability from time to time,
and
|
|
|
(C)
|
the
proportionate share derived by dividing the Applicable Principal Liability
by the outstanding principal balance of the Loan of all other sums of any
nature whatsoever other than principal or interest from time to time
constituting part of the Loan, all of the above unaffected by modification
thereof in any bankruptcy or insolvency proceeding nor by any
determination, of whatever nature, that Lender may not have an allowed
claim for the same against Borrower as a result of any bankruptcy or
insolvency proceeding.
|
“
Triple Net Rent Basis
” shall
mean lease rental payments whereby a tenant makes both monthly base rental
payments to the landlord and the tenant is responsible, in addition, to pay for
all taxes, insurance, utilities, operating and maintenance costs. If,
for the purposes of the Loan, the rental under a lease is on another basis (such
as a gross rental basis whereby the landlord pays such costs), then the required
annual rental threshold for such lease must be “grossed up” to achieve the
necessary annual rental threshold on a Triple Net Rent Basis, after payment of
all expenses as aforesaid. The parties agree to cooperate and act
reasonably in calculating any gross up required if the renewal is on a gross
basis: for example, for a lease that requires $12 per square foot on a Triple
Net Rent Basis, with monthly payments, and with the tenant to pay for all taxes,
insurance, utilities, operating and maintenance costs, if those “taxes,
insurance, utilities, operating and maintenance costs” equal $2 psf annually,
then the “gross rent” would need to be $14, so that the landlord could pay the
$2 in expenses, and net the $12 in rent on a Triple Net Rent
Basis. For determination of the rental amount per square foot on an
annual basis, a lease shall be analyzed and averaged based on the total base
rental payments due over the currently effective term of the applicable lease
(not including unexercised extensions or renewals, or any portion of a rental
term after a termination option) less concessions (free rent and any other
discount, concession, payment, gift, allowance, payment or contribution), in
order to reflect the average effective rent paid and received over the term of
the lease. For example, if a 25,000 square foot lease with a five
year term provides for rent as follows (the entire term of occupancy, including
free rent periods; initial construction periods would not be included in the
calculation of the term of occupancy of a lease for calculation of the term of
the lease or the averaging of the rentals over such term): during
year one of $11.75 per square foot (with two month’s free rent), during year two
of $12.00 per square foot (with no free rent), during year three of $12.25 per
square foot (with no free rent), during year four of $12.50 per square foot
(with no free rent), and during year five of $12.75 per square foot (with one
month’s free rent), the total rent paid of $1,455,729.17 divided by 5 years
equals $291,145.83 or $11.65 per square foot.
This
Guaranty is intended to cover the risk that either (a) Prentice Hall, the
sole tenant of Mack-Cali Saddle River, fails to exercise the Prentice Hall
Renewal in accordance with the Prentice Hall Lease or (b) New Cingular
Wireless, the sole tenant of Mack-Cali Centre VII and tenant of 52% of the
space in Mack-Cali Centre III, fails to exercise the New Cingular Wireless
Renewal in accordance with the New Cingular Wireless Lease or (c) both fail
to exercise their renewals as aforesaid and suitable replacement tenants are not
found for the Prentice Hall Space and the New Cingular Wireless Space, as
applicable, in accordance with Paragraph 26 hereof.
2. Without
in any way limiting the liability of Guarantor under (x) that certain
Recourse Liabilities Guaranty in favor of Lender of even date herewith (the
“
Recourse Liabilities
Guaranty
”) or (y) that certain Environmental and ERISA Indemnity
Agreement made by Guarantor and Borrower in favor of Lender of even date
herewith (the “
Environmental
Indemnity
”), in the event Borrower fails to pay the Recourse Guaranteed
Amount, Guarantor shall upon written demand (not later than five (5) days after
written demand) of Lender promptly and with due diligence pay to and for the
benefit of Lender all of the Recourse Guaranteed Amount, and, in addition,
Guarantor further agrees to pay any and all Costs incurred or expended by Lender
in collecting any of the Recourse Guaranteed Amount or in enforcing any right
granted hereunder.
3. Guarantor’s
liability under this Guaranty shall be fully recourse and is expressly not
subject to, or limited by, any limitations on Borrower’s liability set forth in
the Note, and Guarantor agrees and acknowledges that Lender is relying upon the
full recourse nature of this Guaranty in making the Loan to
Borrower. Further, the scope of this Guaranty shall in no way affect
or limit any liability of Guarantor (i) in its capacity as an “Recourse
Party” under Paragraphs 8 and 9 of the Note, (ii) in its capacity as a
guarantor under the Recourse Liabilities Guaranty, or (iii) in its capacity
as an “Indemnitor” under the Environmental Indemnity.
4. In
the event that Lender elects to foreclose, to accept a deed-in-lieu of
foreclosure under the Instrument or if the Review Period (as defined below)
shall pass without Lender commencing or completing a foreclosure proceeding and
thereby a Valid Tender is effected, Guarantor hereby acknowledges and agrees
that Guarantor’s recourse liability under this Guaranty as determined above
shall be calculated after deduction from the outstanding Obligations (including,
but not limited to, all principal, accrued interest, Prepayment Premium [as
defined in the Note], advances and other charges) of (i) the amount of
money bid by or received by Lender at a foreclosure sale, or (ii) the value
of the Property and any other property received by Lender as consideration for
acceptance of a deed-in-lieu of foreclosure. With respect thereto and
any enforcement of this Guaranty that arises from and after the date on which
both (y) the Applicable Prentice Hall Principal Liability is greater than
zero ($0.00), or the Prentice Hall Renewal has been exercised by Prentice Hall
in accordance with the Prentice Hall Lease and Borrower has delivered the
Prentice Hall Renewal Documents to Lender to evidence such renewal and/or
suitable replacement tenants have been found for the Prentice Hall Space in
accordance with Paragraph 26 hereof, resulting in no possibility of
Applicable Prentice Hall Principal Liability arising hereunder, and (z) the
Applicable New Cingular Wireless Principal Liability is greater than zero
($0.00), or the New Cingular Wireless Renewal has been exercised by New Cingular
Wireless in accordance with the New Cingular Wireless Lease and Borrower has
delivered the New Cingular Wireless Renewal Documents to Lender to evidence such
renewal and/or suitable replacement tenants have been found for the New Cingular
Wireless Space in accordance with Paragraph 26 hereof, resulting in no
possibility of Applicable New Cingular Wireless Principal Liability arising
hereunder, or, if only one of the conditions contained in clauses (y) and (z)
has occurred, if Borrower issues a Deed in Lieu Schedule Applicable Principal
Liability Trigger Notice (thereby triggering both full Applicable Principal
Liability hereunder as set forth below in the definition of Deed in Lieu
Schedule Applicable Principal Liability Trigger Notice, and permitting Borrower
and Guarantor the option to commence the process set forth in the remainder of
this Section 4), Guarantor and Lender hereby agree as follows (and if both
(A) the Prentice Hall Renewal has been exercised by Prentice Hall in
accordance with the Prentice Hall Lease and Borrower has delivered the Prentice
Hall Renewal Documents to Lender to evidence such renewal and/or suitable
replacement tenants have been found for the Prentice Hall Space in accordance
with Paragraph 26 hereof or Prentice Hall has rejected the Prentice Hall
Lease prior to the Prentice Hall Renewal Deadline after Prentice Hall files a
petition in bankruptcy as set forth in subparagraph (B) of the definition
of Applicable Prentice Hall Principal Liability, resulting in no possibility of
Applicable Prentice Hall Principal Liability arising hereunder, and (B) the
New Cingular Wireless Renewal has been exercised by New Cingular Wireless in
accordance with the New Cingular Wireless Lease and Borrower has delivered the
New Cingular Wireless Renewal Documents to Lender to evidence such renewal
and/or suitable replacement tenants have been found for the New Cingular
Wireless Space in accordance with Paragraph 26 hereof or New Cingular
Wireless has rejected the New Cingular Wireless Lease prior to the New Cingular
Wireless Renewal Deadline after New Cingular Wireless files a petition in
bankruptcy as set forth in subparagraph (B) of the definition of Applicable
New Cingular Wireless Principal Liability, resulting in no possibility of
Applicable New Cingular Wireless Principal Liability arising hereunder, then the
following provisions of this Paragraph 4 shall have no further force or
effect):
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(a)
|
Deed in Lieu /
Foreclosure Definitions
. The following terms shall have
the meanings set forth below with respect to this Guaranty and such
valuation:
|
“
Conveyance Date
” means the
earliest to occur of: (i) the later of (a) the date on which title
vests in the purchaser at the foreclosure sale of the Property pursuant to the
Instrument, or (b) the date on which Borrower’s statutory right of
redemption shall expire or be waived; (ii) a Valid Tender Date; or
(iii) the date of Deed in Lieu Closing.
“
Deed in Lieu Agreement
” means
an Agreement Regarding Transfer in Lieu of Foreclosure between, on the one hand,
Borrower and Guarantor (as defined in the Loan Agreement), and, on the other,
Lender, in form and substance acceptable to Lender, duly executed and delivered
by the parties thereto, which Agreement shall set forth true, correct and
complete copies of the Deed in Lieu Schedule and the forms of the Deed in Lieu
Documents, as the same have been approved by Lender.
“
Deed in Lieu Schedule
” means
schedules prepared by Borrower, in form and substance reasonably acceptable to
Lender, which schedules shall be certified by a representation and warranty of
Borrower (to the best knowledge of Borrower after inquiry of Borrower’s
management and leasing personnel regarding the information below) as containing
true, correct and complete of the following information:
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(i)
|
Rent
Rolls for the Property;
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(ii)
|
lists
of all Leases and all amendments, modifications, subleases, consents,
waivers, assignments and subleases with respect thereto (copies of which
must be delivered to Lender in connection therewith, together with
Borrower’s current “bible” abstracts for each lease, with originals to be
delivered to Lender upon any Deed in Lieu
Closing);
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(iii)
|
lists
of all contracts relating to the Property and all amendments,
modifications, consents, waivers and assignments with respect thereto
(copies of which must be delivered to Lender in connection therewith, with
originals to be delivered to Lender upon any Deed in Lieu
Closing);
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(iv)
|
lists
of any and all uncured notices of violation of any law, regulation,
ordinance, lease, contract, covenant, condition or insurance policy
received by Borrower, together with a true, correct and complete copy
thereof; and
|
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(v)
|
lists
of any and all unpaid existing or future obligations to tenants, together
with copies of all documents (contracts, bids, budgets, proposals) related
thereto, with originals to be delivered to Lender upon any Deed in Lieu
Closing;
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(vi)
|
an
inventory of all books and records of Borrower or Guarantor with respect
to the Property to the extent not included in the foregoing items;
and
|
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(vii)
|
such
other information with respect to the Property as Lender may reasonably
require.
|
“
Deed in Lieu Agreement
Deliveries
” means the execution and delivery of the Deed in Lieu
Agreement by Borrower and Lender, together with any deliveries to be made
thereunder as of the execution and delivery thereof.
“
Deed in Lieu Foreclosure Analysis
Period
” means the period of time from the date of an Event of Default
until ninety (90) days thereafter, during which Lender shall review the items
Lender requires in a remedial or enforcement action, including, but not limited
to, those items to be delivered in Deed in Lieu Schedule Deliveries in order to
confirm the completion and accuracy thereof, and any other information that
Lender is entitled to review under the Loan Document or with respect to any
remedial or enforcement action.
“
Deed in Lieu Schedule
Deliveries
” means the following items to be delivered to Lender in
connection with the Deed in Lieu Schedule:
|
(i)
|
a
written certification from Borrower in favor of Lender consistent with
Section 3.16 of the Instrument, duly executed and delivered, and
completed with all information to be set forth as described therein, with
true, correct and complete copies of applicable attachments;
and
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(ii)
|
true,
correct and complete copies of all items disclosed on the schedules to the
Deed in Lieu Schedule; and
|
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(iii)
|
if
applicable, a Deed in Lieu Schedule Applicable Principal Liability Trigger
Notice.
|
On or
before fifteen (15) days after delivery of the Deed in Lieu Schedule Deliveries
to Lender, Lender shall deliver to Borrower and Guarantor drafts of the Deed in
Lieu Agreement and the Deed in Lieu Documents.
“
Deed in Lieu Schedule Applicable
Principal Liability Trigger Notice
” means that Borrower has duly executed
and delivered to Lender in writing a notice setting forth that (a) if the
Applicable Prentice Hall Principal Liability is then zero ($0.00) as set forth
above solely because the Prentice Hall Renewal Deadline has not yet occurred
(and not because of a relinquishment, termination, amendment, modification or
cancellation of the Prentice Hall Lease or other waiver of or any failure of
conditions precedent under the Prentice Hall Lease applicable to the right to
exercise the Prentice Hall Renewal as set forth in subparagraph (B) of the
definition of Applicable Prentice Hall Principal Liability that occurs by virtue
of Prentice Hall rejecting the Prentice Hall Lease prior to the Prentice Hall
Renewal Deadline after Prentice Hall files a petition in bankruptcy), that from
and after such notice, the Applicable Prentice Hall Principal Liability shall be
$42,000,000, as if one of the circumstances set forth in clause (B)(1), (2) or
(3) of the definition of Applicable Prentice Hall Principal Liability has
occurred, but subject to reduction thereafter prior to payment pursuant to the
terms of subparagraph (C) of such definition and/or Paragraph 26 below, and
(b) if the Applicable New Cingular Wireless Principal Liability is then
zero ($0.00) as set forth above solely because the New Cingular Wireless Renewal
Deadline has not yet occurred (and not because of a relinquishment, termination,
amendment, modification or cancellation of the New Cingular Wireless Lease or
other waiver of or any failure of conditions precedent under the New Cingular
Wireless Lease applicable to the right to exercise the New Cingular Wireless
Renewal as set forth in subparagraph (B) of the definition of Applicable
New Cingular Wireless Principal Liability occurs by virtue of New Cingular
Wireless rejecting the New Cingular Wireless Lease prior to the New Cingular
Wireless Renewal Deadline after New Cingular Wireless files a petition in
bankruptcy), that from and after such notice, the Applicable New Cingular
Wireless Principal Liability shall be $19,125,000, as if one of the
circumstances set forth in clause (B)(1), (2) or (3) of the definition of
Applicable New Cingular Wireless Principal Liability has occurred, but subject
to reduction thereafter prior to payment pursuant to the terms of subparagraph
(C) of such definition and/or Paragraph 26 below.
“
Deed in Lieu Closing
” means
the closing of the conveyance of the Property to Lender or Lender’s designee by
Borrower in lieu of foreclosure pursuant to a Deed in Lieu Agreement and Deed in
Lieu Closing Deliveries.
“
Deed in Lieu Closing
Deliveries
” means the following items to be delivered to Lender in
connection with a Deed in Lieu Closing:
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(i)
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the
Deed in Lieu Documents;
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(ii)
|
to
the extent in Borrower’s possession or control (and any items not in
Borrower’s possession or control must be noted in connection with the Deed
in Lieu Agreement), all original documents, including all leases,
contracts, books and records and other items scheduled in the Deed in Lieu
Agreement, or to be scheduled in the Deed in Lieu Agreement pursuant to
the definition thereof, together with all keys and codes for security,
maintenance and operating systems at or for the
Property;
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(iii)
|
issuance
of Owner’s Title Insurance Policies in the name of Lender or Lender’s
designee (and, if and to the extent permitted by First American Title
Insurance Company, Lender shall endeavor to have such insurance issued at
“reissue” rates), subject to no liens, exceptions or encumbrances not
previously approved in writing by Lender or permitted without Lender’s
consent pursuant to the Loan documents (title to the Property must be in
the same condition as approved by Lender on the date hereof, as evidenced
by Lender’s mortgagee title insurance policy, subject only to subsequent
liens and encumbrances previously approved by Lender or permitted without
Lender’s consent pursuant to the Instrument, and only to the extent in
compliance with the Documents and the Deed in Lieu Agreement), and
endorsement of the existing Mortgagee Title Insurance Policies to update
the status of title thereunder, and to add “non-merger” endorsements
acceptable to Lender (insuring that the Deed in Lieu Closing and Deed in
Lieu Documents have not merged with the Instrument, and that the
Instrument remains a valid lien on the Property);
and
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(iv)
|
any
other items reasonably required by Lender or Lender’s title insurance
company, including, but not limited to, any lien waivers, lien releases,
contractor’s affidavits or similar items required to cure any outstanding
title matters.
|
Lender
shall be relying on the Deed in Lieu Schedule Deliveries, the Deed in Lieu
Agreement, the Deed in Lieu Documents and the Deed in Lieu Closing Deliveries,
and, accordingly, Borrower and Guarantor shall have liability for the
representations, warranties and covenants of Borrower and Guarantor as therein
set forth, subject to any limitations thereon as may be set forth therein (and
the survival period for representations and warranties thereunder, other than
the Covenant Against Grantor’s Acts in the Deed, shall be limited to one (1)
year).
“
Deed in Lieu Documents
” means
the following documents to be delivered at the Deed in Lieu Closing by Borrower
and/or Guarantor to Lender or Lender’s designee in connection with a transfer in
lieu of foreclosure, all in form and substance acceptable to Lender, and all
duly executed and delivered by the applicable parties thereto (and, at Lender or
Lender’s designee’s option, the following items (with the exception of the Deed
in Lieu Guaranty Payment) that are to be executed and delivered by Borrower
and/or Guarantor shall be deposited into an escrow with Lender’s attorney during
the Review Period upon or after execution and delivery of the Deed in Lieu
Agreement):
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(i)
|
a
Bargain and Sale Deed (with Covenant Against Grantor’s Acts) conveying
good and marketable title to the Property to Lender, together with an
affidavit of consideration and any other documents necessary to complete
the conveyance and confirm the amount of any transfer tax (including a
RTF-1 form and Seller’s Residency Certification/Exemption form, and Lender
shall execute the RTF-1EE Affidavit of
Consideration);
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(ii)
|
a
Bill of Sale conveying title to the personal property covered by the
Instrument;
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(iii)
|
an
Assignment of Contracts conveying Borrower’s interest in all contracts
relating to the Property, which shall be specified in such assignment and
each of which shall be subject to the approval of
Lender;
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(iv)
|
a
Non-Foreign Affidavit of each party conveying real
property;
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(v)
|
Notices
to Tenants and Contract Parties with respect to such
conveyance;
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(vi)
|
Title
Affidavits and Gap Indemnities as required by the Title Insurance Company
in connection with the issuance, or endorsement, of the applicable Title
Insurance Policies;
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(vii)
|
Evidence
of Authority of each Borrower and
Guarantor;
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(viii)
|
Termination
of all Management Agreements and other contracts not approved by
Lender;
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(ix)
|
Agreement
Regarding Value with respect to the value of the
Property;
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(x)
|
the
Deed in Lieu Guaranty Payment, determined as of the Conveyance
Date;
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(xi)
|
a
full Release of Lender, and, upon completion of the Deed in Lieu Closing,
a Release of Guarantor in favor of Guarantor and a Covenant Not to Sue in
favor of Borrower (each subject to the surviving obligations of Borrower
and Guarantor under the Deed in Lieu Agreement and the Deed in Lieu
Documents);
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(xii)
|
an
agreement setting forth confirmation of the absolute nature of the
conveyance, together with a legal opinion with respect thereto and the
conveyance.
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(xiii)
|
payment
of closing costs (any transfer tax, lien searches, title costs and
premiums and inspection costs, appraisal costs, costs of physical and
environmental inspections, and Lender’s reasonable attorneys fees);
provided, however, if and to the extent permitted by the title insurance
company issuing the owner’s policy of title insurance and available at a
discount to two owner’s policies of title insurance, Lender shall endeavor
to have the owner’s policy of insurance issued at as an “open commitment”,
pursuant to which such commitment commits (for a period of not less than
two years) to insure both (A) the transfer of title to the Property
at the Deed in Lieu Closing, and (B) the subsequent transfer to a
third party buyer, with Borrower responsible for 50% of such premium for
such “open” commitment in such
event;
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(xiv)
|
any
other documents to be delivered at closing under the Deed in Lieu
Agreement or the Deed in Lieu Schedule;
and
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(xv)
|
any
other documents reasonably required by Lender or Lender’s title insurance
company.
|
“
Deed in Lieu Guaranty Payment
”
means payment of the amounts due under the Recourse Carveout Guaranties (as
defined in the Loan Agreement) and this Guaranty as of the Conveyance
Date.
“
Review Period
” means the
period of time from the date of the Tender and concluding on the later of
(a) if Lender commences a foreclosure action with respect to the Property
by the end of the Deed in Lieu Foreclosure Analysis Period, the period of two
hundred seventy (270) days after the end of the Deed in Lieu Foreclosure
Analysis Period, or (b) if Lender does not commence a foreclosure action
with respect to the Property by the end of the Deed in Lieu Foreclosure Analysis
Period, ninety (90) days after the date of the Tender; provided that in either
event the Review Period shall end as of the date of acceptance of the Tender by
Lender or Lender’s designee as evidenced by the execution and delivery of the
Deed in Lieu Agreement by Borrower, Guarantor and Lenders, including tender by
Borrower and Guarantors of the Deed in Lieu Agreement Deliveries.
“
Tender
” means the tender by
Borrower and Guarantors of the Deed in Lieu Schedule Deliveries (including all
of the items described therein).
“
Valid Foreclosure Cooperation
”
means (x) Borrower shall not voluntarily cause or create any liens on the
Property, (y) there shall be no contest, delay, or other hindrance or
opposition by Borrower, Guarantor or any affiliate thereof (nor any collusion by
Borrower, Guarantor or any affiliate thereof with any third party in any
contest, delay, or other hindrance or opposition) to any of Lender’s remedial or
enforcement actions in accordance with the Loan Documents, including, but not
limited to, foreclosure and placing a receiver to operate the Property, and no
failure, within two (2) business days, to consent to any remedial or enforcement
action in accordance with the Loan Documents proposed by Lender in writing, nor
any breach or violation by Borrower or Guarantor of any orders or interim
agreements entered into in such remedial or enforcement actions, and
(z) Borrower shall not be or become a debtor in any bankruptcy proceeding
or the subject of any other insolvency proceeding (other than a bankruptcy or
other insolvency proceeding commenced by Lender or any of their
Affiliates).
“
Valid Tender
” means either of
(the first to occur of) (A) (i) a Tender, and (ii) the passage of
the Review Period, during which period there shall be no breach of the Valid
Foreclosure Cooperation condition, or (B) the execution and delivery of the
Deed in Lieu Agreement by Borrower, Guarantor and Lenders, including tender by
Borrower and Guarantors of the Deed in Lieu Agreement Deliveries, provided that
from and after such date an until Deed in Lieu Closing there shall be no breach
of the Valid Foreclosure Cooperation condition.
“
Valid Tender Date
” means the
date on which a Tender becomes a Valid Tender.
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(b)
|
Due Diligence
Review
. Lender or Lender’s designee shall have the
Review Period to accept or reject a Deed in Lieu Closing, in order to
enable Lender or Lender’s designee to conduct all due diligence with
respect to the Property and the Deed in Lieu Closing that Lender or
Lender’s designee may require, including, but not limited to, review of
title to the Property, analysis of the leasing of the Property, physical
inspection of the Property, evaluation of any construction work in
progress (and documentation of the status thereof, including the remaining
scope of work and outstanding payments thereunder), obtaining an
environmental assessment of the Property, obtaining such estoppels from
tenants or contract parties as Lender may require, review, inspect and
audit of the books and records of the Property, and an appraisal of the
Property, as determined by the MAI appraiser in accordance
herewith. Lender shall order an appraisal to be completed
within ninety (90) days of a Tender, subject to updating as of the
Conveyance Date if desired by Lender. If Lender or Lender’s
designee reject a Deed in Lieu Closing on account of any items disclosed
in such review, then the Tender shall be deemed to be rejected and Lender
shall have no obligation to accept the transfer in lieu of foreclosure,
but a Valid Tender shall remain a Valid Tender despite such rejection, and
in such event the value of the Property as set forth in Lender’s MAI
appraisal of the Property shall be adjusted by the impact of such matters
discovered in such due diligence review, as determined by the MAI
appraiser.
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(c)
|
Tax and Assessment
Obligations
. Borrower’s and Guarantor’s liability for
the payment of taxes and assessments under Section 8(b) of the Note
(including the pro-rata share of then current real estate taxes and
assessments) shall cease as to taxes and assessments that arise or accrue
from and after the ninety (90) days after the date of the Tender, but only
if there shall be no breach of the Valid Foreclosure Cooperation condition
from and after the date of the
Tender.
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(d)
|
Reduction of
Applicable Principal Liability
. From and after the Valid
Tender Date, Lender agrees that if Lender collects amounts under the Cash
Management Agreement (as defined in the Loan Agreement) and applies such
amounts to reduce the principal balance of the Obligations, then, so long
as there shall be no breach of the Valid Foreclosure Cooperation
condition, the Applicable Principal Liability shall be reduced, on a
dollar for dollar basis, by the amounts so allocated to the reduction of
the principal balance of the Obligations, such amounts to be allocated on
a pro rata basis between the Applicable Prentice Hall Principal Liability
and the Applicable New Cingular Wireless Principal Liability, if
applicable.
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(e)
|
Recourse Guaranteed
Amount
. Notwithstanding any provision contained or
implied herein to the contrary, Lender and Guarantor agree that the
Recourse Guaranteed Amount which may become due under this Guaranty shall
be determined and fixed as of the Conveyance Date (and projected, as
necessary to as of the Conveyance Date). Such amount shall be
paid to Lender as of the following, as applicable, the date of Deed in
Lieu Closing, or, if there is no Deed in Lieu Closing, promptly after
demand of Lender on or after the Valid Tender Date (if the Valid Tender
Date is established by a method other than the date of the Deed in Lieu
Closing), and Guarantor’s payment to Lender of such determined and fixed
Recourse Guaranteed Amount shall constitute Guarantor's performance in
full of its obligations under this
Guaranty.
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(f)
|
Default
Interest
. From and after ninety (90) days after the date
of the Tender, but only if there shall be no breach of the Valid
Foreclosure Cooperation condition from and after the date of the Tender,
Lender agrees that Lender shall forebear from collection of Default
Interest and shall instead require payment of only base interest;
provided, however, if at any time such conditions fail, then all such
Default Interest shall be reinstated and the forbearance shall
terminate.
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(g)
|
Operating Expenses
Required for Lease Compliance
. From and after ninety
(90) days after the date of an Event of Default (and provided Borrower has
made a Tender to Lender within such ninety (90) day period), but only if
there shall be no breach of the Valid Foreclosure Cooperation condition
from and after the date of the Tender, Lender agrees that provided that,
and for so long as, Lender or a receiver selected by Lender receives and
controls all of the Property revenue through the cash management system
set forth in the Cash Management Agreement or other collection mechanism
approved by Lender in Lender’s sole discretion, then Lender or such
receiver shall apply such revenue towards the payment of such operating
expenses related to ongoing property operation to the extent sufficient to
meet the operating expense recommendations of the receiver selected by
Lender or, if a receiver has not been appointed, the operating expense
recommendations of the property manager engaged by Lender, and provided
that revenue from the Property is sufficient to fund such utilities and
operating expenses. If Borrower and Guarantor believe that any
utilities or operating expenses should be paid in excess of those for
which Lender has provided funding as set forth above during such period,
Borrower and Guarantor may provide Lender with written notice requesting
such funding of additional expenses, which Lender shall consider and shall
deliver to such receiver or property manager, as
applicable.
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5. In
the event that Lender accepts a deed-in-lieu of foreclosure, the value of the
Property and any other property received by Lender shall be conclusively
determined by an independent MAI appraiser, selected by Lender in its sole
discretion, having not less than five (5) years’ experience in appraising
commercial real estate in the area where the Land is located, unless in
connection with such acceptance of such deed-in-lieu of foreclosure Lender
agrees to an alternate valuation. The fees and costs of said MAI
appraiser shall be paid by Borrower.
6. Guarantor’s
recourse liability under this Guaranty shall continue with respect to any and
all Obligations, but only up to the Recourse Guaranteed Amount, until Lender has
been paid the full amount of the Obligations
from any person or
entity at the time of foreclosure or following an Event of Default; provided,
however, that Guarantor’s recourse liability under this Guaranty shall be in
addition to, and not in lieu of, any liability or obligations of Guarantor under
any other document or other instrument delivered by Guarantor in connection with
the Loan. Guarantor agrees that no portion of any sums applied, from
time to time, in reduction of the Loan (other than sums paid by Guarantor
pursuant to the provisions of this Guaranty after demand therefore from Lender)
shall be deemed to have been applied in reduction of the Recourse Guaranteed
Amount until such time as that portion of the Loan which is not the Recourse
Guaranteed Amount has been paid in full, it being the intention hereof that the
Recourse Guaranteed Amount shall be the last portion of the Loan to be paid and
that this Guaranty shall remain in full force and effect and shall not be deemed
discharged until the date upon which all of the obligations and liabilities of
Guarantor under this Guaranty shall have been performed and discharged by
Guarantor in accordance with the provisions of this
Guaranty. Guarantor hereby acknowledges and agrees that Lender shall
have the option of pursuing either or both of the following
options:
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(i)
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In
the event Lender elects to foreclose under any applicable Instrument or to
accept a deed in lieu of foreclosure thereunder, Guarantor hereby
acknowledges and agrees that Guarantor’s recourse liability as determined
above shall be calculated after deducting from the outstanding
indebtedness (including, but not limited to, all principal, accrued
interest, Prepayment Premium, advances and other charges) (A) in the
event Lender elects to foreclose, the amount of money bid by or received
by Lender at a foreclosure sale, or (B) in the event Lender elects to
accept a deed in lieu of foreclosure, the value of the Property and any
other property received by Lender as consideration for acceptance of a
deed in lieu of foreclosure, as agreed upon by Lender and Guarantor in
connection therewith (or as determined by the independent MAI appraiser
referred to in Paragraph 5 above);
and/or
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(ii)
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Guarantor
hereby acknowledges and agrees that Lender shall have the right to seek
collection of the recourse portion of the Loan under this Guaranty (which
shall not exceed the Recourse Guaranteed Amount) from Guarantor without
the commencement of any foreclosure
proceedings.
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7. Guarantor's
recourse liability for the Recourse Guaranteed Amount (which amount may be zero
from time to time, and may be reduced to zero pursuant to Paragraph 26 of
this Guaranty) shall continue until Lender has been paid in full.
8. Guarantor
expressly waives presentment for payment, demand, notice of demand and of
dishonor and nonpayment of the Obligations, notice of intention to accelerate
the maturity of the Obligations or any part thereof, notice of disposition of
collateral, notice of acceleration of the maturity of the Obligations or any
part thereof, protest and notice of protest, diligence in collecting, and the
bringing of suit against any other party. Guarantor agrees that
Lender shall be under no obligation to: (i) notify Guarantor of its
acceptance of this Guaranty or of any advances made or credit extended on the
faith of this Guaranty; (ii) notify Guarantor of Borrower’ s failure to
make payments due under the Note as it matures or the failure of Borrower to pay
any of the Obligations as they mature or any default in performance of any
obligations required by the Note, the Instrument or any other Document;
(iii) use diligence in preserving the liability of any person with respect
to the Obligations, or with respect to the Note, the Instrument or any other
Document; (iv) use diligence in collecting payments or demanding
performance required by the terms of the Note, the Instrument or any other
Document; or (v) bring suit against, or take any other action against, any
party to enforce collection of the Note, the Instrument or any other
Document.
9. Guarantor
waives all legal defenses (at law or in equity) given or available to sureties
or guarantors other than the actual payment in full of all Obligations, and
waives all legal defenses (at law or in equity) based upon the validity,
legality or enforceability of the Note, the Instrument or any other Document
(including, without limitation, any claim that the Note, the Instrument or any
other Document is or was in any way usurious), or otherwise with respect to the
following actions with respect to the Obligations, as to which Guarantor
consents that Lender may from time to time, before or after any default by the
Borrower, with or without further notice to or assent from
Guarantor:
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(a)
|
exchange
with, release or surrender, either with or without consideration, to the
Borrower or to any Guarantor, pledgor or grantor any collateral, or waive,
release or subordinate any security interest, in whole or in part, now or
hereafter held as security for the Loan and/or any of the
Obligations;
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(b)
|
waive
or delay the exercise of any of its rights or remedies against any person
or entity, including but not limited to the Borrower and/or any guarantor,
which waiver or delay shall not preclude the Lender from further exercise
of any of its rights, powers or privileges expressly provided for herein
or otherwise available, it being understood that all such rights and
remedies are cumulative;
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(c)
|
release,
either fully or partially, any person or entity, including but not limited
to the Borrower, guarantor, endorser, surety or any judgment
debtor;
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(d)
|
proceed
against the Guarantor for payment of the Recourse Guaranteed Amount,
without first proceeding against or joining the Borrower, any other
guarantor, surety, endorser of the Note, or any property securing payment
of the Note, the Instrument, or any other Loan
Documents;
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(e)
|
renew,
extend or modify the terms of the Loan or any instrument or agreement
evidencing the Loan and/or any of the
Obligations;
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(f)
|
apply
payments by the Borrower, the Guarantor, or any other person or entity to
the reduction of the Loan and/or Obligations in such manner and in such
amounts and at such time or times and in such order and priority as Lender
shall determine;
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(g)
|
permit
any sale, transfer or encumbrance of the Property or any part thereof;
and
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(h)
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generally
deal with the Borrower or any of the security or other person or party as
the Lender shall determine.
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The
Guarantor hereby ratifies and confirms any such exchange, release, surrender,
subordination, waiver, delay, proceeding, renewal, extension, modification or
application, or other dealing, all of which actions shall be binding upon
Guarantor who hereby waives all defenses, counterclaims or set-offs which
Guarantor might otherwise have as a result of such actions, and who hereby
agrees to remain bound under this Guaranty. In accordance with the
terms of this Guaranty, Guarantor agrees and acknowledges that it shall be
primarily liable for payment of the Recourse Guaranteed Amount (subject only to
the limitations set forth above) in the event of default or
foreclosure.
10. Guarantor
acknowledges and agrees that from time to time, at Lender’s discretion, with or
without valuable consideration, without authorization from or notice to
Guarantor, and without impairing, modifying, releasing, limiting or otherwise
affecting Guarantor ’s liability under this Guaranty, Lender may:
(i) alter, compromise, accelerate, renew, extend or change the time or
manner for the payment of any or all of the Obligations
due under the Note, the
Instrument or any other Document; (ii) increase or reduce the rate of
interest with respect to the Note or Loan; (iii) take and surrender
security, exchange security by way of substitution, or in any way Lender deems
necessary take, accept, withdraw, subordinate, alter, amend, modify or eliminate
security; (iv) add or release or discharge endorsers, guarantors or other
obligors; (v) make changes of any kind whatsoever in the terms of the Note,
the Instrument or any other Document; (vi) make changes of any kind
whatsoever in the manner Lender does business with Borrower; (vii) settle
or compromise with Borrower or any other person(s) liable on the Note, the
Instrument or any other Document on such terms as Lender determines;
(viii) apply all moneys received from Borrower or others, or from any
security held (whether or not held under a mortgage, deed of trust, deed to
secure debt or other instrument), in such manner upon the Note or upon any other
obligation arising under the Instrument or any other Document (whether then due
or not) as Lender determines to be in its best interest, and without in any way
being required to marshal securities or assets or to apply all or any part of
such moneys upon any particular part of the Note, the Instrument or any other
Document, except to the extent as may be expressly provided
therein.
11. Guarantor
agrees that Lender is not required to retain, hold, protect, exercise due care
with respect to, perfect security interests in, or otherwise assure or safeguard
any security for the Note or the Loan. Guarantor agrees and
acknowledges that Lender’s failure to do any of the foregoing and Lender’s
failure to exercise any other right or remedy available to Lender shall in no
way affect or alter any of Guarantor’s obligations under this Guaranty or any
security furnished by Guarantor, or give Guarantor any recourse against
Lender.
12. Guarantor
agrees that its liability under this Guaranty shall not be modified, changed,
released, limited or impaired in any manner whatsoever on account of any or all
of the following: (i) the incapacity, death, disability, dissolution or
termination of Guarantor, Borrower, Lender or any other person or entity;
(ii) the failure by Lender to file or enforce a claim against the estate
(either in administration, bankruptcy or other proceeding) of Borrower or any
other person or entity; (iii) the inability of Lender, Guarantor or any
other person or entity to recover from Borrower or any other party due to the
expiration of any statute of limitations or due to any other cause whatsoever;
(iv) the claim or assertion (whether or not successful) by Borrower or any
other person or entity of any available defenses, set-off rights or
counterclaims (other than payment in full of the Obligations) during any
judicial, arbitration, or mediation proceeding; (v) the transfer(s) of any
portion of the Property encumbered by the Instrument or of any other secured
collateral by other instrument securing payment of the Obligations;
(vi) any modifications, extensions, amendments, consents, releases or
waivers with respect to the Note, the Instrument or any other Document,
including, but not limited to, any other instrument that may now or hereafter
secure the payment of the Obligations or this Guaranty; (vii) Lender’s
failure to give any notice to Guarantor of any default under the Note, the
Instrument or any other Document, including, but not limited to, any other
instrument securing the payment of the Obligations or this Guaranty;
(viii) Guarantor is or becomes liable for any indebtedness owed by Borrower
to Lender other than that which is secured by this Guaranty; or (ix) any
impairment, modification, change, release or limitation of the liability of, or
stay of actions or lien enforcement proceedings against, Borrower, its property,
or its estate in bankruptcy resulting from the operation of any present or
future provision of 11 U.S.C. §101
et. seq.
or any other present
or future federal or state insolvency, bankruptcy or similar law (all of the
foregoing hereinafter collectively called “
Applicable Bankruptcy Law
”) or
from the decision of any court.
13. Guarantor
agrees and acknowledges that Lender shall not be required to (i) pursue any
other remedies before invoking the benefits of the guaranties contained in this
Guaranty, or (ii) make demand upon or institute suit or otherwise pursue or
exhaust its remedies against Borrower or any surety other than Guarantor or to
proceed against any security now or hereafter existing for the payment of any of
the Obligations. Guarantor also acknowledges that Lender may maintain
an action on this Guaranty without joining Borrower in such action and without
bringing a separate action against Borrower.
14. If
the Note, the Instrument or any other Document cannot be enforced against
Borrower for any reason whatsoever (including but not limited to the legal
defenses of
ultra
vires
, lack of authority, illegality,
force majeure
, act of God,
usury or impossibility), such unenforceability shall not affect Guarantor’s
liability under this Guaranty. Guarantor agrees that it shall be
liable to the extent provided in this Guaranty notwithstanding the fact that
Borrower may be held not to be liable for such Obligations
or not liable to the
same extent as Guarantor’s liability.
15. Guarantor
agrees that in the event that Borrower does not or otherwise is unable to pay
the Obligations for any reason (including, without limitation, liquidation,
dissolution, receivership, conservatorship, insolvency, bankruptcy, assignment
for the benefit of creditors, sale of all or substantially all assets,
reorganization, arrangement, composition, or readjustment of, or other similar
proceedings affecting the status, composition, identity, existence, assets or
obligations of Borrower, or the disaffirmance or termination of any of the
Obligations in or as a result of any such proceeding), Guarantor shall pay the
Obligations to the extent provided by the terms of this Guaranty and such
occurrence shall in no way affect Guarantor’s obligations under this
Guaranty.
16. Should
the status, structure or composition of Borrower change, Guarantor agrees that
this Guaranty shall continue and shall also cover the Recourse Guaranteed Amount
of the Obligations of Borrower under the new status, structure or composition of
Borrower, or of Borrower’s successor. This Guaranty shall remain in
full force and effect notwithstanding any transfer of the Property encumbered by
the Instrument.
17. In
the event any payment by Borrower to Lender is held to constitute a preference
under any Applicable Bankruptcy Law, or if for any other reason Lender is
required to refund or does refund such payment or pay such amount to any other
party, Guarantor acknowledges that such payment by Borrower to Lender shall not
constitute a release of Guarantor from any liability under this Guaranty, but
Guarantor agrees to pay such amount to Lender upon demand and this Guaranty
shall continue to be effective or shall be reinstated, as the case may be, to
the extent of any such payment or payments.
18. Guarantor
agrees that it shall not have (i) the right to the benefit of, or to direct
the application of, any security held by Lender (including the Property covered,
conveyed or encumbered by the Instrument and any other instrument securing the
payment of the Obligations), (ii) any right to enforce any remedy which
Lender now has or hereafter may have against Borrower, or (iii) any right
to participate in any security now or hereafter held by Lender.
19. Guarantor
also agrees that it shall not have (i) any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation or
other right or remedy of Guarantor against Borrower or against any security
resulting from the exercise or election of any remedies by Lender (including the
exercise of the power of sale under the Instrument), or (ii) any defense
arising by reason of any disability or other defense of Borrower or by reason of
the cessation, from any cause (other than as a result of payment in full of the
Obligations), of Borrower’s liability under the Note, the Instrument or any
other Document.
20. Guarantor
agrees that any payment it makes of any amount pursuant to this Guaranty shall
not in any way entitle Guarantor to any right, title or interest (whether by way
of subrogation or otherwise) in and to the Note, the Instrument or any other
Document, or any proceeds attributable to the Note, the Instrument or any other
Document, unless and until the full amount of the Obligations owing to Lender
has been fully paid. At such time as the full amount of the
Obligations owing to Lender has been fully paid, Guarantor shall be subrogated
as to any payments made by it to Lender’s rights against Borrower and/or any
endorsers, sureties or other guarantors. For the purposes of the
preceding sentence only, the full amount of the Obligations shall not be deemed
to have been paid in full by foreclosure of the Instrument or by acceptance of a
deed-in-lieu of foreclosure, and Guarantor hereby waives and disclaims any
interest which it might have in the Property encumbered by the Instrument or
other collateral security for the Obligations, by subrogation or otherwise,
following such foreclosure or Lender’s acceptance of a deed-in-lieu of
foreclosure.
21. Guarantor
expressly subordinates its rights to payment of any indebtedness owing from
Borrower to Guarantor (including, but not limited to, property management and
construction management fees and leasing commissions, subject, however, to any
rights under those certain Conditional Assignments of Management Agreement and
Subordination of Management Agreement and Management Fees), whether now existing
or arising at any time in the future, to the right of Lender to first receive or
require payment of the Obligations in full (and including interest accruing on
the Note after any petition under Applicable Bankruptcy Law, which post-petition
interest Guarantor agrees shall remain a claim that is prior and superior to any
claim of Guarantor notwithstanding any contrary practice, custom or ruling in
proceedings under such Applicable Bankruptcy Law). Guarantor further
agrees, upon the occurrence of an Event of Default (subject, however, to any
rights under those certain Conditional Assignments of Management Agreement and
Subordination of Management Agreement and Management Fees), not to accept any
payment or satisfaction of any kind of indebtedness of Borrower to Guarantor or
any security for such indebtedness without Lender’s prior written
consent. If Guarantor should receive any such payment, satisfaction
or security for any indebtedness owed by Borrower to Guarantor, Guarantor agrees
to deliver the same without delay to Lender in the form received, endorsed or
assigned for application on account of, or as security for, the Recourse
Liability; until such payment, satisfaction or security is delivered, Guarantor
agrees to hold the same in trust for Lender.
22. Under
no circumstances shall the aggregate amount paid or agreed to be paid under this
Guaranty exceed the highest lawful rate permitted under applicable usury law
(the “
Maximum Rate
”) and
the payment obligations of Guarantor hereunder are hereby limited
accordingly. If under any circumstances, whether by reason of
advancement or acceleration of the unpaid principal balance of the Note or
otherwise, the aggregate amounts paid hereunder shall include amounts which by
law are deemed interest and which could exceed the Maximum Rate, Guarantor
stipulates that payment and collection of such excess amounts shall have been
and will be deemed to have been the result of a mistake on the part of both
Guarantor and Lender, and Lender shall promptly credit such excess (only to the
extent such interest payments are in excess of the Maximum Rate) against the
unpaid principal balance of the Note, and any portion of such excess payments
not capable of being so credited shall be refunded to Guarantor. The
term “
applicable law
” as
used in this paragraph shall mean the laws of the Property State (as such term
is defined in the Instrument) or the laws of the United States, whichever laws
allow the greater rate of interest, as such laws now exist or may be changed or
amended or come into effect in the future.
23. Guarantor
hereby represents, warrants and covenants to and with Lender as follows:
(i) the making of the Loan by Lender to Borrower is and will be of direct
interest, benefit and advantage to Guarantor; (ii) Guarantor is solvent, is
not bankrupt and has no outstanding liens, garnishments, bankruptcies or court
actions which could render Guarantor insolvent or bankrupt; (iii) there has
not been filed by or against Guarantor a petition in bankruptcy or a petition or
answer seeking an assignment for the benefit of creditors, the appointment of a
receiver, trustee, custodian or liquidator with respect to Guarantor or any
substantial portion of Guarantor’s property, reorganization, arrangement,
rearrangement, composition, extension, liquidation or dissolution or similar
relief under Applicable Bankruptcy Law; (iv) all reports, financial
statements and other financial and other data which have been or may hereafter
be furnished by Guarantor to Lender in connection with this Guaranty are or
shall be true and correct in all material respects and do not and will not omit
to state any fact or circumstance necessary to make the statements contained
therein not misleading and do or shall fairly represent the financial condition
of Guarantor as of the dates and the results of Guarantor’s operations for the
periods for which the same are furnished, and no material adverse change has
occurred since the dates of such reports, statements and other data in the
financial condition of Guarantor; (v) the execution, delivery and
performance of this Guaranty do not contravene, result in the breach of or
constitute a default under any mortgage, deed of trust, lease, promissory note,
loan agreement or other contract or agreement to which Guarantor is a party or
by which Guarantor or any of its properties may be bound or affected and do not
violate or contravene any law, order, decree, rule or regulation to which
Guarantor is subject; (vi) there are no judicial or administrative actions,
suits or proceedings pending or, to the best of Guarantor’s knowledge,
threatened against or affecting Guarantor which would have a material adverse
effect on either the Property or Borrower’s ability to perform its obligations
or involving the validity, enforceability or priority of this Guaranty; and
(vii) this Guaranty constitutes the legal, valid and binding obligation of
Guarantor enforceable in accordance with its terms.
24. Guarantor
will furnish to Lender the financial statements and other information as to
Guarantor as are described in Section 3.15 of the Instrument, on or before
the deadlines set forth therein. Guarantor will provide to Lender
such other financial information and statements concerning Guarantor's financial
status as Lender may request from time to time, all of which shall be in form
and substance acceptable to Lender. Guarantor shall be in default
hereunder if there is any falsity in any material respect or any material
omission in any representation or statement made by Guarantor to Lender or in
any information furnished Lender, by or on behalf of Borrower or Guarantor, in
connection with the Loan and/or any of the Obligations, as determined by Lender
in its sole and absolute discretion.
25. Guarantor
further agrees to the following:
(a) Where
two or more persons or entities have executed this Guaranty, unless the context
clearly indicates otherwise, all references herein to “
Guarantor
” shall mean the
guarantors hereunder or either or any of them. All of the obligations
and liability of said guarantors hereunder shall be joint and
several. Suit may be brought against said guarantors, jointly and
severally, or against any one or more of them, or less than all of them, without
impairing the rights of Lender against the other or others of said
guarantors. Lender may compound with any one or more of said
guarantors for such sums or sum as it may see fit and/or release such of said
guarantors from all further liability to Lender for such indebtedness without
impairing the right of Lender to demand and collect the balance of such
indebtedness from the other or others of said guarantors not so compounded with
or released. However, said guarantors agree that such compounding and
release shall in no way impair the their rights as among
themselves.
(b) Except
as otherwise provided herein, the rights of Lender are cumulative and shall not
be exhausted by its exercise of any of its rights under this Guaranty or
otherwise against Guarantor or by any number of successive actions, until and
unless all Obligations have been paid and each of the obligations of Guarantor
under this Guaranty have been performed.
(c) Intentionally
Omitted.
(d) Any
notice or communication required or permitted under this Guaranty shall be given
in writing, sent by (i) personal delivery, or (ii) expedited delivery
service with proof of delivery, or (iii) United States mail, postage
prepaid, registered or certified mail, sent to the intended addressee at the
address shown below, or to such other address or to the attention of such other
person(s) as hereafter shall be designated in writing by the applicable party
sent in accordance herewith. Any such notice or communication shall
be deemed to have been given and received either at the time of personal
delivery or, in the case of delivery service or mail, as of the date of first
attempted delivery on a business day at the applicable address and in the manner
provided herein.
(e) This
Guaranty shall be deemed to have been made under and shall be governed in all
respects by the laws of the Property State.
(f) This
Guaranty may be executed in any number of counterparts with the same effect as
if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
(g) This
Guaranty may only be modified, waived, altered or amended by a written
instrument or instruments executed by the party against which enforcement of
said action is asserted. Any alleged modification, waiver, alteration
or amendment which is not so documented shall not be effective as to any
party.
(h) The
books and records of Lender showing the accounts between Lender and Borrower
shall be admissible in any action or proceeding arising from this Guaranty as
prima facie
evidence
for any claim whatsoever, absent manifest error.
(i) Guarantor
waives and renounces any and all homestead or exemption rights Guarantor may
have under the United States Constitution, the laws of the Property State, or
the laws of any state as against Guarantor, and Guarantor transfers, conveys and
assigns to Lender a sufficient amount of such homestead or exemption as may be
allowed, including such homestead or exemption as may be set apart in
bankruptcy, to pay and perform the obligations of Guarantor arising under this
Guaranty. Guarantor hereby directs any trustee in bankruptcy having
possession of such homestead or exemption to deliver to Lender a sufficient
amount of property or money set apart as exempt to pay and perform such
Guarantor obligations.
(j) The
terms, provisions, covenants and conditions of this Guaranty shall be binding
upon Guarantor, its heirs, devisees, representatives, successors and assigns,
and shall inure to the benefit of Lender and Lender’s transferees, credit
participants, successors, assigns and/or endorsees.
(k) Within
this Guaranty, the words of any gender shall be held and construed to include
any other gender, and the words in the singular number shall be held and
construed to include the plural and the words in the plural number shall be held
and construed to include the singular, unless the context otherwise
requires.
(l) A
determination that any provision of this Guaranty is unenforceable or invalid
shall not affect the enforceability or validity of any other provision, and any
determination that the application of any provision of this Guaranty to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances. Accordingly, the provisions of this
Guaranty are declared to be severable.
26.
Release or Reduction of
Liability on Replacement Leases
. If one or both of Prentice
Hall or New Cingular Wireless do not renew their leases, then Lender will
consent to reductions in the Applicable Principal Liability in the amounts as
set forth below:
|
|
(a)
|
If
Borrower enters into a Prentice Hall Replacement Lease and satisfies the
Prentice Hall Replacement Lease Requirements with respect thereto, then if
such Prentice Hall Replacement Lease is for a minimum rental rate equal to
or in excess of the Prentice Hall Full Release Rental, then, upon written
request of Borrower or Guarantor, Lender shall consent to a reduction of
the Applicable Prentice Hall Principal Liability equal to $88.50 per
square foot for the Prentice Hall Space so leased by such Prentice Hall
Replacement Lease; alternatively, if such Prentice Hall Replacement Lease
is for a minimum rental rate within the parameters of the Prentice Hall
Half Release Rental, and Borrower satisfies the Prentice Hall Replacement
Lease Requirements with respect thereto, then, upon written request of
Borrower or Guarantor, Lender shall consent to a reduction of the
Applicable Prentice Hall Principal Liability equal to $44.25 per square
foot for the Prentice Hall Space so leased by such Prentice Hall
Replacement Lease;
|
|
|
(b)
|
If
Borrower enters into a New Cingular Wireless Replacement Lease and
satisfies the New Cingular Wireless Replacement Lease Requirements with
respect thereto, then if such New Cingular Wireless Replacement Lease is
for a minimum rental rate equal to or in excess of the New Cingular
Wireless Full Release Rental, then, upon written request of Borrower or
Guarantor, Lender shall consent to a reduction of the Applicable New
Cingular Wireless Principal Liability equal to $57.50 per square foot for
the New Cingular Wireless Space so leased by such New Cingular Wireless
Replacement Lease; alternatively, if such New Cingular Wireless
Replacement Lease is for a minimum rental rate within the parameters of
the New Cingular Wireless Half Release Rental, and Borrower satisfies the
New Cingular Wireless Replacement Lease Requirements with respect thereto,
then, upon written request of Borrower or Guarantor, Lender shall consent
to a reduction of the Applicable New Cingular Wireless Principal Liability
equal to $28.75 per square foot for the New Cingular Wireless Space so
leased by such New Cingular Wireless Replacement
Lease;
|
27. Notwithstanding
the foregoing, if Borrower provides and maintains the letter of credit or cash
deposit in accordance with the provisions set forth in Section 3.3 of the
Loan Agreement, Lender shall resort to collection solely under such letter of
credit or cash deposit so long as Lender recovers under such letter of credit or
cash deposit within two (2) business days after Lender's delivery of the draw
request under the Letter of Credit or withdrawal request with respect to the
cash deposit; in addition, if Lender resorts to collection also under this
Guaranty and thereafter receives a draw under such letter of credit or
withdrawal with respect to the cash deposit, such draw under such letter of
credit or withdrawal with respect to the cash deposit shall reduce, pro tanto,
the liability of Borrower and Guarantor under this Guaranty.
28. Borrower
and Guarantor acknowledge and agree that this Guaranty and the recourse
liability for the Recourse Guaranteed Amount, and each of the terms set forth
above, have been reviewed and approved as acceptable to Borrower and Guarantor
with respect to the risk that either Prentice Hall fails to exercise the
Prentice Hall Renewal or New Cingular Wireless fails to exercise the New
Cingular Wireless Renewal, and that the terms of this Guaranty are not, and are
not to be construed in any manner as, any penalty or punishment, but as fair and
reasonable terms to address the risk of such occurrences (which risks are
difficult to ascertain), and as the valid and binding contractual agreement of
Borrower and Guarantor with Lender regarding the recourse liability of Borrower
and Guarantor in the event of such occurrence, in consideration of which the
extension of the Loan on the terms set forth herein is based.
THIS GUARANTY is executed as of the
date and year first above written.
|
|
GUARANTOR:
MACK-CALI REALTY, L.P.
,
a Delaware limited partnership
By:MACK-CALI
REALTY CORPORATION, a Maryland corporation, General Partner
By:
/s/ Barry Lefkowitz
Name: Barry
Lefkowitz
Title: Executive
Vice President and Chief Financial Officer
|
The
address of Guarantor is:
|
|
c/o Mack-Cali
Realty Corporation
|
|
|
Attn:
Mitchell E. Hersh, President and Chief Executive
Officer
|
With a copy to:
|
|
Mack-Cali
Realty Corporation
|
|
|
Attention: Roger
W. Thomas
|
The
address of Lender is:
|
|
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA AND VPCM,
LLC
|
|
|
c/o Prudential
Asset Resources
|
|
|
2100 Ross
Avenue, Suite 2500
|
|
|
Attention: Asset
Management Department; Reference Loan No. [Loan Number:
______]
|
With a copy to:
|
|
THE
PRUDENTIAL INSURANCE COMPANY OF
AMERICA
|
|
|
c/o Prudential
Asset Resources
|
|
|
2100 Ross
Avenue, Suite 2500
|
|
|
Attention: Legal
Department; Reference Loan No. [Loan Number:
______]
|
Exhibit
10.3
MACK-CALI REALTY, L.P.,
a
Delaware limited partnership, as mortgagor
(Borrower)
to
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
and
VPCM,
LLC
, as mortgagee
(Lender)
_________________________________
AMENDED,
RESTATED AND CONSOLIDATED MORTGAGE AND SECURITY AGREEMENT
_________________________________
Dated: As
of January 15, 2010
Location: _____________________
THIS
INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS AND SECURES OBLIGATIONS
CONTAINING PROVISIONS FOR CHANGES IN INTEREST RATES, EXTENSIONS OF TIME FOR
PAYMENT AND OTHER “MODIFICATIONS,” AS DEFINED IN N.J. LAWS 1985, CH. 353, IN
TERMS OF SUCH OBLIGATIONS. UPON ANY SUCH MODIFICATION, THIS
INSTRUMENT SHALL HAVE THE BENEFIT OF THE LIEN PRIORITY PROVISIONS OF THAT
LAW.
|
|
UPON
RECORDATION RETURN TO:
Alston &
Bird LLP
One
Atlantic Center
1201
West Peachtree Street
Atlanta,
Georgia 30309-3424
Attn: Albert
E. Bender, Jr.
|
|
|
Loan
No. ________ and _________
|
TABLE
OF CONTENTS
Page
|
ARTICLE I
|
OBLIGATIONS
|
6
|
|
|
|
|
|
Section
1.01
|
Obligations
|
6
|
|
|
|
|
|
Section
1.02
|
Documents
|
6
|
|
|
|
|
|
ARTICLE
II
|
REPRESENTATIONS
AND WARRANTIES
|
6
|
|
|
|
|
|
Section
2.01
|
Title, Legal Status and
Authority
|
6
|
|
|
|
|
|
Section
2.02
|
Validity of
Documents
|
6
|
|
|
|
|
|
Section
2.03
|
Litigation
|
7
|
|
|
|
|
|
Section
2.04
|
Status of
Property
|
7
|
|
|
|
|
|
Section
2.05
|
Tax Status of
Borrower
|
8
|
|
|
|
|
|
Section
2.06
|
Bankruptcy and Equivalent
Value
|
8
|
|
|
|
|
|
Section
2.07
|
Disclosure
|
8
|
|
|
|
|
|
Section
2.08
|
Illegal
Activity
|
8
|
|
|
|
|
|
Section
2.09
|
OFAC
Lists
|
8
|
|
|
|
|
|
Section
2.10
|
Property as Single
Asset
|
9
|
|
|
|
|
|
ARTICLE
III
|
COVENANTS AND AGREEMENTS
|
9
|
|
|
|
|
|
Section
3.01
|
Payment of
Obligations
|
9
|
|
|
|
|
|
Section
3.02
|
Continuation of
Existence
|
9
|
|
|
|
|
|
Section
3.03
|
Taxes and Other
Charges
|
9
|
|
|
|
|
|
Section
3.04
|
Defense of Title, Litigation,
and Rights under Documents
|
10
|
|
|
|
|
|
Section
3.05
|
Compliance with Laws and
Operation and Maintenance of
Property
|
11
|
|
|
|
|
|
Section
3.06
|
Insurance
|
12
|
|
|
|
|
|
Section
3.07
|
Damage and Destruction of
Property
|
14
|
|
|
|
|
|
Section
3.08
|
Condemnation
|
16
|
|
|
|
|
|
Section
3.09
|
Liens and
Liabilities
|
17
|
|
|
|
|
|
Section
3.10
|
Tax and Insurance
Deposits
|
17
|
|
|
|
|
|
Section
3.11
|
ERISA
|
18
|
|
|
|
|
|
Section
3.12
|
Environmental
Representations, Warranties, and Covenants
|
19
|
|
|
|
|
|
Section
3.13
|
Electronic
Payments
|
21
|
|
|
|
|
|
Section
3.14
|
Inspection
|
21
|
|
|
|
|
|
Section
3.15
|
Records, Reports, and
Audits
|
21
|
|
|
|
|
|
Section
3.16
|
Borrower’s
Certificates
|
22
|
|
Section
3.17
|
Full Performance
Required; Survival of Warranties
|
23
|
|
|
|
|
|
Section
3.18
|
Additional
Security
|
23
|
|
|
|
|
|
Section
3.19
|
Further
Acts
|
23
|
|
|
|
|
|
Section
3.20
|
Compliance with
Anti-Terrorism Regulations
|
23
|
|
|
|
|
|
Section
3.21
|
Compliance with Property as
Single Asset
|
24
|
|
|
|
|
|
ARTICLE
IV
|
ADDITIONAL ADVANCES; EXPENSES;
SUBROGATION
|
24
|
|
|
|
|
|
Section
4.01
|
Expenses and
Advances
|
24
|
|
|
|
|
|
Section
4.02
|
Subrogation
|
25
|
|
|
|
|
|
ARTICLE
V
|
SALE,
TRANSFER, OR ENCUMBRANCE OF THE PROPERTY
|
25
|
|
|
|
|
|
Section
5.01
|
Due-on-Sale or
Encumbrance
|
25
|
|
|
|
|
|
Section
5.02
|
Certain Transfers
Excluded
|
26
|
|
|
|
|
|
Section
5.03
|
Merger
|
27
|
|
|
|
|
|
Section
5.04
|
Certain Affiliate
Transactions
|
28
|
|
|
|
|
|
Section
5.05
|
REIT Participation and
Ownership
|
28
|
|
|
|
|
|
ARTICLE
VI
|
DEFAULTS
AND REMEDIES
|
29
|
|
|
|
|
|
Section
6.01
|
Events of
Default
|
29
|
|
|
|
|
|
Section
6.02
|
Remedies
|
30
|
|
|
|
|
|
Section
6.03
|
Expenses
|
32
|
|
|
|
|
|
Section
6.04
|
Rights Pertaining to
Sales
|
32
|
|
|
|
|
|
Section
6.05
|
Application of
Proceeds
|
32
|
|
|
|
|
|
Section
6.06
|
Additional Provisions as to
Remedies
|
33
|
|
|
|
|
|
Section
6.07
|
Waiver of Rights and
Defenses
|
33
|
|
|
|
|
|
ARTICLE
VII
|
SECURITY
AGREEMENT
|
33
|
|
|
|
|
|
Section
7.01
|
Security Agreement
|
33
|
|
|
|
|
|
ARTICLE
VIII
|
LIMITATION
ON PERSONAL LIABILITY AND INDEMNITIES
|
34
|
|
|
|
|
|
Section
8.01
|
Limited Recourse
Liability
|
34
|
|
|
|
|
|
Section
8.02
|
General
Indemnity
|
34
|
|
|
|
|
|
Section
8.03
|
Transaction Taxes
Indemnity
|
34
|
|
|
|
|
|
Section
8.04
|
ERISA
Indemnity
|
34
|
|
|
|
|
|
Section
8.05
|
Environmental and ERISA
Indemnity
|
34
|
|
|
|
|
|
Section
8.06
|
Duty to Defend, Costs and
Expenses
|
34
|
|
|
|
|
|
Section
8.07
|
Recourse Obligation and
Survival
|
35
|
|
ARTICLE
IX
|
ADDITIONAL
PROVISIONS
|
35
|
|
|
|
|
|
Section
9.01
|
Usury Savings
Clause
|
35
|
|
|
|
|
|
Section
9.02
|
Notices
|
35
|
|
|
|
|
|
Section
9.03
|
Sole Discretion of
Lender
|
36
|
|
|
|
|
|
Section
9.04
|
Applicable Law and Submission
to Jurisdiction
|
36
|
|
|
|
|
|
Section
9.05
|
Construction of
Provisions
|
36
|
|
|
|
|
|
Section
9.06
|
Transfer of
Loan
|
37
|
|
|
|
|
|
Section
9.07
|
Miscellaneous
|
38
|
|
|
|
|
|
Section
9.08
|
Entire
Agreement
|
38
|
|
|
|
|
|
Section
9.9
|
Waiver Of Trial By
Jury
|
38
|
|
|
|
|
|
ARTICLE
X
|
LOCAL
LAW PROVISIONS
|
39
|
|
|
|
|
|
Section
10.01
|
Inconsistencies
|
39
|
|
|
|
|
|
Section
10.02
|
Environmental
Law
|
39
|
|
|
|
|
|
Section
10.03
|
Representations and
Warranties
|
39
|
|
|
|
|
|
Section
10.04
|
Copy of
Mortgage
|
42
|
|
|
|
|
|
Section
10.05
|
Loan Subject to
Modification
|
42
|
The terms
set forth below are defined in the following sections of this Amended, Restated
and Consolidated Mortgage and Security Agreement:
|
Action
|
Section 9.04
|
|
Additional
Funds
|
Section 3.07
(c)
|
|
Affecting
the Property
|
Section 3.12
(a)
|
|
Affiliate
|
Section
3.22
|
|
All
|
Section 9.05
(m)
|
|
Anti-Terrorism
Regulations
|
Section
3.20(b)
|
|
Any
|
Section 9.05
(m)
|
|
Assessments
|
Section 3.03
(a)
|
|
Assignment
|
Recitals,
Section 2 (B)
|
|
Award
|
Section 3.08
(b)
|
|
Bankruptcy
Code
|
Recitals,
Section 2 (A) (ix)
|
|
Borrower
|
Preamble
|
|
Costs
|
Section 4.01
|
|
Damage
|
Section 3.07
(a)
|
|
Default
Rate
|
Section 1.01
(a)
|
|
Demand
|
Section 9.12
(n)
|
|
Deposits
|
Section 3.10
|
|
Documents
|
Section 1.02
|
|
Environmental
Indemnity
|
Section 8.05
|
|
Environmental
Law
|
Section 3.12
(a)
|
|
Environmental
Liens
|
Section 3.12
(b)
|
|
Environmental
Report
|
Section 3.12
(a)
|
|
ERISA
|
Section 3.11
|
|
Event
of Default
|
Section 6.01
|
|
Executive
Order 13224
|
Section
2.09
|
|
First
Notice
|
Section
3.15 (b)
|
|
Flood
Acts
|
Section 2.04
(a)
|
|
Foreign
Person
|
Section 2.05
|
|
Grace
Period
|
Section 6.01(c)
|
|
Hazardous
Materials
|
Section 3.12
(a)
|
|
Impositions
|
Section 3.10
|
|
Improvements
|
Recitals,
Section 2 (A) (ii)
|
|
Include,
Including
|
Section 9.05
(f)
|
|
Indemnified
Parties
|
Section 8.02
|
|
Indemnify
|
Section 8.02
|
|
Individual
Beneficiaries
|
Section
2.09
|
|
Individual
Shareholders
|
Section
2.09
|
|
Instrument
|
Preamble
|
|
Insurance
Premiums
|
Section 3.10
|
|
Investors
|
Section 9.06
|
|
Land
|
Recitals,
Section 2 (A) (i)
|
|
Laws
|
Section 3.05(c)
|
|
Lease
|
Section 9.05
(k)
|
|
Leases
|
Recitals,
Section 2 (A) (ix)
|
|
Lender
|
Preamble
|
|
Lessee
|
Section 9.05
(k)
|
|
Lessor
|
Section 9.05
(k)
|
|
Loan
|
Recitals,
Section 1
|
|
Losses
|
Section 8.02
|
|
Major
Tenants
|
Section 3.08
(d)
|
|
Microbial
Matter
|
Section 3.12(a)
|
|
Net
Proceeds
|
Section 3.07
(d)
|
|
Note
|
Recitals,
Section 1
|
|
Notice
|
Section 9.02
|
|
O&M
Plan
|
Section
3.12(b)
|
|
Obligations
|
Section
1.01
|
|
OFAC
|
Section
2.09
|
|
OFAC
Lists
|
Section
2.09
|
|
OFAC
Violation
|
Section
3.20(c)
|
|
On
Demand
|
Section 9.05
(n)
|
|
Organization
State
|
Section 2.01
|
|
Owned
|
Section 9.05
(l)
|
|
Permitted
Encumbrances
|
Recitals,
Section 2 (B)
|
|
Person
|
Section 9.05
(i)
|
|
Personal
Property
|
Section 6.02
(j)
|
|
Prepayment
Premium
|
Section 1.01(a)
|
|
Property
|
Recitals,
Section 2 (A)
|
|
Property
Payables
|
Section
3.09
|
|
Property
State
|
Section
2.01
|
|
Provisions
|
Section 9.05
(j)
|
|
Rating
Agency
|
Section 9.06
|
|
Release
|
Section 3.12
(a)
|
|
Rent
Loss Proceeds
|
Section 3.07
(c)
|
|
Rents
|
Recitals,
Section 2 (A) (x)
|
|
Restoration
|
Section 3.07
(a)
|
|
Revenue
Code
|
Section
2.05
|
|
Second
Notice
|
Section
3.15 (b)
|
|
Securities
|
Section 9.06
|
|
Security
Agreement
|
Section 7.01
|
|
Taking
|
Section 3.08
(a)
|
|
Tenant
|
Recitals,
Section 2 (A) (vi)
|
|
Tenants
|
Section 9.05
(k)
|
|
Transaction
Taxes
|
Section 3.03
(c)
|
|
U.C.C.
|
Section 2.02
|
|
Upon
Demand
|
Section 9.05
(n)
|
|
Violation
|
Section 3.11
|
AMENDED, RESTATED AND
CONSOLIDATED MORTGAGE AND SECURITY AGREEMENT
THIS AMENDED, RESTATED AND
CONSOLIDATED MORTGAGE AND SECURITY AGREEMENT
(this “
Instrument
”) is made as of
January 15, 2010, by
MACK-CALI REALTY, L.P.,
a
Delaware limited partnership, having its principal office and place of business
at c/o Mack-Cali Realty Corporation, 343 Thornall Street, Edison, New
Jersey 08837, as mortgagor (“
Borrower
”), to
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
, a New Jersey corporation (“Prudential”), and
VPCM, LLC
, a Virginia limited
liability company (“VPCM”), having an office at c/o Prudential Asset
Resources, Inc., 2100 Ross Avenue, Suite 2500, Dallas,
Texas 75201, Attention: Asset Management
Department; Reference Loan No. _______ and ________, as
mortgagee (collectively, “
Lender
”).
W I T N E S S E T
H:
WHEREAS,
Borrower is the owner
of certain property lying and being in __________, and being more particularly
described on
Exhibit A
attached hereto (the “Property”) and known as _________; and
WHEREAS,
Borrower is the maker
of that certain Amended and Restated Promissory Note dated as of
November 12, 2004 in the original principal amount of _____________
($_________) and payable to the order of Prudential, and of that certain
Supplemental Promissory Note dated as of November 12, 2004 in the original
principal amount of _____________ ($_________) and payable to the order of
Prudential (collectively, the “Existing Note”; the loan evidenced by the
Existing Note is herein referred to as the “Existing Loan”); and
WHEREAS,
the Existing Note and
Existing Loan are secured by a certain Mortgage and Security Agreement dated as
of April 30, 1998 from Borrower in favor of Prudential, recorded in
Mortgage Book ___, Page ___, in the real estate records of __________,
covering the Property, as amended by that certain Modification of Mortgage and
Security Agreement and Assignment of Leases and Rents dated as of
November 12, 2004 between Borrower and Prudential, recorded in Mortgage
Release Book ____, Page ___, and by a certain Supplemental Mortgage
and Security Agreement dated as of November 12, 2004 from Borrower in favor
of Prudential, recorded in Mortgage Book ____, Page ____, in the real
estate records of ________, covering the Property (hereinafter referred to
collectively as the “Existing Security Instrument”), which Existing Security
Instrument is incorporated herein by this reference; and
WHEREAS,
Prudential and
Borrower and affiliates of Borrower entered into that certain Amended and
Restated Master Loan Agreement dated as of November 12, 2004 (the “Existing
Loan Agreement”) relating to seven (7) cross-collateralized and cross-defaulted
loans in the aggregate original principal amount of $150,000,000.00 (the
“Existing Loans”), including the Existing Loan evidenced by the Existing Note,
which other loans (other than the Existing Loan evidenced by the Existing Note)
are guaranteed by Borrower pursuant to that certain Amended and Restated
Irrevocable Cross-Collateral Guaranty of Payment and Performance dated as of
November 12, 2004 made by Borrower in favor of Prudential (the “Existing
Cross-Collateral Guaranty”).
WHEREAS,
the Existing
Cross-Collateral Guaranty is secured by a certain Second Priority Mortgage and
Security Agreement (hereinafter referred to as the “Cross-Collateral Mortgage”)
dated as of April 30, 1998 from Borrower in favor of Prudential, recorded
in Mortgage Book _____, Page ___, in the real estate records of
__________, covering the Property, as amended by that certain Modification of
Second Priority Mortgage and Security Agreement dated as of November 12,
2004 between Borrower and Prudential, recorded in Mortgage Release
Book _____, Page ____, which Cross-Collateral Mortgage is incorporated
herein by this reference; and
WHEREAS,
as of the date
hereof, Prudential has assigned to VPCM a one half interest in and to the
Existing Loans, Existing Note, Existing Security Instrument, Existing Loan
Agreement, Existing Cross-Collateral Guaranty, Cross-Collateral Mortgage and the
other documents that further evidence or secure the indebtedness evidenced and
secured thereby, so that Prudential and VPCM shall be co-lenders with respect to
such indebtedness; and
WHEREAS,
Borrower and
affiliates of Borrower have of even date herewith executed and delivered to
Lender an Amended and Restated Loan Agreement (the “Loan Agreement”) relating to
the refinance of the seven (7) cross-collateralized and cross-defaulted Existing
Loans under the Existing Loan Agreement, to amend and restate the terms thereof,
and to re-allocate the loan amounts among the seven (7) cross-collateralized and
cross-defaulted Existing Loans representing additional advances to certain
borrowers under the Loan Agreement and corresponding reductions of loan amounts
to other borrowers under the Loan Agreement (such Existing Loans as so amended
are herein referred to as the “Amended Loans”); and
WHEREAS,
in accordance with
the Loan Agreement, Borrower has of even date herewith executed and delivered to
Lender an Amended, Restated and Consolidated Promissory Note in favor of
Prudential in the original principal amount of _____________ ($_________) and an
Amended, Restated and Consolidated Promissory Note in favor of VPCM in the
original principal amount of _____________ ($_________) (collectively, the
“Amended Note”), by which the Existing Note has been amended, restated and
modified to reflect an indebtedness in the original principal amount of
_____________ ($_________); the Amended Note constitutes a modification,
extension and renewal of the Existing Note; and
WHEREAS,
the Amended Note and
the loan evidenced thereby are secured by all of the collateral that secures the
Existing Note, including, but not limited to, the Existing Security Instrument
and the other documents that evidence or secure the indebtedness secured thereby
(the “Documents”), but the Amended Note is not secured by the Amended
Cross-Collateral Mortgage (as hereinafter defined); and
WHEREAS,
in addition, Borrower
has of even date herewith executed and delivered to Lender an Amended and
Restated Irrevocable Cross-Collateral Guaranty of Payment and Performance (the
“Amended Cross-Collateral Guaranty”), by which the Existing Cross-Collateral
Guaranty has been modified, amended and restated to reflect the guaranty of the
Amended Loans (excluding the Amended Loan evidenced by the Amended Note secured
hereby), and in connection therewith, Borrower has of even date herewith
executed and delivered to Lender an Amended, Restated and Consolidated Second
Priority Mortgage and Security Agreement (Subordinate Mortgage to Secure Cross
Collateral Guaranty) (the “Amended Cross-Collateral Mortgage”); and
WHEREAS,
Borrower and Lender
desire to modify the Existing Security Instrument as more particularly
hereinafter set forth, and to confirm that the Existing Security Instrument
secures the Amended Note, and to consolidate and restate entirely all of the
terms of the Existing Security Instrument;
AGREEMENT
NOW THEREFORE
, for and in
consideration of _______ Dollars in hand paid from Lender to Borrower and for
and in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency hereof is
hereby acknowledged, and intending to be legally bound hereby, Borrower and
Lender agree as follows:
I.
Amendment,
Not Novation
.
Neither this
Instrument nor anything contained herein shall be construed as a substitution or
novation of Borrower’s indebtedness to Lender or of the Existing Security
Instrument, which shall remain in full force and effect, as hereby confirmed,
modified, restated, consolidated and renewed. THE PARTIES DO NOT
INTEND THIS MODIFICATION NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND
THIS MODIFICATION AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE
CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY BORROWER UNDER OR
IN CONNECTION WITH THE EXISTING NOTE, EXISTING SECURITY INSTRUMENT AND OTHER
DOCUMENTS. FURTHER, THE PARTIES DO NOT INTEND THIS MODIFICATION NOR
THE TRANSACTIONS CONTEMPLATED HEREBY TO AFFECT THE PRIORITY OF ANY OF THE
LENDER’S LIENS IN ANY OF THE COLLATERAL SECURING THE EXISTING NOTE IN ANY WAY,
INCLUDING, BUT NOT LIMITED TO, THE LIENS, SECURITY INTERESTS AND ENCUMBRANCES
CREATED BY THE EXISTING SECURITY INSTRUMENT AND THE OTHER
DOCUMENTS.
II.
Priority
.
Nothing in the
provisions of this Instrument shall be deemed in any way to affect the priority
of the Existing Security Instrument over any other security title, security
instrument, charge, encumbrance or conveyance, or to release or change the
liability of any person who is now or hereafter primarily or secondarily liable
under or on account of the Existing Note.
III.
Ratification
and Confirmation, as Amended
.
As amended
hereby, the Existing Security Instrument shall remain in full force and effect,
provided, however, that all of terms, covenants, conditions, agreements,
warranties, representations and other terms and provisions thereof are hereby
consolidated, amended and restated as set forth herein.
IV.
No
Offsets, etc
.
Borrower hereby
represents, warrants and covenants to Lender that there are no offsets, claim,
counterclaims or defenses at law or in equity against the Existing Loan, the
debt evidenced by the Amended Note, this Instrument, the Existing Security
Instrument, the Documents or the indebtedness secured thereby, and if any such
offset, defense, claim or counterclaim in fact exists, Borrower hereby
irrevocably waives the right to assert such matter at any time and releases
Lender from any and all liability with respect thereto.
V.
Modification
.
All of the terms
and provisions of the Existing Security Instrument are hereby modified and
restated in their entirety as set forth herein, including the forgoing
provisions and the following recitals, representations, warranties, covenants
and agreements:
RECITALS:
1. Borrower,
by the terms of an Amended, Restated and Consolidated Promissory Note in favor
of Prudential in the original principal amount of _____________ ($_________) and
an Amended, Restated and Consolidated Promissory Note in favor of VPCM in the
original principal amount of _____________ ($_________), each executed on the
same date as this Instrument (collectively referenced above as the “Amended
Note”, but hereinafter collectively as the “
Note
”) and in connection with
the loan (“
Loan
”) from
Lender to Borrower evidenced by the Note, is indebted to Lender in the principal
sum of _____________ ($_________).
2. Lender
and Borrower and affiliates of Borrower have entered into that certain Amended
and Restated Master Loan Agreement of even date herewith (the “Loan Agreement”)
relating to seven (7) cross-collateralized and cross-defaulted loans in the
aggregate principal amount of $150,000,000.00, including the Loan evidenced by
the Note, which other loans (other than the Loan evidenced by the Note) are
guaranteed by Borrower pursuant to that certain Amended and Restated Irrevocable
Cross-Collateral Guaranty of Payment and Performance of even date herewith made
by Borrower in favor of Lender (the “Cross-Collateral Guaranty”).
3. Borrower
desires to secure the payment of and the performance of all of its obligations
under the Note and certain additional Obligations (as defined in
Section 1.01). The Maturity Date (as that term is defined in the
Note) of the Note is January 15, 2017.
4. In
addition, Borrower has conveyed to Lender by separate instrument that certain
Amended, Restated and Consolidated Second Priority Mortgage and Security
Agreement (Subordinate Mortgage to Secure Cross Collateral Guaranty) from
Borrower dated as of the date of this Instrument (the “Second Mortgage”), which
Second Mortgage secures the Cross-Collateral Guaranty and the notes referenced
therein and guaranteed thereby (exclusive of the Note secured
hereby).
IN
CONSIDERATION of the principal sum of the Note, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Borrower
irrevocably:
A. Grants,
bargains, sells, assigns, transfers, pledges, mortgages, warrants, and conveys
to Lender, WITH POWER OF SALE, and grants Lender a security interest in, the
following property, rights, interests and estates owned by Borrower
(collectively, the “
Property
”):
(i) The
real property in ___________ and described in
Exhibit A
(“
Land
”);
(ii) All
buildings, structures and improvements (including fixtures) now or later located
in or on the Land (“
Improvements
”);
(iii) All
easements, estates, and interests including hereditaments, servitudes,
appurtenances, tenements, mineral and oil/gas rights, water rights, air rights,
development power or rights, rights to the non-exclusive use of common driveway
entries, options, reversion and remainder rights, and any other rights owned by
Borrower and relating to or usable in connection with or access to the
Property;
(iv) All
right, title, and interest owned by Borrower in and to all land lying within the
rights-of-way, roads, or streets, open or proposed, adjoining the Land to the
center line thereof, and all sidewalks, alleys, and strips and gores of land
adjacent to or used in connection with the Property;
(v) All
right, title, and interest of Borrower in, to, and under all plans,
specifications, surveys, studies, reports, permits, licenses,
agreements, contracts, instruments, books of account, insurance policies, and
any other documents relating to the use, construction, occupancy, leasing,
activity, or operation of the Property;
(vi) All
of the fixtures and personal property described in
Exhibit B
owned
by Borrower and replacements thereof; but excluding all personal
property owned by any tenant (a “
Tenant
”) of the
Property;
(vii) All
of Borrower’s right, title and interest in the proceeds (including conversion to
cash or liquidation claims) of (A) insurance relating to the Property and
(B) all awards made for the taking by eminent domain (or by any proceeding
or purchase in lieu thereof ) of the Property, including awards resulting from a
change of any streets (whether as to grade, access, or otherwise) and for
severance damages;
(viii) All
tax refunds, including interest thereon, tax rebates, tax credits, and tax
abatements, and the right to receive the same, which may be payable or available
with respect to the Property;
(ix) All
leasehold estates, ground leases, leases, subleases, licenses, or other
agreements affecting the use, enjoyment or occupancy of the Property now or
later existing [including any use or occupancy arrangements created pursuant to
Title 7 or 11 of the United States Code, as amended from time to time, or any
similar federal or state laws now or later enacted for the relief of debtors
(the “
Bankruptcy Code
”)]
and all extensions and amendments thereto (collectively, the “
Leases
”) and all of Borrower’s
right, title and interest under the Leases, including all guaranties
thereof;
(x) All
rents, issues, profits, royalties, receivables, use and occupancy charges
(including all oil, gas or other mineral royalties and bonuses), income and
other benefits now or later derived from any portion or use of the Property
(including any payments received with respect to any Tenant or the Property
pursuant to the Bankruptcy Code) and all cash, security deposits, advance
rentals, or similar payments relating thereto (collectively, the “
Rents
”) and all proceeds from
the cancellation, termination, surrender, sale or other disposition of the
Leases, and the right to receive and apply the Rents to the payment of the
Obligations; and
(xi) All
of Borrower’s rights and privileges heretofore or hereafter otherwise arising in
connection with or pertaining to the Property, including, without limiting the
generality of the foregoing, all water and/or sewer capacity, all water, sewer
and/or other utility deposits or prepaid fees, and/or all water and/or sewer
and/or other utility tap rights or other utility rights, any right or privilege
of Borrower under any loan commitment, lease, contract, declaration of
covenants, restrictions and easements or like instrument, developer’s agreement,
or other agreement with any third party pertaining to the ownership,
development, construction, operation, maintenance, marketing, sale or use of the
Property.
B. Absolutely
and unconditionally assigns, sets over, and transfers to Lender all of
Borrower’s right, title, interest and estates in and to the Leases and the
Rents, subject to the terms and license granted to Borrower under that certain
Amended and Restated Assignment of Leases and Rents made by Borrower to Lender
dated the same date as this Instrument (the “
Assignment
”), which document
shall govern and control the provisions of this assignment.
TO HAVE
AND TO HOLD the Property unto Lender and its successors and assigns forever,
subject to the matters listed in
Exhibit C
(“
Permitted
Encumbrances
”) and the provisions, terms and conditions of this
Instrument.
PROVIDED,
HOWEVER, if Borrower shall pay and perform the Obligations as provided for in
the Documents (defined below) and shall comply with all the provisions, terms
and conditions in the Documents, these presents and the estates hereby granted
(except for the obligations of Borrower set forth in Sections 3.11 and 3.12 and
as set forth in or incorporated by reference in Article VIII hereof) shall
cease, terminate and be void.
IN
FURTHERANCE of the foregoing, Borrower warrants, represents, covenants and
agrees as follows:
ARTICLE
I - OBLIGATIONS
Section
1.01
Obligations
. This
Instrument is executed, acknowledged, and delivered by Borrower to secure and
enforce the following obligations (collectively, the “
Obligations
”):
(a) Payment
of all obligations, indebtedness and liabilities under the Documents including
(i) the Prepayment Premium (as defined in the Note) (“
Prepayment Premium
”),
(ii) interest at both the rate specified in the Note and at the Default
Rate (as defined in the Note), if applicable and to the extent permitted by Laws
(defined below), and (iii) renewals, extensions, and amendments of the
Documents;
(b) Performance
of every obligation, covenant, and agreement under the Documents including
renewals, extensions, and amendments of the Documents; and
(c) Payment
of all sums advanced (including costs and expenses) by Lender pursuant to the
Documents including renewals, extensions, and amendments of the
Documents;
Notwithstanding
the foregoing, the Obligations do not include the obligations under the
Cross-Collateral Guaranty and the indebtedness evidenced thereby, which
obligations are secured by the Second Mortgage, which Second Mortgage secures
the Cross-Collateral Guaranty and the notes referenced therein and guaranteed
thereby (exclusive of the Note secured hereby).
Section
1.02
Documents
. The
“
Documents
” shall mean
this Instrument, the Note, the Assignment, and any other written agreement
executed in connection with the Loan (but excluding the Loan application and
Loan commitment) and by the party against whom enforcement is sought, including
those given to evidence or further secure the payment and performance of any of
the Obligations, and any written renewals, extensions, and amendments of the
foregoing, executed by the party against whom enforcement is
sought. All of the provisions of the Documents are incorporated into
this Instrument as if fully set forth in this Instrument.
ARTICLE
II - REPRESENTATIONS AND WARRANTIES
Borrower
hereby represents and warrants to Lender as follows:
Section
2.01
Title, Legal Status and
Authority
. Borrower (i) is seised of the Land and
Improvements in fee simple and has good and marketable title to the Property,
free and clear of all liens, charges, encumbrances, and security interests,
except the Permitted Encumbrances; (ii) will forever warrant and
defend its title to the Property and the validity, enforceability, and priority
of the lien and security interest created by this Instrument against the claims
of all persons; (iii) is a Delaware limited partnership duly
organized, validly existing, and in good standing and qualified to transact
business under the laws of its state of organization or incorporation (“
Organization State
”) and the
state where the Property is located (“
Property
State
”); and (iv) has all necessary approvals,
governmental and otherwise, and full power and authority to own its properties
(including the Property) and carry on its business.
Section
2.02
Validity of
Documents
. The execution, delivery and performance of the
Documents and the borrowing evidenced by the Note (i) are within the power
of Borrower; (ii) have been authorized by all requisite
action; (iii) have received all necessary approvals and
consents; (iv) will not violate, conflict with, breach, or
constitute (with notice or lapse of time, or both) a default under (1) any
law, order or judgment of any court, governmental authority, or the governing
instrument of Borrower or (2) any indenture, agreement, or other instrument
to which Borrower is a party or by which it or any of its property is bound or
affected; (v) will not result in the creation or imposition of
any lien, charge, or encumbrance upon any of its properties or assets except for
those in this Instrument; and (vi) will not require any
authorization or license from, or any filing with, any governmental or other
body (except for the recordation of this Instrument, the Assignment and Uniform
Commercial Code (“
U.C.C.
”)
filings). The Documents constitute legal, valid, and binding
obligations of Borrower.
Section
2.03
Litigation
. There
is no action, suit, or proceeding, judicial, administrative, or otherwise
(including any condemnation or similar proceeding), pending or, to the best
knowledge of Borrower, threatened or contemplated against, or affecting,
Borrower or the Property which would have a material adverse effect on either
the Property or Borrower’s ability to perform its obligations.
Section
2.04
Status of
Property
.
(a) The
Land and Improvements are not located in an area identified by the Secretary of
Housing and Urban Development, or any successor, as an area having special flood
hazards pursuant to the National Flood Insurance Act of 1968, the Flood Disaster
Protection Act of 1973, or the National Flood Insurance Reform Act of 1994, as
each have been or may be amended, or any successor law (collectively, the “
Flood Acts
”) or, if located
within any such area, Borrower has and will maintain the insurance prescribed in
Section 3.06 below.
(b) Borrower
has all necessary (i) certificates, licenses, and other approvals,
governmental and otherwise, for the operation of the Property and the conduct of
its business and (ii) zoning, building code, land use, environmental and
other similar permits or approvals, all of which are currently in full force and
effect and not subject to revocation, suspension, forfeiture, or modification,
except as and to the extent explicitly set forth in the Environmental Report (as
defined below). The Property and its use and occupancy are in full
compliance in all material respects with all Laws and Borrower has received no
notice of any violation or potential violation of the Laws that has not been
remedied or satisfied.
(c) The
Property is served by all utilities (including water and sewer) required for its
use.
(d) All
public roads and streets necessary to serve the Property for its use have been
completed, are serviceable, are legally open, and have been dedicated to and
accepted by the appropriate governmental entities.
(e) The
Property is free from damage caused by fire or other casualty.
(f) All
costs and expenses for labor, materials, supplies, and equipment used in the
construction of the Improvements have been paid in full except for the Permitted
Encumbrances.
(g) Borrower
owns and has paid in full for all furnishings, fixtures, and equipment (other
than Tenants’ property) used in connection with the operation of the Property,
free of all security interests, liens, or encumbrances except the Permitted
Encumbrances and those created by this Instrument.
(h) The
Property is assessed for real estate tax purposes as one or more wholly
independent tax lot(s), separate from any adjoining land or improvements, and no
other land or improvements is assessed and taxed together with the
Property.
Section
2.05
Tax Status of
Borrower
. Borrower is not a “foreign person” within the
meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder (the “
Revenue
Code
”). Borrower further represents and warrants to Lender
that Borrower is not a “disregarded entity” as defined in Section
1.1445-2(b)(2)(iii) of the Income Tax Regulations issued under the Revenue
Code.
Section
2.06
Bankruptcy and Equivalent
Value
. No bankruptcy, reorganization, insolvency, liquidation,
or other proceeding for the relief of debtors has been instituted by or against
Borrower, any general partner of Borrower (if Borrower is a partnership), or any
manager or managing member of Borrower (if Borrower is a limited liability
company). Borrower has received reasonably equivalent value for
granting this Instrument.
Section
2.07
Disclosure
. Borrower
has disclosed to Lender all material facts and has not failed to disclose any
material fact that could cause any representation or warranty made herein to be
materially misleading. There has been no adverse change in any
condition, fact, circumstance, or event that would make any such information
materially inaccurate, incomplete or otherwise misleading.
Section
2.08
Illegal
Activity.
No portion of the Property has been or will be
purchased, improved, fixtured, equipped or furnished with proceeds of any
illegal activity and, to the best of Borrower’s knowledge, there are no illegal
activities at or on the Property.
Section
2.09
OFAC
Lists
. That (i) neither Borrower, nor any persons or
entities holding any legal or beneficial interest whatsoever in Borrower
(whether directly or indirectly), are named on any list of persons, entities,
and governments issued by the Office of Foreign Assets Control of the United
States Department of the Treasury (“
OFAC
”) pursuant to Executive
Order 13224 – Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism (“
Executive Order 13224
”), as in
effect on the date hereof, or any similar list issued by OFAC or any other
department or agency of the United States of America (collectively, the “
OFAC Lists
”); provided,
however, that (A) with respect to individual beneficiaries of any
governmental plans or employee benefit plans holding interests in Borrower
(collectively, the “
Individual
Beneficiaries
”), the foregoing representations and warranties are limited
to Borrower’s actual knowledge, and (B) with respect to individual
shareholders of any publicly traded company holding an interest in Borrower
(collectively, the “
Individual
Shareholders
”), the foregoing representations and warranties are limited
to Borrower’s actual knowledge; (ii) neither Borrower, nor any persons or
entities holding any legal or beneficial interest whatsoever in Borrower
(whether directly or indirectly), are included in, owned by, controlled by,
acting for or on behalf of, providing assistance, support, sponsorship, or
services of any kind to, or otherwise associated with any of the persons or
entities referred to or described in the OFAC Lists; provided, however, that
(A) with respect to any Individual Beneficiaries holding a interests in
Borrower, the foregoing representations and warranties are limited to Borrower’s
actual knowledge, and (B) with respect to any Individual Shareholders
holding interests in Borrower, the foregoing representations and warranties are
limited to Borrower’s actual knowledge; (iii) neither any guarantor, nor
any persons or entities holding any legal or beneficial interest whatsoever in
any guarantor (whether directly or indirectly), are named on any OFAC Lists;
provided, however, that (A) with respect to any Individual Beneficiaries
holding interests in any guarantor, the foregoing representations and warranties
are limited to Borrower’s actual knowledge, and (B) with respect to any
Individual Shareholders holding interests in any guarantor, the foregoing
representations and warranties are limited to Borrower’s actual knowledge;
(iv) neither any guarantor, nor any persons or entities holding any legal
or beneficial interest whatsoever in any guarantor (whether directly or
indirectly), are included in, owned by, controlled by, acting for or on behalf
of, providing assistance, support, sponsorship, or services of any kind to, or
otherwise associated with any of the persons or entities referred to or
described in the OFAC Lists; provided, however, that (A) with respect to
any Individual Beneficiaries holding interests in any guarantor, the foregoing
representations and warranties are limited to Borrower’s actual knowledge, and
(B) with respect to any Individual Shareholders holding interests in any
guarantor, the foregoing representations and warranties are limited to
Borrower’s actual knowledge; and (v) neither Borrower nor any guarantor has
knowingly conducted business with or engaged in any transaction with any person
or entity named on any of the OFAC Lists or any person or entity included in,
owned by, controlled by, acting for or on behalf of, providing assistance,
support, sponsorship, or services of any kind to, or otherwise associated with
any of the persons or entities referred to or described in the OFAC
Lists.
Section
2.10
Property as Single
Asset.
That Borrower’s only real estate assets owned by
Borrower (excluding ownership by virtue of limited liability company membership
interests or partnership interests or similar beneficial ownership structures)
are the Property and those additional properties currently owned by Borrower as
disclosed to Lender in writing in connection herewith.
ARTICLE III
- COVENANTS AND
AGREEMENTS
Borrower
covenants and agrees with Lender as follows:
Section
3.01
Payment of
Obligations
. Borrower shall timely pay and cause to be
performed the Obligations.
Section
3.02
Continuation of
Existence
. Except as and to the extent expressly permitted by
and in accordance with the terms of Article V hereof, Borrower shall not
(a) dissolve, terminate, or otherwise dispose of, directly, indirectly or
by operation of law, all or substantially all of its
assets; (b) reorganize or change its legal structure without
Lender’s prior written consent; (c) change its name, address, or
the name under which Borrower conducts its business without promptly notifying
Lender; or (d) do anything to cause the representations in
Section 2.02 to become untrue.
Section
3.03
Taxes and Other
Charges
.
(a)
Payment of
Assessments
. Borrower shall pay when due all taxes, liens,
assessments, utility charges (public or private and including sewer fees),
ground rents, maintenance charges, dues, fines, impositions, and public and
other charges of any character (including penalties and interest) assessed
against, or which could become a lien against, the Property (“
Assessments
”) and in all
events prior to the date any fine, penalty, interest or charge for nonpayment
may be imposed. Unless Borrower is making deposits per
Section 3.10, Borrower shall provide Lender with receipts evidencing such
payments (except for income taxes, franchise taxes, ground rents, maintenance
charges, and utility charges) within thirty (30) days after their due
date.
(b)
Right to
Contest
. So long as no Event of Default (defined below) has
occurred and is continuing, Borrower may, prior to delinquency and at its sole
expense, contest any Assessment, but this shall not change or extend Borrower’s
obligation to pay the Assessment as required above unless (i) Borrower
gives Lender prior written notice of its intent to contest an
Assessment; (ii) Borrower demonstrates to Lender’s reasonable
satisfaction that (A) the Property will not be sold to satisfy the
Assessment prior to the final determination of the legal proceedings,
(B) Borrower has taken such actions as are required or permitted to
accomplish a stay of any such sale, and (C) Borrower has either
(1) furnished a bond or surety (satisfactory to Lender in form and amount)
sufficient to prevent a sale of the Property, or (2) at Lender’s option,
deposited one hundred fifty percent (150%) of the full amount necessary to pay
any unpaid portion of the Assessments with Lender; and
(iii) such proceeding shall be permitted under any other instrument to
which Borrower or the Property is subject (whether superior or inferior to this
Instrument); provided, however, that the foregoing shall not restrict
the contesting of any income taxes, franchise taxes, ground rents, maintenance
charges, and utility charges.
(c)
Documentary Stamps and Other
Charges
. Borrower shall pay all taxes, assessments, charges,
expenses, costs and fees (including registration and recording fees and revenue,
transfer, stamp, intangible and any similar taxes) (collectively, the “
Transaction Taxes
”) required
in connection with the making and/or recording of the Documents. If
Borrower fails to pay the Transaction Taxes after demand, Lender may (but is not
obligated to) pay these and Borrower shall reimburse Lender on demand for any
amount so paid with interest at the applicable interest rate specified in the
Note, which shall be the Default Rate unless prohibited by Laws.
(d)
Changes in Laws Regarding
Taxation
. If any law (i) deducts from the value of real
property for the purpose of taxation any lien or encumbrance thereon,
(ii) taxes mortgages or debts secured by mortgages for federal, state or
local purposes or changes the manner of the collection of any such existing
taxes, and/or (iii) imposes a tax, either directly or indirectly, on any of
the Documents or the Obligations, Borrower shall, if permitted by law, pay such
tax within the statutory period or within twenty (20) days after demand by
Lender, whichever is less;
provided
,
however
, that if, in
the opinion of Lender, Borrower is not permitted by law to pay such taxes,
Lender shall have the option to declare the Obligations immediately due and
payable (without any Prepayment Premium) upon sixty (60) days’ notice to
Borrower.
(e)
No Credits on Account of the
Obligations
. Borrower will not claim or be entitled to any
credit(s) on account of the Obligations for any part of the Assessments and no
deduction shall be made or claimed from the taxable value of the Property for
real estate tax purposes by reason of the Documents or the
Obligations. If such claim, credit, or deduction is required by law,
Lender shall have the option to declare the Obligations immediately due and
payable (without any Prepayment Premium) upon sixty (60) days' notice to
Borrower.
Section
3.04
Defense of Title,
Litigation, and Rights under Documents
. Borrower
shall forever warrant, defend and preserve Borrower’s title to the
Property, the validity, enforceability and priority of this Instrument and the
lien or security interest created thereby, and any rights of Lender under the
Documents against the claims of all persons, and shall promptly notify Lender of
any such claims. Lender (whether or not named as a party to such
proceedings) is authorized and empowered (but shall not be obligated) to take
such additional steps as it may deem necessary or proper for the defense of any
such proceeding or the protection of the lien, security interest, validity,
enforceability, or priority of this Instrument, title to the Property, or any
rights of Lender under the Documents, including the employment of counsel, the
prosecution and/or defense of litigation, the compromise, release, or discharge
of such adverse claims, the purchase of any tax title, the removal of any such
liens and security interests, and any other actions Lender deems necessary to
protect its interests. Borrower authorizes Lender to take any actions
required to be taken by Borrower, or permitted to be taken by Lender, in the
Documents in the name and on behalf of Borrower. Borrower shall
reimburse Lender on demand for all expenses (including attorneys’ fees) incurred
by it in connection with the foregoing and Lender’s exercise of its rights under
the Documents. All such expenses of Lender, until reimbursed by
Borrower, shall be part of the Obligations, bear interest from the date of
demand at the Default Rate, and shall be secured by this
Instrument.
Section
3.05
Compliance with Laws and
Operation and Maintenance of Property
.
(a)
Repair and
Maintenance
. Borrower will operate and maintain the Property
in good order, repair, and operating condition. Borrower will
promptly make all necessary repairs, replacements, additions, and improvements
necessary to ensure that the Property shall not in any way be diminished or
impaired. Borrower will not cause or allow any of the Property to be
misused, wasted, or to deteriorate and Borrower will not abandon the
Property. No new building, structure, or other improvement shall be
constructed on the Land nor shall any material part of the Improvements be
removed, demolished, or structurally or materially altered, without Lender’s
prior written consent (except for non-structural tenant improvements required or
permitted to be constructed pursuant to Leases approved or deemed approved by
Lender pursuant to the Assignment, or within the Minimum Leasing Requirements as
provided by the Assignment).
(b)
Replacement of
Property
. Borrower will keep the Property fully equipped and
will replace all worn out or obsolete personal property in a commercially
reasonable manner with comparable fixtures or personal
property. Borrower will not, without Lender’s prior written consent,
remove any personal property covered by this Instrument unless the same is
replaced by Borrower in a commercially reasonable manner with a comparable
article (i) owned by Borrower free and clear of any lien or security
interest (other than the Permitted Encumbrances and those created by this
Instrument) or (ii) leased by Borrower (A) with Lender’s prior written
consent (or, as to articles with a total lease cost, in the aggregate for the
Property, of not more than $5,000 in lease obligations, with written notice to
Lender together with a copy of the applicable lease) or (B) if the replaced
personal property was leased at the time of execution of this
Instrument.
(c)
Compliance with
Laws
. Borrower shall comply with and shall cause the Property
to be maintained, used, and operated in compliance with all (i) present and
future laws, Environmental Laws (defined below), ordinances, regulations, rules,
orders and requirements (including zoning and building codes) of any
governmental or quasi-governmental authority or agency applicable to Borrower or
the Property (collectively, the “
Laws
”); (ii) orders,
rules, and regulations of any regulatory, licensing, accrediting, insurance
underwriting or rating organization, or other body exercising similar functions;
(iii) duties or obligations of any kind imposed under any Permitted
Encumbrance or by law, covenant, condition, agreement, or easement, public or
private; and (iv) policies of insurance at any time in force with respect
to the Property. If proceedings are initiated or Borrower receives
notice that Borrower or the Property is not in compliance with any of the
foregoing, Borrower will promptly send Lender notice and a copy of the
proceeding or violation notice. Without limiting Lender’s rights and
remedies under Article VI or otherwise, if Borrower or the Property are not
in compliance with all Laws, Lender may impose additional requirements upon
Borrower including monetary reserves or financial equivalents.
(d)
Zoning and Title
Matters
. Borrower shall not, without Lender’s prior written
consent, (i) initiate or support any zoning reclassification of the
Property or variance under existing zoning
ordinances; (ii) modify or supplement any of the Permitted
Encumbrances; (iii) impose any restrictive covenants or
encumbrances upon the Property; (iv) execute or file any
subdivision plat affecting the Property; (v) consent to the
annexation of the Property to any municipality; (vi) permit the
Property to be used by the public or any person in a way that might make a claim
of adverse possession or any implied dedication or easement
possible; (vii) cause or permit the Property to become a
non-conforming use under zoning ordinances or any present or future
non-conforming use of the Property to be discontinued; or
(viii) fail to comply with the terms of the Permitted
Encumbrances.
Section
3.06
Insurance
.
(a)
Property and Time Element
Insurance
. Borrower shall keep the Property
insured for the benefit
of Borrower and Lender (with Lender named as mortgagee) by (i) a special
form property insurance policy with an agreed amount endorsement for full
replacement cost (defined below) without any coinsurance provisions or
penalties, or the broadest form of coverage available, in an amount sufficient
to prevent Lender from ever becoming a coinsurer under the policy or Laws, and
with a deductible not to exceed One Hundred Thousand Dollars ($100,000.00);
(ii) a policy or endorsement insuring against acts of terrorism (subject to
the terms in the two sentences at the end of this subsection) (“Terrorism
Insurance”); (iii) a policy or endorsement insuring against claims
applicable to the presence of Microbial Matter (as defined in
Section 3.12(a) hereof); (iv) a policy or endorsement providing
business income insurance (including business interruption insurance and extra
expense insurance and/or rent insurance) on an actual loss sustained basis in an
amount equal to at least one (1) year’s total income from the Property including
all
R
ents plus
all other pro forma annual income such as percentage rent and tenant
reimbursements of fixed and operating expenses, which business interruption
insurance shall also provide coverage as aforesaid for any additional hazards as
may be required pursuant to the terms of this Instrument; (v) a policy or
endorsement insuring against damage by flood if the Property is located in a
Special Flood Hazard Area identified by the Federal Emergency Management Agency
or any successor or related government agency as a 100 year flood plain
currently classified as Flood Insurance Rate Map Zones “A”, “AO”, “AH”,
“A1-A30”, “AE”, “A99”, “V”, “V1-V30”, and “VE”, in an amount equal to the
original amount of the Note; (vi) a policy or endorsement covering against
damage or loss from (A) sprinkler system leakage and (B) boilers,
boiler tanks, HVAC systems, heating and air-conditioning equipment, pressure
vessels, auxiliary piping, and similar apparatus, in the amount reasonably
required by Lender; (vii) during the period of any construction, repair,
restoration, or replacement of the Property, a standard builder’s risk policy
with extended coverage in an amount at least equal to the full replacement cost
of such Property, and worker’s compensation, in statutory amounts; and
(viii) a policy or endorsement covering against damage or loss by
earthquake and other natural phenomenon in the amounts reasonably required by
Lender. “
Full
replacement cost
” shall mean the one hundred percent (100%) replacement
cost of the Property, without allowance for depreciation and exclusive of the
cost of excavations, foundations, footings, and value of land, and shall be
subject to verification by Lender. Full replacement cost will be
determined, at Borrower’s expense, periodically upon policy expiration or
renewal by the insurance company or an appraiser, engineer, architect, or
contractor approved by said company and Lender. Lender will only
require such Terrorism Insurance that is (y) normal and customary for
similar properties, and (z) available at commercially reasonable rates (as
defined in the following sentence). Notwithstanding the above,
Borrower’s obligation to provide Terrorism Insurance shall be limited to
providing the amount of coverage for the Properties that can be obtained by
paying an amount not to exceed one and one half (1.5) times the premium that
would otherwise be charged for a special form property insurance policy (if such
policy is a blanket policy, the premium allocated to the Property) excluding
terrorism coverage, in the aggregate; however, Borrower shall not be obligated
to obtain terrorist coverage if any coverage cannot be obtained for such
amount).
(b)
Liability and Other
Insurance
. Borrower shall maintain commercial general
liability insurance with per occurrence limits of $1,000,000, a
products/completed operations limit of $2,000,000, and a general aggregate limit
of $2,000,000, with an excess/umbrella liability policy of not less than
$10,000,000 per occurrence and annual aggregate covering Borrower, with Lender
named as an additional insured, against claims for bodily injury or death or
property damage occurring in, upon, or about the Property or any street, drive,
sidewalk, curb, or passageway adjacent thereto. In addition to any
other requirements, such commercial general liability and excess/umbrella
liability insurance shall provide insurance against acts of terrorism and
against claims applicable to the presence of Microbial Matter, or such coverages
shall be provided by separate policies or endorsements. The insurance
policies shall also include operations and blanket contractual liability
coverage which insures contractual liability under the indemnifications set
forth in Section 8.02 below (but such coverage or the amount thereof shall
in no way limit such indemnifications). Upon request, Borrower shall
also carry additional insurance or additional amounts of insurance covering
Borrower or the Property as Lender shall reasonably require.
(c)
Form of
Policy
. All insurance required under this Section shall be
fully paid for, non-assessable, and the policies shall contain such provisions,
endorsements, and expiration dates as Lender shall reasonably
require. The policies shall be issued by insurance companies
authorized to do business in the Property State, approved by Lender, and must
have and maintain a current financial strength rating of “A-, X” (or higher)
from A.M. Best or equivalent (or if a rating by A.M. Best is no longer
available, a similar rating from a similar or successor service). In
addition, all policies shall (i) include a standard mortgagee clause,
without contribution, in the name of Lender, (ii) provide that they shall
not be canceled, amended, or materially altered (including reduction in the
scope or limits of coverage) without at least thirty (30) days’ prior written
notice to Lender except in the event of cancellation for non-payment of premium,
in which case only ten (10) days’ prior written notice will be given to Lender,
and (iii) include a waiver of subrogation clause. The property
insurance waiver of subrogation clause shall be substantially equivalent to the
following: “The Company may require from the Insured an assignment of all rights
of recovery against any party for loss to the extent that payment therefor is
made by the Company, but the Company shall not acquire any rights of recovery
which the Insured has expressly waived prior to loss, nor shall such waiver
affect the Insured’s rights under this policy”. The liability
insurance waiver of subrogation clause shall be substantially equivalent to the
following: “It is agreed that the insurance company, in the event of a payment
under this policy, waives its right of subrogation against any principal where a
waiver has been included as part of a contractual undertaking by the insured
prior to the occurrence or offense”.
(d)
Original Policies and
Renewals
. Borrower shall deliver to Lender (i) original
or certified copies of all policies (and renewals) required under this Section
and (ii) receipts evidencing payment of all premiums on such policies at
least thirty (30) days prior to their expiration. If original and
renewal policies are unavailable or if coverage is under a blanket policy,
Borrower shall deliver duplicate originals, or, if unavailable, original
ACORD 28 (2003/10) and ACORD 25-S certificates (or equivalent
certificates) evidencing that such policies are in full force and effect
together with certified copies of the original policies. Without
limiting Lender’s other rights with respect to the foregoing obligations, if,
within fifteen (15) days prior to the expiration of the current applicable
policy, Lender has not received the foregoing items in form and substance
acceptable to Lender (as being in compliance with the terms of this Instrument),
Lender may retain a commercial property insurance consultant to assist Lender in
obtaining adequate evidence that the required insurance coverage is in effect,
and Borrower shall (i) cooperate with such consultant in confirming that
adequate evidence that the required insurance coverage is in effect, and
(ii) pay all of the costs and expenses of such consultant (not to exceed
$700 in any calendar year).
(e)
General
Provisions
. Borrower shall not carry separate or additional
insurance concurrent in form or contributing in the event of loss with that
required under this Section unless endorsed in favor of Lender as per this
Section and approved by Lender in all respects. In the event of
foreclosure of this Instrument or other transfer of title or assignment of the
Property in extinguishment, in whole or in part, of the Obligations, all right,
title, and interest of Borrower in and to all policies of insurance then in
force regarding the Property (applicable only to the Property, and not to any
other properties covered by such blanket policies that are not encumbered by a
mortgage held by Lender) and all proceeds payable thereunder and unearned
premiums thereon shall immediately vest in the purchaser or other transferee of
the Property. No approval by Lender of any insurer shall be construed
to be a representation, certification, or warranty of its
solvency. No approval by Lender as to the amount, type, or form of
any insurance shall be construed to be a representation, certification, or
warranty of its sufficiency. Borrower shall comply with all insurance
requirements and shall not cause or permit any condition to exist which would be
prohibited by any insurance requirement or would invalidate the insurance
coverage on the Property.
(f)
Waiver of
Subrogation
. A waiver of subrogation shall be obtained by
Borrower from its insurers and, consequently, Borrower for itself, and on behalf
of its insurers, hereby waives and releases any and all right to claim or
recover against Lender, its officers, employees, agents and representatives, for
any loss of or damage to Borrower, other Persons, the Property, Borrower’s
property or the property of other Persons from any cause required to be insured
against by the provisions of this Instrument or otherwise insured against by
Borrower.
Section
3.07
Damage and Destruction of
Property
.
(a)
Borrower’s
Obligations
. If any damage to, loss, or destruction of the
Property occurs (any “
Damage
”), (i) Borrower
shall promptly notify Lender and take all necessary steps to preserve any
undamaged part of the Property and (ii) if the insurance proceeds are made
available for Restoration (defined below) (but regardless of whether any
proceeds are sufficient for Restoration), Borrower shall promptly commence and
diligently pursue to completion the restoration, replacement, and rebuilding of
the Property as nearly as possible to its value and condition immediately prior
to the Damage or a Taking (defined below) in accordance with plans and
specifications approved by Lender (“
Restoration
”). Borrower
shall comply with other reasonable requirements established by Lender to
preserve the security under this Instrument.
(b)
Lender’s
Rights
. If any Damage occurs and some or all of it is covered
by insurance, then (i) Lender may, but is not obligated to, make proof of
loss if not made promptly by Borrower and Lender is authorized and empowered by
Borrower to settle, adjust, or compromise any claims for the Damage
[notwithstanding the foregoing provisions of this subsection (b)(i), so long as
no Event of Default (or event which with the passage of time or the giving of
notice or both would be an Event of Default) has occurred and is continuing at
any time during such settlement, adjustment or compromise, Lender shall provide
Borrower with written notice of any settlement, adjustment or compromise of such
claim made solely by Lender]; (ii) each insurance company
concerned is authorized and directed to make payment directly to Lender for the
Damage; and (iii) Lender may apply the insurance proceeds in any
order it determines (1) to reimburse Lender for all Costs (defined below)
related to collection of the proceeds and (2) subject to
Section 3.07(c) and at Lender’s option, to (A) payment (without any
Prepayment Premium) of all or part of the Obligations, whether or not then due
and payable, in the order determined by Lender (provided that if any Obligations
remain outstanding after this payment, the unpaid Obligations shall continue in
full force and effect and Borrower shall not be excused in the payment
thereof); (B) the cure of any default under the
Documents; or (C) the Restoration. Notwithstanding
the foregoing, if there shall then be no Event of Default (or event which with
the passage of time or the giving of notice or both would be an Event of
Default), Borrower shall have the right to settle, adjust or compromise any
claim for Damage if the total amount of such claim is less than $122,500.00 (the
“
Borrower Claim
Threshold
”), provided, that, Borrower promptly uses the full amount of
such insurance proceeds for Restoration of the Damage and provides evidence
thereof to Lender in a manner acceptable to Lender. Any insurance
proceeds held by Lender shall be held without the payment of interest
thereon. If Borrower receives any insurance proceeds for the Damage,
Borrower shall promptly deliver the proceeds to
Lender. Notwithstanding anything in this Instrument or at law or in
equity to the contrary, none of the insurance proceeds paid to Lender shall be
deemed trust funds and Lender may dispose of these proceeds as provided in this
Section. Borrower expressly assumes all risk of loss from any Damage,
whether or not insurable or insured against.
(c)
Application of Proceeds to
Restoration
. Notwithstanding the following provisions of this
subsection (c), so long as no Event of Default (or event which with the passage
of time or the giving of notice or both would be an Event of Default) has
occurred and is continuing, if the amount of the Damage is in an amount that is
less than the Borrower Claim Threshold, such insurance proceeds shall be paid
directly to Borrower and used by Borrower to repair and restore the Property,
provided that Borrower shall use such funds to repair and restore the Property,
and shall provide Lender with such information and reports with respect thereto
as Lender may require. Lender shall make the Net Proceeds (defined
below) available to Borrower for Restoration if: (i) there shall then be no
Event of Default; (ii) Lender shall be satisfied that
(A) Restoration can and will be completed within one (1) year after the
Damage occurs and at least one (1) year prior to the maturity of the Note and
(B) Leases which are terminated or terminable as a result of the Damage
cover an aggregate of less than ten percent (10%) of the total rentable square
footage contained in the Property at the closing of the Loan or such Tenants
agree in writing to continue their Leases; (iii) Borrower shall
have entered into a general construction contract acceptable in all respects to
Lender for Restoration, which contract must include provision for retainage of
not less than ten percent (10%) until final completion of the
Restoration; and (iv) in Lender’s reasonable judgment, after
Restoration has been completed the net cash flow of the Property will be
sufficient to cover all costs and operating expenses of the Property, including
payments due and reserves required under the
Documents. Notwithstanding any provision of this Instrument to the
contrary, Lender shall not be obligated to make any portion of the Net Proceeds
available for Restoration (whether as a result of Damage or a Taking) unless, at
the time of the disbursement request, Lender has determined in its reasonable
discretion that (y) Restoration can be completed at a cost which does not exceed
the aggregate of the remaining Net Proceeds and any funds deposited with Lender
by Borrower (“
Additional
Funds
”) and (z) the aggregate of any loss of rental income insurance
proceeds which the carrier has acknowledged to be payable (“
Rent Loss Proceeds
”) and any
funds deposited with Lender by Borrower are sufficient to cover all costs and
operating expenses of the Property, including payments due and reserves required
under the Documents.
(d)
Disbursement of
Proceeds
. If Lender elects or is required to make insurance
proceeds or the Award (defined below), as the case may be, available for
Restoration, Lender shall, through a disbursement procedure established by
Lender, periodically make available to Borrower in installments the net amount
of all insurance proceeds or the Award, as the case may be, received by Lender
after deduction of all reasonable costs and expenses incurred by Lender in
connection with the collection and disbursement of such proceeds (“
Net Proceeds
”) and, if any,
the Additional Funds; subject to receipt of the documentation
required by such disbursement procedure and subject to a minimum draw amount to
be determined by Lender and Borrower, Lender shall make such disbursements
available on a monthly basis. The amounts periodically disbursed to
Borrower shall be based upon the amounts currently due under the construction
contract for Restoration and Lender’s receipt of (i) appropriate lien
waivers, (ii) a certification of the percentage of Restoration completed by
an architect or engineer acceptable to Lender, and (iii) title insurance
protection against materialmen’s and mechanic’s liens. At Lender’s
election, a disbursing agent selected by Lender shall disburse such funds, and
Borrower shall pay such agent’s reasonable fees and expenses. The Net
Proceeds, Rent Loss Proceeds, and any Additional Funds shall constitute
additional security for the Loan and Borrower shall execute, deliver, file
and/or record, at its expense, such instruments as Lender requires to grant to
Lender a perfected, first-priority security interest in these
funds. If the Net Proceeds are made available for Restoration and
(x) Borrower refuses or fails to complete the Restoration, (y) an
Event of Default occurs, or (z) the Net Proceeds or Additional Funds are
not applied to Restoration, then any undisbursed portion may, at Lender’s
option, be applied to the Obligations in any order of priority, and any such
application to principal shall be deemed a voluntary prepayment subject to the
Prepayment Premium.
Section
3.08
Condemnation
.
(a)
Borrower’s
Obligations
. Borrower will promptly notify Lender of any
threatened or instituted proceedings for the condemnation or taking by eminent
domain of the Property including any change in any street (whether as to grade,
access, or otherwise) (a “
Taking
”). Borrower
shall, at its expense, (i) diligently prosecute these proceedings,
(ii) deliver to Lender copies of all papers served in connection therewith,
and (iii) consult and cooperate with Lender in the handling of these
proceedings. No settlement of these proceedings shall be made by
Borrower without Lender’s prior written consent. Lender may
participate in these proceedings (but shall not be obligated to do so) and
Borrower will sign and deliver all instruments requested by Lender to permit
this participation.
(b)
Lender’s Rights to
Proceeds
. All condemnation awards, judgments, decrees, or
proceeds of sale in lieu of condemnation (“
Award
”) are assigned and shall
be paid to Lender. Borrower authorizes Lender to collect and receive
them, to give receipts for them, to accept them in the amount received without
question or appeal, and/or to appeal any judgment, decree, or
award. Borrower will sign and deliver all instruments requested by
Lender to permit these actions.
(c)
Application of
Award
. Lender may apply any Award in any order it determines
(1) to reimburse Lender for all Costs related to collection of the Award
and (2) subject to Section 3.08(d) and at Lender’s option, to
(A) payment (without any Prepayment Premium) of all or part of the
Obligations, whether or not then due and payable, in the order determined by
Lender (provided that if any Obligations remain outstanding after this payment,
the unpaid Obligations shall continue in full force and effect and Borrower
shall not be excused in the payment thereof); (B) the cure of any default
under the Documents; or (C) the Restoration. If Borrower
receives any Award, Borrower shall promptly deliver such Award to
Lender. Notwithstanding anything in this Instrument or at law or in
equity to the contrary, none of the Award paid to Lender shall be deemed trust
funds and Lender may dispose of these proceeds as provided in this
Section.
(d)
Application of Award to
Restoration
. Notwithstanding anything to the contrary set
forth hereinabove, Lender shall permit the application of the Award to
Restoration if: (i) no more than (A) twenty percent (20%)
of the gross area of the Improvements or (B) ten percent (10%) of the
parking spaces is affected by the Taking, (ii) the amount of the loss does
not exceed twenty percent (20%) of the original amount of the Note;
(iii) the Taking does not affect access to the Property from any public
right-of-way; (iv) there is no Event of Default at the time of the Taking
or the application of the Award; (v) after Restoration, the Property and
its use will be in compliance with all Laws; (vi) in Lender’s reasonable
judgment, Restoration is practical and can be completed within one (1) year
after the Taking and at least one (1) year prior to the maturity of the Note;
(vii) the Tenants listed in
Exhibit D
(“
Major Tenants
”) agree
in writing to continue their Leases without abatement of rent;
(viii) Borrower shall have entered into a general construction contract
acceptable in all respects to Lender for Restoration, which contract must
include provision for retainage of not less than ten percent (10%) until final
completion of the Restoration; and (ix) in Lender’s reasonable judgment,
after Restoration has been completed the net cash flow of the Property will be
sufficient to cover all costs and operating expenses of the Property, including
payments due and reserves required under the Documents. Any portion
of the Award that is in excess of the cost of any Restoration permitted above,
may, in Lender’s sole discretion, be applied against the Obligations or paid to
Borrower. If the Award is disbursed to Borrower under the provisions
of this Section 3.08(d), then such Award shall be disbursed to Borrower in
accordance with the terms and conditions of Section 3.07(d).
(e)
Effect on the
Obligations
. Notwithstanding any Taking, Borrower shall
continue to pay and perform the Obligations as provided in the
Documents. Any reduction in the Obligations due to application of the
Award shall take effect only upon Lender’s actual receipt and application of the
Award to the Obligations. If the Property shall have been foreclosed,
sold pursuant to any power of sale granted hereunder, or transferred by
deed-in-lieu of foreclosure prior to Lender’s actual receipt of the Award,
Lender may apply the Award received to the extent of any deficiency upon such
sale and Costs incurred by Lender in connection with such sale.
Section
3.09
Liens and
Liabilities
. Borrower shall pay when due all claims and
demands of mechanics, materialmen, laborers and others for any work performed or
materials delivered for the Property or the Improvements (collectively, “
Property Payables
”); provided,
however, Borrower shall have the right to contest in good faith any such claim
or demand, so long as it does so diligently, by appropriate proceedings and
without prejudice to Lender and provided that neither the Property nor any
interest therein would be in any danger of sale, loss or forfeiture as a result
of such proceeding or contest. In the event that a mechanic’s or
materialman's lien or similar proceeding is filed against the Property, or a
claim is filed against Borrower or any Recourse Parties, and Borrower shall
contest such lien, proceeding or claim, Borrower shall promptly notify Lender of
such contest and thereafter shall, upon Lender’s request, promptly provide a
bond, cash deposit or other security satisfactory to Lender to protect Lender’s
interest and security should the contest be unsuccessful. If Borrower
shall fail to immediately discharge or provide security against any such lien,
proceeding or claim as aforesaid, Lender may do so and any and all expenses
incurred by Lender, together with interest thereon at the Default Rate from the
date advanced by Lender until actually paid by Borrower, shall be immediately
paid by Borrower on demand and shall be secured by this Instrument and by all
other Documents securing all or any part of the Obligations. Nothing
in the Documents shall be deemed or construed as constituting the consent or
request by Lender, express or implied, to any contractor, subcontractor,
laborer, mechanic or materialman for the performance of any labor or the
furnishing of any material for any improvement, construction, alteration, or
repair of the Property. Borrower further agrees that Lender does not
stand in any fiduciary relationship to Borrower. Any contributions
made, directly or indirectly, to Borrower by or on behalf of any of its
partners, members, principals or any party related to such parties shall be
treated as equity and shall be subordinate and inferior to the rights of Lender
under the Documents.
Section
3.10
Tax and Insurance
Deposits
. At Lender’s option (exercisable only (i) if the
Debt Service Coverage (as defined in the Loan Agreement) as to all Properties
(as defined in the Loan Agreement) shall be less than 1.75 to 1.00, or
(ii) there shall be an Event of Default under the Documents, or
(iii) in the event that Borrower fails to timely deliver to Lender evidence
of payment of Assessments or insurance premiums as required by
Section 3.03(a) and Section 3.06(d), respectively), Borrower shall
make monthly deposits (“
Deposits
”) with Lender equal
to one-twelfth (1/12
th
) of
the annual Assessments (except for income taxes, franchise taxes, ground rents,
maintenance charges and utility charges) and the premiums for insurance required
under Section 3.06 (the “
Insurance Premiums
”) together
with amounts sufficient to pay these items thirty (30) days before they are due
(collectively, the “
Impositions
”). Lender
shall estimate the amount of the Deposits until ascertainable. At
that time, Borrower shall promptly deposit any deficiency. Borrower
shall promptly notify Lender of any changes to the amounts, schedules and
instructions for payment of the Impositions. Borrower authorizes
Lender or its agent to obtain the bills for Assessments directly from the
appropriate tax or governmental authority. All Deposits are pledged
to Lender and shall constitute additional security for the
Obligations. The Deposits shall be held by Lender without interest
(except to the extent required under Laws) and may be commingled with other
funds. If (i) there is no Event of Default at the time of
payment, (ii) Borrower has delivered bills or invoices to Lender for the
Impositions in sufficient time to pay them when due, and (iii) the Deposits
are sufficient to pay the Impositions or Borrower has deposited the necessary
additional amount, then Lender shall pay the Impositions prior to their due
date. Any Deposits remaining after payment of the Impositions shall,
at Lender’s option, be credited against the Deposits required for the following
year or paid to Borrower. If an Event of Default occurs, the Deposits
may, at Lender’s option, be applied to the Obligations in any order of
priority. Any application to principal shall be deemed a voluntary
prepayment subject to the Prepayment Premium. Borrower shall not
claim any credit against the principal and interest due under the Note for the
Deposits. Upon an assignment or other transfer of this Instrument,
Lender may pay over the Deposits in its possession to the assignee or transferee
and then it shall be completely released from all liability with respect to the
Deposits. Borrower shall look solely to the assignee or transferee
with respect thereto. This provision shall apply to every transfer of
the Deposits to a new assignee or transferee. Subject to
Article V, a transfer of title to the Land shall automatically transfer to
the new owner the beneficial interest in the Deposits. Upon full
payment and satisfaction of this Instrument or, at Lender’s option, at any prior
time, the balance of the Deposits in Lender’s possession shall be paid over to
the record owner of the Land and no other party shall have any right or claim to
the Deposits. Lender may transfer all its duties under this Section
to such servicer or financial institution as Lender may periodically designate
and Borrower agrees to make the Deposits to such servicer or
institution.
Section
3.11
ERISA
.
(a) Borrower
understands and acknowledges that, as of the date hereof, the source of funds
from which Lender is extending the Loan will include one or more of the
following accounts: (i) an “insurance company general account,” as that
term is defined in Prohibited Transaction Class Exemption (“
PTE
”) 95-60 (60 Fed. Reg.
35925 (Jul. 12, 1995)), as to which Lender meets the conditions for relief in
Sections I and IV of PTE 95-60; (ii) pooled and single client insurance
company separate accounts, which are subject to the provisions of the Employee
Retirement Income Security Act of 1974, as amended (“
ERISA
”); and (iii) one or
more insurance company separate accounts maintained solely in connection with
fixed contractual obligations of the insurance company, under which the amounts
payable or credited to the plan are not affected in any manner by the investment
performance of the separate account.
(b) Borrower
represents and warrants to Lender that (i) Borrower is not an “employee
benefit plan” as defined in Section 3(3) of ERISA, or a “governmental plan”
within the meaning of Section 3(32) of ERISA; (ii) Borrower is not a
“party in interest”, as defined in Section 3(14) of ERISA, other than as a
service provider or an affiliate of a service provider, to any employee benefit
plan that has invested in a separate account described in
Section 3.11(a)(ii) above, from which funds have been derived to make the
Loan, or if so, the execution of the Documents and making of the Loan thereunder
do not constitute nonexempt prohibited transactions under ERISA;
(iii) Borrower is not subject to state statutes regulating investments and
fiduciary obligations with respect to governmental plans, or if subject to such
statutes, is not in violation thereof in the execution of the Documents and the
making of the Loan thereunder; (iv) the assets of Borrower do not
constitute “plan assets” of one or more plans within the meaning of 29 C.F.R.
Section 2510.3-101; and (v) one or more of the following circumstances
is true: (1) equity interests in Borrower are publicly offered
securities, within the meaning of 29 C.F.R. Section 2510.3-101(b)(2);
(2) less than twenty-five percent (25%) of all equity interests in Borrower
are held by “benefit plan investors” within the meaning of 29 C.F.R.
Section 2510.3-101(f)(2); or (3) Borrower qualifies as an “operating
company,” a “venture capital operating company” or a “real estate operating
company” within the meaning of 29 C.F.R. Section 2510.3-101(c), (d) or (e),
respectively.
(c) Borrower
shall deliver to Lender such certifications and/or other evidence periodically
requested by Lender, in its sole discretion, to verify the representations and
warranties in Section 3.11(b) above. Failure to deliver these
certifications or evidence, breach of these representations and warranties, or
consummation of any transaction which would cause this Instrument or any
exercise of Lender’s rights under this Instrument to (i) constitute a
non-exempt prohibited transaction under ERISA or (ii) violate ERISA or any
state statute regulating governmental plans (collectively, a “
Violation
”), shall be an Event
of Default. Notwithstanding anything in the Documents to the
contrary, no sale, assignment, or transfer of any direct or indirect right,
title, or interest in Borrower or the Property (including creation of a junior
lien, encumbrance or leasehold interest) shall be permitted which would, in
Lender’s opinion, negate Borrower’s representations in this Section or cause a
Violation. At least fifteen (15) days before consummation of any of
the foregoing, Borrower shall obtain from the proposed transferee or lienholder
(i) a certification to Lender that the representations and warranties of
this Section 3.11 will be true after consummation and (ii) an
agreement to comply with this Section 3.11.
Section
3.12
Environmental
Representations, Warranties, and Covenants
.
(a)
Environmental
Representations and Warranties
. Borrower represents and
warrants, to the best of Borrower’s knowledge (after due inquiry and
investigation, consisting of the Borrower's existing environmental reports with
respect to the Property as delivered to Lender) and additionally based upon the
environmental site assessment reports of the Property (collectively, the “
Environmental Report
”), that
except as fully disclosed in the Environmental Report delivered to and approved
by Lender: (i) there are no Hazardous Materials (defined below)
or underground storage tanks affecting the Property (“
affecting the Property
” shall
mean “in, on, under, stored, used or migrating to or from the Property”) except
for (A) routine office, cleaning, janitorial, maintenance and other
materials and supplies necessary to operate the Property or used in connection
with general office uses for its current use (or relating to historic uses
disclosed in the Environmental Report) and (B) Hazardous Materials that are
(1) in compliance with Environmental Laws (defined below), (2) have
all required permits, and (3) are in only the amounts necessary to operate
the Property or necessary in connection with the general office uses of any
Tenant at the Property; (ii) there are no present or threatened
Releases (defined below) of Hazardous Materials in violation of any
Environmental Law affecting the Property (and no past Releases of Hazardous
Materials in material violation of any Environmental Law affecting the
Property); (iii) there is no present non-compliance with
Environmental Laws or with permits issued pursuant thereto (and no past material
non-compliance with Environmental Laws or with permits issued pursuant
thereto); (iv) Borrower does not know of, and has not received,
any written or oral notice or communication from any person relating to
Hazardous Materials affecting the Property in violation of Environmental
Laws; and (v) Borrower has provided to Lender, in writing, all
material information relating to environmental conditions affecting the Property
known to Borrower or contained in Borrower’s files. “
Environmental Law
” means any
present and future federal, state and local laws, statutes, ordinances, rules,
regulations, standards, policies and other government directives or
requirements, as well as common law, that apply to Borrower or the Property and
relate to Hazardous Materials including the Comprehensive Environmental
Response, Compensation and Liability Act and the Resource Conservation and
Recovery Act. “
Hazardous Materials
” shall
mean petroleum and petroleum products and compounds containing them, including
gasoline, diesel fuel and oil; explosives, flammable
materials; radioactive materials; polychlorinated
biphenyls (“
PCBs
”) and
compounds containing them; lead and lead-based paint; Microbial
Matter, infectious substances, asbestos or asbestos-containing materials in any
form that is or could become friable; underground or above-ground
storage tanks, whether empty or containing any substance; any
substance the presence of which on the Property is prohibited by any federal,
state or local authority; any substance that requires special
handling; and any other material or substance now or in the future
defined as a “hazardous substance,” “hazardous material”, “hazardous waste”,
“toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant” within the
meaning of any Environmental Law. “
Release
” of any Hazardous
Materials includes any release, deposit, discharge, emission, leaking, spilling,
seeping, migrating, pumping, pouring, escaping, dumping, disposing or other
movement of Hazardous Materials. “
Microbial Matter
” shall mean
the presence of fungi or bacterial matter which reproduces through the release
of spores or the splitting of cells, including, but not limited to, mold, mildew
and viruses, whether or not such Microbial Matter is living.
(b)
Environmental
Covenants
. Borrower covenants and agrees that Borrower shall
comply with (and shall use reasonable efforts to cause all occupants at the
Property to comply with, as such covenants applies to each such occupant) the
following: (i) all use and operation of the Property shall be in
compliance with all Environmental Laws and required permits; (ii) there
shall be no Releases of Hazardous Materials affecting the Property in violation
of Environmental Laws; (iii) there shall be no Hazardous Materials
affecting the Property except (A) routine office, cleaning, janitorial
supplies, maintenance and other materials and supplies necessary to operate the
Property or used in connection with general office uses, (B) in compliance
with all Environmental Laws, (C) in compliance with all required permits,
and (D) (1) in only the amounts necessary to operate the Property, (2)
necessary in connection with the general office uses of any Tenant at the
Property, or (3) as shall have been fully disclosed to and approved by
Lender in writing; (iv) the Property shall be kept free and clear of all
liens and encumbrances imposed by any Environmental Laws due to any act or
omission by Borrower or any person (the “
Environmental Liens”
);
(v) Borrower shall, at its sole expense, fully and expeditiously cooperate
in a reasonably prompt manner with the Lender in all activities performed under
Section 3.12(c) including providing all relevant information and making
knowledgeable persons available for interviews; (vi) Borrower shall, at its
sole expense, (A) perform any environmental site assessment or other
investigation of environmental conditions at the Property upon Lender’s request
based on Lender’s reasonable belief that the Property is not in compliance with
all Environmental Laws, (B) share with Lender the results and reports of
such site assessment or investigation and Lender and the applicable Indemnified
Parties (defined below) shall be entitled to rely on such results and reports,
and (C) complete any remediation of Hazardous Materials affecting the
Property or other actions required by any Environmental Laws;
(vii) Borrower shall use diligent efforts to enforce the obligations of
each Tenant or other user of the Property to refrain from violation of any
Environmental Law; (viii) Borrower shall promptly notify Lender in writing
after it becomes aware of (A) the presence, Release, or threatened Release
of Hazardous Materials affecting the Property in violation of Environmental
Laws, (B) any non-compliance of the Property with any Environmental Laws,
(C) any actual or potential Environmental Lien, (D) any required or
proposed remediation of environmental conditions relating to the Property, or
(E) any written or oral communication or notice from any person relating to
Hazardous Materials affecting the Property, or any oral communication relating
to or alleging any violation or potential violation of Environmental Law, and
(ix) if an Asbestos Operation and Maintenance Plan and any other Operation
and Maintenance Plan (collectively, the “
O&M Plan
”) is in effect
(or required by Lender to be implemented) at the time of the closing of the
Loan, then Borrower shall, at its sole expense, implement and continue the
O&M Plan (with any modifications required to comply with applicable Laws),
until payment and full satisfaction of the Obligations.
(c)
Lender’s Rights
.
Lender and any person designated by Lender may enter the Property to assess the
environmental condition of the Property and its use including
(i) conducting any environmental assessment or audit (the scope of which
shall be determined by Lender) and (ii) taking samples of soil, groundwater
or other water, air, or building materials, and conducting other invasive
testing at all reasonable times when (A) a default has occurred under the
Documents beyond any applicable grace or cure period provided therein,
(B) Lender reasonably believes that a Release has occurred at or affecting
the Property which may be in material violation of Environmental Laws or the
Property is not in material compliance with all Environmental Laws, or
(C) the Loan is being considered for sale (any out-of-pocket expenses
incurred in connection with the entry under clause (C) only shall be at Lender’s
expense). Borrower shall cooperate with and provide access to Lender
and such person.
Section
3.13
Electronic Payments
. Unless directed otherwise in writing by Lender, all payments
due under the Documents shall be made by electronic funds transfer debit entries
to Borrower’s account at an Automated Clearing House member bank satisfactory to
Lender or by similar electronic transfer process selected by
Lender. Each payment due under the Documents shall be initiated by
Lender through the Automated Clearing House network (or similar electronic
process) for settlement on the Due Date (as defined in the Note) for the
payment. Borrower shall, at Borrower’s sole cost and expense, direct
its bank in writing to permit such electronic fund transfer debit entries (or
similar electronic transfer) to be made by Lender. Prior to each
payment Due Date under the Documents, Borrower shall deposit and/or maintain
sufficient funds in Borrower’s account to cover each debit entry. Any
charges or costs, if any, by Borrower’s bank for the foregoing shall be paid by
Borrower.
Section
3.14
Inspection
. Borrower
shall allow Lender and any person designated by Lender to enter upon the
Property and conduct tests or inspect the Property at all reasonable
times. Borrower shall assist Lender and such person in effecting said
inspection.
Section
3.15
Records, Reports, and
Audits
.
(a)
Records and
Reports
. Borrower shall maintain, in accordance with generally
accepted accounting principles (“GAAP”), complete and accurate books and records
with respect to all operations of or transactions involving the
Property. Borrower shall furnish Lender (i) annual financial
statements for the Mack-Cali Realty Corporation (the “REIT Corporation”), and
Lender agrees that as to annual financial statements for the REIT Corporation,
delivery to Lender within thirty (30) days after filing with the United States
Securities and Exchange Commission (“SEC”) all financial reports to be filed by
the REIT Corporation, Mack—Cali Realty, L.P. (together with any partnership
which is hereafter the operating partnership for the REIT Corporation, the
“Operating Partnership”) and their subsidiaries with the SEC, including all 10Q,
10K and 8K reports, shall be acceptable, and (ii) annual operating
statements for the Property [and Lender agrees that as to operating statements
for the Property, the unaudited consolidating financial statement schedule of
all individual property operations of the REIT Corporation and the Operating
Partnership, or that portion of such financial statement schedule relating to
the Property, in the format set forth in the Loan Agreement shall be acceptable]
prepared in accordance with generally accepted accounting principles and
certified by an authorized person, partner or official, together with such
additional information as Lender may reasonably request. Borrower
shall furnish Lender annual financial statements for any Major Tenants which are
not publicly traded companies (including those listed in the Loan Agreement),
and, upon written request of Lender, with respect to any other Major Tenants, in
each case to the extent Borrower has the right to obtain such statements under
the applicable Lease (and Borrower agrees that Borrower will pursue obtaining
such statements actively and diligently), together with such additional
information as Lender may reasonably request. As to financial
statements of such tenants (a “Tenant Statement”), in the event of any failure
of Borrower to deliver a Tenant Statement, the $500.00 per month per statement
late fee owing with respect to late financial statements as set forth below
shall increase after any 12 months of delinquency as to any such Tenant
Statement by an additional $250 per month per statement ($750 for months 13
through 24, $1000 for months 24 through 36, and so on). Without
limiting the obligation to pay the late fees as set forth in the preceding
sentence, Lender shall have the right to deliver to Borrower a notice of default
from Lender under this Instrument and the Documents for Borrower's failure to
obtain and deliver a Tenant Statement for any month when any such Tenant
Statement remains outstanding, provided, however, that Borrower shall be
entitled to cure such failure either by the delivery of such Tenant Statement
within thirty (30) days after such notice (in which event the underlying failure
shall be cured) from Lender or by the delivery to such tenant within thirty (30)
days after such notice from Lender of written notice (a “Tenant Default Notice”)
of such tenant's default under the terms of tenant's lease (in which event the
underlying failure shall not be cured but the failure shall not ripen into an
Event of Default hereunder unless in a succeeding month a new notice of default
is sent by Lender to Borrower and Borrower thereafter fails to so cure such
default) (and provided, further, however, that Lender agrees that Borrower shall
not be obligated to terminate a tenant's lease solely on account of such failure
of such tenant to comply with such obligation), and Borrower shall deliver to
Lender copies of all correspondence received by or sent by or on behalf of
Borrower or its agents with respect to such Tenant Statements.
(b)
Delivery of
Reports
. All of the reports, statements, and items required
under this Section shall be (i) certified as being true, correct, and
accurate by an authorized person, partner, or officer of the delivering party
or, at the deliverer’s option, audited by a Certified Public Accountant;
(ii) prepared in accordance with GAAP and satisfactory to Lender in form
and substance; and (iii) delivered within the deadlines set forth
above. If any one report, statement, or item is not received by
Lender on its due date, a late fee of Five Hundred and No/100 Dollars ($500.00)
per month shall be due and payable by Borrower. If any one report,
statement, or item is not received within thirty (30) days after written notice
from Lender to Borrower that such report, statement or items was not received by
its due date, Lender may immediately declare an Event of Default under the
Documents. Borrower shall (i) provide Lender with such
additional financial, management, or other information regarding Borrower, any
general partner of Borrower, or the Property, as Lender may reasonably request
(including, but not limited to, copies of statements from the Clearing Bank, as
defined in that certain Cash Management Agreement between Borrower and Lender of
even date herewith, with respect to collections in each of the accounts
comprising Property Account A, as defined in such Cash Management
Agreement), and (ii) upon Lender’s request, deliver all items required by
Section 3.15 in an electronic format (i.e. on computer disks) or by
electronic transmission acceptable to Lender.
(c)
Inspection of
Records
. Borrower shall allow Lender or any person designated
by Lender to examine, audit, and make copies of all such books and records and
all supporting data at the place where these items are located at all reasonable
times after reasonable advance notice; provided that no notice shall
be required after any default under the Documents. Borrower shall
assist Lender in effecting such examination. Upon five (5) days’
prior notice, Lender may inspect and make copies of Borrower’s or any general
partner of Borrower’s income tax returns with respect to the Property for the
purpose of verifying any items referenced in this Section.
Section
3.16
Borrower’s
Certificates
. Within fifteen (15) days after Lender’s request, Borrower
shall furnish a written certification to Lender and any Investors (defined
below) as to (a) the amount of the Obligations
outstanding; (b) the interest rate, terms of payment, and
maturity date of the Note; (c) the date to which payments have
been paid under the Note; (d) whether any offsets or defenses
exist against the Obligations and a detailed description of any
listed; (e) whether all Leases are in full force and effect and
have not been modified (or if modified, setting forth all
modifications); (f) the date to which the Rents have been
paid; (g) whether, to the best knowledge of Borrower, any
defaults exist under the Leases and a detailed description of any
listed; (h) the security deposit held by Borrower under each
Lease and that such amount is the amount required under such
Lease; (i) whether there are any defaults (or events which with
the passage of time and/or giving of notice would constitute a default) under
the Documents and a detailed description of any
listed; (j) whether the Documents are in full force and
effect; and (k) any other matters reasonably requested by Lender
related to the Leases, the Obligations, the Property, or the
Documents. For all non-residential properties and promptly upon
Lender’s request, Borrower shall use its best efforts to deliver a written
certification to Lender and Investors from Tenants specified by
Lender that: (a) their Leases are in full force and
effect; (b) there are no defaults (or events which with the
passage of time and/or the giving of notice would constitute a default) under
their Leases or, if any exist, a detailed description of any
listed; (c) none of the Rents have been paid more than one month
in advance; (d) there are no offsets or defenses against the
Rents or, if any exist, a detailed description of any
listed; and (e) any other matters reasonably requested by Lender
related to the Leases; provided, however, that Borrower shall not
have to pay money to a Tenant to obtain such certification, but it will deliver
a landlord’s certification for any certification it cannot obtain.
Section
3.17
Full Performance
Required; Survival of Warranties
. All
representations and warranties of Borrower in the Loan application or made in
connection with the Loan shall survive the execution and delivery of the
Documents and Borrower shall not perform any action, or permit any action to be
performed, which would cause any of the warranties and representations of
Borrower to become untrue in any manner, except for such actions as may be
expressly permitted by the terms and conditions of this Instrument or any of the
other Documents.
Section
3.18
Additional
Security
. No other security now existing or taken later to
secure the Obligations shall be affected by the execution of the Documents and
all additional security shall be held as cumulative. The taking of
additional security, execution of partial releases, or extension of the time for
the payment obligations of Borrower shall not diminish the effect and lien of
this Instrument and shall not affect the liability or obligations of any maker
or guarantor. Neither the acceptance of the Documents nor their
enforcement shall prejudice or affect Lender’s right to realize upon or enforce
any other security now or later held by Lender. Lender may enforce
the Documents or any other security in such order and manner as it may determine
in its discretion.
Section
3.19
Further
Acts
. Borrower shall take all necessary actions to
(i) keep valid and effective the lien and rights of Lender under the
Documents and (ii) protect the lawful owner of the
Documents. Promptly upon request by Lender and at Borrower’s expense,
Borrower shall execute additional instruments and take such actions as Lender
reasonably believes are necessary or desirable to (a) maintain or grant
Lender a first-priority, perfected lien on the Property, (b) grant to
Lender, to the fullest extent permitted by Laws, the right to foreclose on, or
transfer title to, the Property non-judicially, (c) correct any error or
omission in the Documents; and (d) effect the intent of the Documents,
including filing/recording the Documents, additional mortgages or deeds of
trust, financing statements, and other instruments.
Section
3.20
Compliance with
Anti-Terrorism Regulations
.
(a) Borrower
hereby covenants and agrees that neither Borrower nor any guarantor, nor any
persons or entities holding any legal or beneficial interest whatsoever in
Borrower or any guarantor (whether directly or indirectly), other than
(i) Individual Shareholders and (ii) limited partners in Mack-Cali
Realty, L.P., will knowingly conduct business with or engage in any transaction
with any person or entity named on any of the OFAC Lists or any person or entity
included in, owned by, controlled by, acting for or on behalf of, providing
assistance, support, sponsorship, or services of any kind to, or otherwise
associated with any of the persons or entities referred to or described in the
OFAC Lists. Borrower will not grant any consent or permission, nor
direct, any Individual Shareholders or limited partners in Mack-Cali Realty,
L.P. to conduct business with or engage in any transaction with any person or
entity named on any of the OFAC Lists or any person or entity included in, owned
by, controlled by, acting for or on behalf of, providing assistance, support,
sponsorship, or services of any kind to, or otherwise associated with any of the
persons or entities referred to or described in the OFAC Lists, and should
Borrower become aware of any such activity, Borrower shall promptly report such
activity as and to the extent required by applicable law.
(b) Borrower
hereby covenants and agrees that it will comply at all times with the
requirements of Executive Order 13224; the International Emergency Economic
Powers Act, 50 U.S.C. Sections 1701-06; the United and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. 107-56; the Iraqi Sanctions Act, Pub. L. 101-513, 104 Stat.
2047-55; the United Nations Participation Act, 22 U.S.C. Section 287c; the
Antiterrorism and Effective Death Penalty Act, (enacting 8 U.S.C.
Section 219, 18 U.S.C. Section 2332d, and 18 U.S.C.
Section 2339b); the International Security and Development Cooperation Act,
22 U.S.C. Section 2349 aa-9; the Terrorism Sanctions Regulations, 31 C.F.R.
Part 595; the Terrorism List Governments Sanctions Regulations, 31 C.F.R. Part
596; and the Foreign Terrorist Organizations Sanctions Regulations, 31 C.F.R.
Part 597 and any similar laws or regulations currently in force or hereafter
enacted (collectively, the “
Anti-Terrorism
Regulations
”).
(c) Borrower
hereby covenants and agrees that if it becomes aware or receives any notice that
Borrower, any guarantor or the Property, or any person or entity holding any
legal or beneficial interest whatsoever (whether directly or indirectly) in
Borrower, any guarantor or in the Property, is named on any of the OFAC Lists
(such occurrence, an “
OFAC
Violation
”), Borrower will immediately (i) give notice to Lender of
such OFAC Violation, and (ii) comply with all Laws applicable to such OFAC
Violation (regardless of whether the party included on any of the OFAC Lists is
located within the jurisdiction of the United States of America), including,
without limitation, the Anti-Terrorism Regulations, and Borrower hereby
authorizes and consents to Lender’s taking any and all steps Lender deems
necessary, in its sole discretion, to comply with all Laws applicable to any
such OFAC Violation, including, without limitation, the requirements of the
Anti-Terrorism Regulations (including the “freezing” and/or “blocking” of
assets).
(d) Upon
Lender’s request from time to time during the term of the Loan, Borrower agrees
to deliver a certification confirming that the representations and warranties
set forth in Section 2.09 above remain true and correct as of the date of
such certificate and confirming Borrower’s and any guarantor’s compliance with
this Section 3.20.
Section
3.21
Compliance with Property as
Single Asset
. Borrower hereby covenants and agrees that
(i) during the term of the Loan, Borrower shall not own any assets in
addition to the Property, (ii) the Property shall remain as a single
property or project, and (iii) during the term of the Loan, the Property
shall generate substantially all of the gross income of Borrower and there shall
be no substantial business being conducted, either directly or indirectly, by
Borrower other than the business of owning and operating the Property and the
activities incidental thereto.
ARTICLE
IV - ADDITIONAL ADVANCES; EXPENSES; SUBROGATION
Section
4.01
Expenses and
Advances
. Borrower shall pay all reasonable appraisal,
recording, filing, registration, brokerage (exclusive of any brokerage fees or
commissions incurred solely by Lender), abstract, title insurance (including
premiums), title searches and examinations, surveys and similar data and
assurances with respect to title, U.C.C. search, escrow, attorneys’ (both
in-house staff and retained attorneys, except that payment would not be required
for in house staff for routine loan servicing performed in the ordinary course
of business and for the performance of which Lender is not routinely reimbursed
by other borrowers in the ordinary course of Lender’s business), engineers’,
environmental engineers’, environmental testing, and architects’ fees, costs
(including travel), expenses, and disbursements incurred by Borrower or Lender
and reasonable fees charged by Lender in connection with the granting, closing
(except that payment would not be required for in house staff for the granting
and closing of the Loan), servicing (other than routine loan servicing performed
in the ordinary course of business and for the performance of which Lender is
not routinely reimbursed by other borrowers in the ordinary course of Lender’s
business), and enforcement of (a) the Loan and the Documents or
(b) attributable to Borrower as owner of the Property. The term
“
Costs
” shall mean any
of the foregoing incurred in connection with (a) any default by Borrower
under the Documents, (b) the routine (other than routine loan servicing
performed in the ordinary course of business and for the performance of which
Lender is not routinely reimbursed by other borrowers in the ordinary course of
Lender’s business) servicing of the Loan in response to requests by Borrower, or
(c) the exercise, enforcement, compromise, defense, litigation, or
settlement of any of Lender’s rights or remedies under the Documents or relating
to the Loan or the Obligations. If Borrower fails to pay any amounts
or perform any actions required under the Documents, Lender may (but shall not
be obligated to) advance sums to pay such amounts or perform such
actions. Borrower grants Lender the right to enter upon and take
possession of the Property to prevent or remedy any such failure and the right
to take such actions in Borrower’s name. No advance or performance
shall be deemed to have cured a default by Borrower. All
(a) sums advanced by or payable to Lender per this Section or under
applicable Laws, (b) except as expressly provided in the Documents,
payments due under the Documents which are not paid in full when due, and
(c) Costs, shall: (i) be deemed demand obligations,
(ii) bear interest from the date of demand at the Default Rate until paid
if not paid on demand, (iii) be part of, together with such interest, the
Obligations, and (iv) be secured by the Documents. Lender, upon
making any such advance, shall also be subrogated to rights of the person
receiving such advance.
Section
4.02
Subrogation
. If
any proceeds of the Note were used to extinguish, extend or renew any
indebtedness on the Property, then, to the extent of the funds so used,
(a) Lender shall be subrogated to all rights, claims, liens, titles and
interests existing on the Property held by the holder of such indebtedness and
(b) these rights, claims, liens, titles and interests are not waived but
rather shall (i) continue in full force and effect in favor of Lender and
(ii) are merged with the lien and security interest created by the
Documents as cumulative security for the payment and performance of the
Obligations.
ARTICLE
V - SALE, TRANSFER, OR ENCUMBRANCE OF THE PROPERTY
Section
5.01
Due-on-Sale or
Encumbrance
. It shall be an Event of Default and, at the sole
option of Lender, Lender may accelerate the Obligations and the entire
Obligations (including any Prepayment Premium) shall become immediately due and
payable, if, without Lender’s prior written consent (which consent may be given
or withheld for any or for no reason or given conditionally, in Lender’s sole
discretion) any of the following shall occur:
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(i)
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Borrower
shall sell, convey, assign, transfer, dispose of or otherwise be divested
of its title to the Property;
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(ii)
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Borrower
shall mortgage, convey security title to, or otherwise encumber or cause
to be encumbered the Property or any interest therein in any manner or way
(whether direct or indirect, voluntary or involuntary);
or
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(a)
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except
as set forth below in Section 5.02, 5.03 and 5.04 below, any merger,
consolidation or dissolution involving, or the sale or transfer of all or
substantially all of the assets of, Borrower or of any general partner of
Borrower (or of Mack-Cali Realty Corporation or the then existing
operating partnership of Mack-Cali Realty
Corporation);
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(b)
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except
as set forth below in Section 5.02, 5.03 and 5.04 below, the transfer
(at one time or over any period of time) of 49% or more
of:
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(1)
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(x)
any ownership interests in the Borrower, regardless of the type or form of
entity of Borrower, (y) the voting stock or ownership interest of any
corporation or limited liability company which is, respectively, general
partner or managing member of Borrower or any corporation or limited
liability company directly or indirectly owning 49% or more of any such
corporation or limited liability company, or (z) the ownership
interests of any owner of fifty percent (50%) or more of the beneficial
interests of Borrower if Borrower is a trust;
or
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(2)
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except
as provided in Section 5.02, 5.03 and 5.04 below, any general
partnership, managing member or controlling interest in (x) Borrower,
(y) an entity which is in Borrower’s chain of ownership and which is
derivatively liable for the obligations of Borrower, or (z) any
entity that has the right to participate directly or indirectly in the
control of the management or operations of Borrower;
or
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(c)
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except
as set forth in Section 5.02, 5.03 and 5.04 below, in the event of
the conversion of any general partnership interest in Borrower to a
limited partnership interest, if Borrower is a partnership;
or
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(d)
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except
as set forth in Section 5.02, 5.03 and 5.04 below, in the event of
any change, removal, or resignation of any general partner of Borrower, if
Borrower is a partnership; or
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(e)
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except
as set forth in Section 5.02, 5.03 and 5.04 below, in the event of
any change, removal, addition, or resignation of a managing member of
Borrower (or if no managing member, any member), if Borrower is a limited
liability company;
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(f)
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Borrower
shall (i) obtain any secured or unsecured debt except for customary and
reasonable short-term trade payables (including, without limitation,
equipment leases) obtained and repaid in the ordinary course of Borrower’s
business or (ii) guarantee, or otherwise agree to be liable for (whether
conditionally or unconditionally), any obligation of any person or
entity.
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This
provision shall not apply to transfers of title or interest under any will (or
applicable law of descent) or transfers of limited partnership interests to
other wholly owned subsidiaries of the Mack-Cali Realty Corporation (the “REIT
Corporation”) or Mack—Cali Realty, L.P. (together with any partnership that is
hereafter the operating partnership for the REIT Corporation, the “Operating
Partnership”).
Section
5.02
Certain Transfers
Excluded
. Notwithstanding the foregoing and subject to
Section 5.03 and 5.04 below, Section 5.01 shall not apply to transfers
of publicly traded REIT stock in the REIT Corporation, and Section 5.01
shall not apply to transfers of limited partnership interests in the Operating
Partnership or to the admission of additional limited partners in the Operating
Partnership.
Section
5.03
Merger
. Notwithstanding
the foregoing and subject to Section 5.05 below, so long as the Loan is
still secured by this Instrument, if no Event of Default (or event which with
the passage of time or the giving of notice or both would be an Event of
Default) has occurred and is continuing, Lender agrees that, upon forty five
(45) days prior written request of Borrower, Lender shall consent to the
transfer of beneficial interests in the Borrower in connection with any merger
of the REIT Corporation or the Operating Partnership into another Person,
if:
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(i)
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the
proposed transferee [the “Successor Entity”; as used herein, such term
includes the surviving party from such merger other than the Operating
Partnership, REIT Corporation or an entity controlled by the shareholders
of the REIT Corporation and/or unit holders of the Operating Partnership
(in which event no such consent shall be required)] of the Property is a
United States person;
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(ii)
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Borrower
pays Lender a non-refundable servicing fee (of $25,000.00) at the time of
the request, and an additional fee equal to 0.25% of the outstanding
principal balance of the Loan (less the $25,000.00 paid at the time of the
request) at the time of the
transfer;
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(iii)
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at
Lender's option, Lender's title policy is endorsed to verify the first
priority of this Instrument at Borrower's expense (to bring forward the
effective date thereof and set forth the current schedule of subordinate
matters with respect to title, provided, however, that if any element of
such endorsement shall require payment of a new full title premium, Lender
agrees to accept a title company certification or title report in lieu of
such element);
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(iv)
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the
Successor Entity expressly assumes all obligations applicable to the
Operating Partnership or the REIT Corporation under the Documents and
executes any documents reasonably required by Lender, and all of these
documents are reasonably satisfactory in form and substance to
Lender;
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(v)
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Borrower
shall deliver to Lender copies of all transfer documents and merger
documents (to the extent Borrower is permitted by law to reveal such
documents);
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(vi)
|
the
Successor Entity complies with and delivers the ERISA Certificate and
Indemnification Agreement described in the guidelines with respect thereto
then applicable to Lender's mortgage loans (the “Guidelines”) and the
Successor Entity provides representations and warranties satisfactory to
Lender regarding the Anti-Terrorism Lists and the Anti-Terrorism and
Anti-Money Laundering Laws in accordance with the guidelines with respect
thereto then applicable to Lender's mortgage
loans;
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(vii)
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Borrower
or the Successor Entity pays all reasonable fees, costs, and expenses
incurred by Lender in connection with the proposed transfer, including,
without limitation, all legal (for both outside counsel and Lender's staff
attorneys), accounting, title insurance, documentary stamps taxes,
intangibles taxes, mortgage taxes, recording fees, and appraisal fees,
whether or not the transfer is actually
consummated.
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Section
5.04
Certain Affiliate
Transactions
. Notwithstanding the foregoing and subject to
Section 5.05 below, Lender agrees that, upon fifteen (15) days prior
written request of Borrower, Borrower, and any transferee of Borrower permitted
below, may engage in the transactions described below, provided that all of the
following conditions are met:
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(i)
|
there
is no Event of Default under the Documents (or event which with the
passage of time or the giving of notice or both would be an Event of
Default);
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(ii)
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the
transferee (or successor entity) expressly assumes all applicable
obligations under the Documents and executes any documents reasonably
required by Lender, and all of these documents are satisfactory in form
and substance to Lender;
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(iii)
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Lender
reasonably approves the form and content of all transfer documents, and
Lender is furnished with a certified copy of the recorded transfer
documents;
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(iv)
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the
transferee complies with and delivers the ERISA Certificate and
Indemnification Agreement described in the Guidelines and the transferee
provides representations and warranties satisfactory to Lender regarding
the Anti-Terrorism Lists and the Anti-Terrorism and Anti-Money Laundering
Laws in accordance with the guidelines with respect thereto then
applicable to Lender's mortgage
loans;
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(v)
|
Borrower
pays Lender a non-refundable servicing fee (of $1,000.00 per Property) at
the time of the request; and
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(vi)
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payment
by Borrower or the proposed transferee (or successor entity) of
(1) all costs and expenses incurred by Lender for the processing of
said transfer including a processing fee; (2) any documentary stamp
taxes, intangible taxes, recording fees, and other costs and expenses
required in connection with the assumption agreement and any modification
of the Documents, and (3) all other costs and expenses (including
attorneys' fees and expenses for Lender's staff attorneys and outside
counsel) of the preparation of the assumption agreement and any
modification of the Documents.
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Provided
all of the foregoing conditions are fulfilled with respect to each such
transfer, Borrower may engage in the following transactions, and the provisions
of this Section shall not apply to (and no other provision of the Documents
shall prohibit, subject to compliance with Section 5.05):
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(a)
|
the
Borrower shall have the right to merge with the Operating Partnership,
with the result that the Operating Partnership shall then be the Borrower
on such Loan; and
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(b)
|
the
Borrower shall have the right to transfer a Property to another wholly
owned subsidiary of the REIT Corporation or the Operating
Partnership.
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Section
5.05
REIT Participation and
Ownership
. At all times, (a) the REIT Corporation (and/or
a wholly owned qualified REIT subsidiary), or, after a merger transaction
involving the REIT Corporation in accordance with Section 5.03 above, the
Successor Entity to the REIT Corporation, shall at all times remain the sole
general partner (or the sole general partners) of the Operating Partnership, and
(b) the REIT Corporation and the Operating Partnership, or, after a merger
transaction in accordance with Section 5.03 above, the Successor Entity,
shall own, directly or indirectly through qualified REIT subsidiaries, 100% of
the Borrower.
ARTICLE
VI - DEFAULTS AND REMEDIES
Section
6.01
Events of
Default
. The following shall be an “
Event of
Default
”:
(a) if
Borrower fails to make any payment required under the Documents when due and
such failure continues for five (5) days after written
notice;
provided,
however, that if
Lender gives one (1) notice of such a default within any twelve (12) month
period, Borrower shall have no further right to any notice of such a default
during the next following twelve (12) month period; provided,
further, however, Borrower shall have no right to any such notice upon the
maturity date of the Note;
(b) except
for defaults listed in the other subsections of this Section 6.01, if
Borrower fails to perform or comply with any other provision contained in the
Documents that is capable of cure by the payment of money and the default is not
cured within fifteen (15) days of Lender providing written notice
thereof; provided, however, that if Lender gives one (1) notice of
such a default within any twelve (12) month period, Borrower shall have no
further right to any notice of such a default during the next following twelve
(12) month period;
(c) except
for defaults listed in the other subsections of this Section 6.01, if
Borrower fails to perform or comply with any other provision contained in the
Documents and the default is not cured within thirty (30) days after Lender
providing written notice thereof (the “
Grace
Period
”); provided, however, that Lender may extend the Grace
Period up to an additional sixty (60) days (for a total of ninety (90) days from
the date of default) if (i) Borrower immediately commences and diligently
pursues the cure of such default and delivers (within the Grace Period) to
Lender a written request for more time and (ii) Lender determines in good
faith that (1) such default cannot be cured within the Grace Period but can
be cured within ninety (90) days after the default, (2) no lien or security
interest created by the Documents will be impaired prior to completion of such
cure, and (3) Lender’s immediate exercise of any remedies provided
hereunder or by law is not necessary for the protection or preservation of the
Property or Lender’s security interest;
(d) if
any representation made (i) in connection with the Loan or the Obligations
or (ii) in the Loan application or Documents shall be false or misleading
in any material respect;
(e) if
any default under Article V occurs;
(f) if
Borrower shall (i) become insolvent, (ii) make a transfer in fraud of
creditors, (iii) make an assignment for the benefit of its creditors,
(iv) not be able to pay its debts as such debts become due, or
(v) admit in writing its inability to pay its debts as they become
due;
(g) if
any bankruptcy, reorganization, arrangement, insolvency, or liquidation
proceeding, or any other proceedings for the relief of debtors, is instituted by
or against Borrower, and, if instituted against Borrower, is allowed, consented
to, or not dismissed within the earlier to occur of (i) ninety (90) days
after such institution or (ii) the filing of an order for
relief;
(h) if
any of the events in Sections 6.01 (f) or (g) shall occur with
respect to any (i) managing member of Borrower (if Borrower is a limited
liability company), (ii) general partner of Borrower (if Borrower is a
partnership), or (iii) guarantor of payment and/or performance of any of
the Obligations;
(i) if
the Property shall be taken, attached, or sequestered on execution or other
process of law in any action against Borrower;
(j) if
any default occurs under the Environmental Indemnity (defined below) and such
default is not cured within any applicable grace period in that
document;
(k) if
Borrower shall fail at any time to obtain, maintain, renew, or keep in force the
insurance policies required by Section 3.06 within ten (10) days after
written notice;
(l) if
Borrower shall be in default under any other mortgage, deed of trust, deed to
secure debt, or security agreement covering any part of the Property, whether it
be superior or junior in lien to this Instrument;
(m) if
any claim of priority (except based upon a Permitted Encumbrance) to the
Documents by title, lien, or otherwise shall be upheld by any court of competent
jurisdiction or shall be consented to by Borrower;
(n) (i) the
consummation by Borrower of any transaction which would cause (A) the Loan
or any exercise of Lender’s rights under the Documents to constitute a
non-exempt prohibited transaction under ERISA or (B) a violation of a state
statute regulating governmental plans; (ii) the failure of any
representation in Section 3.11 to be true and correct in all
respects; or (iii) the failure of Borrower to provide Lender
with the written certifications required by Section 3.11; or
(o) (i) the
consummation by Borrower of any transaction which would cause an OFAC Violation;
(ii) the failure of any representation in Section 2.09 to be true and
correct in all respects; or (iii) the failure of Borrower to comply with
the provisions of Section 3.20, unless such default is cured within the
lesser of (A) fifteen (15) days after written notice of such default to
Borrower or (B) the shortest cure period, if any, provided for under any
Laws applicable to such matters (including, without limitation, the
Anti-Terrorism Regulations).
Section
6.02
Remedies
. If
an Event of Default occurs, Lender or any person designated by Lender may (but
shall not be obligated to) take any action (separately, concurrently,
cumulatively, and at any time and in any order) permitted under any Laws,
without notice, demand, presentment, or protest (all of which are hereby
waived), to protect and enforce Lender’s rights under the Documents or Laws
including the following actions:
(a) accelerate
and declare the entire unpaid Obligations immediately due and payable, except
for defaults under Section 6.01 (f), (g), (h), or (i) which shall
automatically make the Obligations immediately due and payable;
(b) judicially
or otherwise, (i) completely foreclose this Instrument or
(ii) partially foreclose this Instrument for any portion of the Obligations
due and the lien and security interest created by this Instrument shall continue
unimpaired and without loss of priority as to the remaining Obligations not yet
due;
(c) sell
for cash or upon credit the Property and all right, title and interest of
Borrower therein and rights of redemption thereof, pursuant to power of
sale;
(d) recover
judgment on the Note either before, during or after any proceedings for the
enforcement of the Documents and without any requirement of any action being
taken to (i) realize on the Property or (ii) otherwise enforce the
Documents;
(e) seek
specific performance of any provisions in the Documents;
(f) apply
for the appointment of a receiver, custodian, trustee, liquidator, or
conservator of the Property without (i) notice to any person,
(ii) regard for (A) the adequacy of the security for the Obligations
or (B) the solvency of Borrower or any person liable for the payment of the
Obligations; and Borrower and any person so liable waives or shall be
deemed to have waived the foregoing and any other objections to the fullest
extent permitted by Laws and consents or shall be deemed to have consented to
such appointment;
(g) with
or without entering upon the Property, (i) exclude Borrower and any person
from the Property without liability for trespass, damages, or otherwise,
(ii) take possession of, and Borrower shall surrender on demand, all books,
records, and accounts relating to the Property, (iii) give notice to
Tenants or any person, make demand for, collect, receive, sue for, and recover
in its own name all Rents and cash collateral derived from the
Property; (iv) use, operate, manage, preserve, control, and
otherwise deal with every aspect of the Property including (A) conducting
its business, (B) insuring it, (C) making all repairs, renewals,
replacements, alterations, additions, and improvements to or on it,
(D) completing the construction of any Improvements in manner and form as
Lender deems advisable, and (E) executing, modifying, enforcing, and
terminating new and existing Leases on such terms as Lender deems advisable and
evicting any Tenants in default; (v) apply the receipts from the
Property to payment of the Obligations, in any order or priority determined by
Lender, after first deducting all Costs, expenses, and liabilities incurred by
Lender in connection with the foregoing operations and all amounts needed to pay
the Impositions and other expenses of the Property, as well as just and
reasonable compensation for the services of Lender and its attorneys, agents,
and employees; and/or (vi) in every case in connection with the
foregoing, exercise all rights and powers of Borrower or Lender with respect to
the Property, either in Borrower’s name or otherwise;
(h) release
any portion of the Property for such consideration, if any, as Lender may
require without, as to the remainder of the Property, impairing or affecting the
lien or priority of this Instrument or improving the position of any subordinate
lienholder with respect thereto, except to the extent that the Obligations shall
have been actually reduced, and Lender may accept by assignment, pledge, or
otherwise any other property in place thereof as Lender may require without
being accountable for so doing to any other lienholder;
(i) apply
any Deposits to the following items in any order and in Lender’s sole
discretion: (A) the Obligations, (B) Costs,
(C) advances made by Lender under the Documents, and/or
(D) Impositions;
(j) take
all actions permitted under the U.C.C. of the Property State including
(i) the right to take possession of all tangible and intangible personal
property now or hereafter included within the Property (“
Personal Property
”) and take
such actions as Lender deems advisable for the care, protection and preservation
of the Personal Property and (ii) request Borrower at its expense to
assemble the Personal Property and make it available to Lender at a convenient
place acceptable to Lender. Any notice of sale, disposition or other
intended action by Lender with respect to the Personal Property sent to Borrower
at least five (5) days prior to such action shall constitute commercially
reasonable notice to Borrower; or
(k) take
any other action permitted under any Laws.
If Lender
exercises any of its rights under Section 6.02(g), Lender shall not
(a) be deemed to have entered upon or taken possession of the Property
except upon the exercise of its option to do so, evidenced by its demand and
overt act for such purpose; (b) be deemed a beneficiary or
mortgagee in possession by reason of such entry or taking
possession; nor (c) be liable (i) to account for any action
taken pursuant to such exercise other than for Rents actually received by
Lender, (ii) for any loss sustained by Borrower resulting from any failure
to lease the Property, or (iii) any other act or omission of Lender except
for losses caused by Lender’s willful misconduct or gross
negligence. Borrower hereby consents to, ratifies, and confirms the
exercise by Lender of its rights under this Instrument and appoints Lender as
its attorney-in-fact, which appointment shall be deemed to be coupled with an
interest and irrevocable, for such purposes.
Section
6.03
Expenses
. All
Costs, expenses, or other amounts paid or incurred by Lender in the exercise of
its rights under the Documents, together with interest thereon at the applicable
interest rate specified in the Note, which shall be the Default Rate unless
prohibited by Laws, shall be (a) part of the Obligations, (b) secured
by this Instrument, and (c) allowed and included as part of the Obligations
in any foreclosure, decree for sale, power of sale, or other judgment or decree
enforcing Lender’s rights under the Documents.
Section
6.04
Rights Pertaining to
Sales
. To the extent permitted under (and in accordance with)
any Laws, the following provisions shall, as Lender may determine in its sole
discretion, apply to any sales of the Property under Article VI, whether by
judicial proceeding, judgment, decree, power of sale, foreclosure or
otherwise: (a) Lender may conduct a single sale of the Property
or multiple sales of any part of the Property in separate tracts or in any other
manner as Lender deems in its best interests and Borrower waives any right to
require otherwise; (b) if Lender elects more than one sale of the Property,
Lender may at its option cause the same to be conducted simultaneously or
successively, on the same day or on such different days or times and in such
order as Lender may deem to be in its best interests, no such sale shall
terminate or otherwise affect the lien of this Instrument on any part of the
Property not then sold, and Borrower shall pay the costs and expenses of each
such sale; (c) any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or for such postponed
or adjourned sale without further notice or such sale may occur, without further
notice, at the time fixed by the last postponement or a new notice of sale may
be given; and (d) Lender may acquire the Property and, in lieu of paying
cash, may pay by crediting against the Obligations the amount of its bid, after
deducting therefrom any sums which Lender is authorized to deduct under the
provisions of the Documents. After any such sale, Lender shall
deliver to the purchaser at such sale a deed conveying the property so sold, but
without any covenant or warranty, express or implied. The recitals in
any such deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any Person, including Borrower or Lender, may
purchase at such sale.
Section
6.05
Application of
Proceeds
. Any proceeds received from any sale or disposition
under Article VI or otherwise, together with any other sums held by Lender,
shall, except as expressly provided to the contrary, be applied in the order
determined by Lender to: (a) payment of all Costs and expenses
of any enforcement action or foreclosure sale, transfer of title by power of
sale or otherwise (if applicable), including interest thereon at the applicable
interest rate specified in the Note, which shall be the Default Rate unless
prohibited by Laws, (b) all taxes, Assessments, and other charges unless
the Property was sold subject to these items; (c) payment of the
Obligations in such order as Lender may elect; (d) payment of
any other sums secured or required to be paid by Borrower; and
(e) payment of the surplus, if any, to any person lawfully entitled to
receive it. Borrower and Lender intend and agree that during any
period of time between any foreclosure judgment that may be obtained and the
actual foreclosure sale that the foreclosure judgment will not extinguish the
Documents or any rights contained therein including the obligation of Borrower
to pay all Costs and to pay interest at the applicable interest rate specified
in the Note, which shall be the Default Rate unless prohibited by
Laws.
Section
6.06
Additional Provisions as to
Remedies
. No failure, refusal, waiver, or delay by Lender to
exercise any rights under the Documents upon any default or Event of Default
shall impair Lender’s rights or be construed as a waiver of, or acquiescence to,
such or any subsequent default or Event of Default. No recovery of
any judgment by Lender and no levy of an execution upon the Property or any
other property of Borrower shall affect the lien and security interest created
by this Instrument and such liens, rights, powers, and remedies shall continue
unimpaired as before. Lender may resort to any security given by this
Instrument or any other security now given or hereafter existing to secure the
Obligations, in whole or in part, in such portions and in such order as Lender
may deem advisable, and no such action shall be construed as a waiver of any of
the liens, rights, or benefits granted hereunder. Acceptance of any
payment after any Event of Default shall not be deemed a waiver or a cure of
such Event of Default and such acceptance shall be deemed an acceptance on
account only. If Lender has started enforcement of any right by
foreclosure, sale, entry, or otherwise and such proceeding shall be
discontinued, abandoned, or determined adversely for any reason, then Borrower
and Lender shall be restored to their former positions and rights under the
Documents with respect to the Property, subject to the lien and security
interest hereof.
Section
6.07
Waiver of Rights and
Defenses
. To the fullest extent Borrower may do so under Laws,
Borrower (a) will not at any time insist on, plead, claim, or take the
benefit of any statute or rule of law now or later enacted providing for any
appraisement, valuation, stay, extension, moratorium, redemption, or any statute
of limitations; (b) for itself, its successors and assigns, and
for any person ever claiming an interest in the Property (other than Lender),
waives and releases all rights of redemption, reinstatement, valuation,
appraisement, notice of intention to mature or declare due the whole of the
Obligations, all rights to a marshaling of the assets of Borrower, including the
Property, or to a sale in inverse order of alienation, in the event of
foreclosure (or extinguishment by transfer of title by power of sale) of the
liens and security interests created under the
Documents; (c) shall not be relieved of its obligation to pay
the Obligations as required in the Documents nor shall the lien or priority of
the Documents be impaired by any agreement renewing, extending, or modifying the
time of payment or the provisions of the Documents (including a modification of
any interest rate), unless expressly released, discharged, or modified by such
agreement. Regardless of consideration and without any notice to or
consent by the holder of any subordinate lien, security interest, encumbrance,
right, title, or interest in or to the Property, Lender may (a) release any
person liable for payment of the Obligations or any portion thereof or any part
of the security held for the Obligations or (b) modify any of the
provisions of the Documents without impairing or affecting the Documents or the
lien, security interest, or the priority of the modified Documents as security
for the Obligations over any such subordinate lien, security interest,
encumbrance, right, title, or interest.
ARTICLE
VII - SECURITY AGREEMENT
Section
7.01
Security
Agreement
. This Instrument constitutes both a real property
mortgage and a “
security
agreement
” within the meaning of the U.C.C. The Property
includes real and personal property and all tangible and intangible rights and
interest of Borrower in the Property. Borrower grants to Lender, as security for
the Obligations, a security interest in the Personal Property to the fullest
extent that the Personal Property may be subject to the
U.C.C. Borrower authorizes Lender to file any financing or
continuation statements and amendments thereto relating to the Personal Property
without the signature of Borrower if permitted by Laws.
ARTICLE VIII
- LIMITATION ON PERSONAL LIABILITY
AND INDEMNITIES
Section
8.01
Limited Recourse
Liability
. The provisions of Paragraph 8 and
Paragraph 9 of the Note are incorporated into this Instrument as if such
provisions were set forth in their entirety in this Instrument.
Section
8.02
General
Indemnity
. Borrower agrees that while Lender has no liability
to any person in tort or otherwise as lender and that Lender is not an owner or
operator of the Property, Borrower shall, at its sole expense, protect, defend,
release, indemnify and hold harmless (“
indemnify
”) the Indemnified
Parties from any Losses (defined below) imposed on, incurred by, or asserted
against the Indemnified Parties, directly or indirectly, arising out of or in
connection with the Property, Loan, or Documents, including
Losses; provided, however, that the foregoing indemnities shall not
apply to any Losses caused by the gross negligence or willful misconduct of the
Indemnified Parties. The term “
Losses
” shall mean any claims,
suits, liabilities (including strict liabilities), actions, proceedings,
obligations, debts, damages, losses (including, without limitation, unrealized
loss of value of the Property), Costs, expenses, fines, penalties, charges,
fees, judgments, awards, and amounts paid in settlement of whatever kind
including attorneys’ fees (both in-house staff and retained attorneys) and all
other costs of defense. The term “
Indemnified Parties
” shall
mean (a) Lender, (b) any prior owner or holder of the Note,
(c) any existing or prior servicer of the Loan, (d) the officers,
directors, shareholders, partners, members, employees and trustees of any of the
foregoing, and (e) the heirs, legal representatives, successors and assigns
of each of the foregoing.
Section
8.03
Transaction Taxes
Indemnity
. Borrower shall, at its sole expense, indemnify the
Indemnified Parties from all Losses imposed upon, incurred by, or asserted
against the Indemnified Parties or the Documents relating to Transaction
Taxes.
Section
8.04
ERISA
Indemnity.
Borrower shall, at its sole expense, indemnify the
Indemnified Parties against all Losses imposed upon, incurred by, or asserted
against the Indemnified Parties (a) as a result of a Violation, (b) in
the investigation, defense, and settlement of a Violation, (c) as a result
of a breach of the representations in Section 3.11 or default thereunder,
(d) in correcting any prohibited transaction or the sale of a prohibited
loan, and (e) in obtaining any individual prohibited transaction exemption
under ERISA that may be required, in Lender’s sole discretion.
Section
8.05
Environmental and ERISA
Indemnity.
Borrower and other persons, if any, have executed
and delivered the Environmental and ERISA Indemnity Agreement dated the date
hereof to Lender (“
Environmental
Indemnity
”).
Section
8.06
Duty to Defend, Costs and
Expenses.
Upon request, whether Borrower’s obligation to
indemnify Lender arises under Article VIII or in the Documents, Borrower
shall defend the Indemnified Parties (in Borrower’s or the Indemnified Parties’
names) by attorneys and other professionals reasonably approved by the
Indemnified Parties. Notwithstanding the foregoing, the Indemnified
Parties may, in their sole discretion, engage their own attorneys and
professionals to defend or assist them and, at their option, their attorneys
shall control the resolution of any claims or proceedings. Upon
demand, Borrower shall pay or, in the sole discretion of the Indemnified
Parties, reimburse and/or indemnify the Indemnified Parties for all Costs
imposed on, incurred by, or asserted against the Indemnified Parties by reason
of any items set forth in this Article VIII and/or the enforcement or
preservation of the Indemnified Parties’ rights under the
Documents. Any amount payable to the Indemnified Parties under this
Section shall (a) be deemed a demand obligation, (b) be part of the
Obligations, (c) bear interest from the date of demand at the Default Rate,
until paid if not paid on demand, and (d) be secured by this
Instrument.
Section
8.07
Recourse Obligation and
Survival.
Notwithstanding anything to the contrary in the
Documents and in addition to the recourse obligations in the Note, the
obligations of Borrower under Sections 8.03, 8.04, 8.05, and 8.06 shall be
a full recourse obligation of Borrower, shall not be subject to any limitation
on personal liability in the Documents, and shall survive (a) repayment of
the Obligations, (b) any termination, satisfaction, transfer of title by
power of sale, assignment or foreclosure of this Instrument, (c) the
acceptance by Lender (or any nominee) of a deed in lieu of foreclosure,
(d) a plan of reorganization filed under the Bankruptcy Code, or
(e) the exercise by the Lender of any rights in the
Documents. Borrower’s obligations under Article VIII shall not
be affected by the absence or unavailability of insurance covering the same or
by the failure or refusal by any insurance carrier to perform any obligation
under any applicable insurance policy.
ARTICLE IX
- ADDITIONAL
PROVISIONS
Section
9.01
Usury Savings
Clause
. All agreements in the Documents are expressly limited
so that in no event whatsoever shall the amount paid or agreed to be paid under
the Documents for the use, forbearance, or detention of money exceed the highest
lawful rate permitted by Laws. If, at the time of performance,
fulfillment of any provision of the Documents shall involve transcending the
limit of validity prescribed by Laws, then, ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity. If Lender
shall ever receive as interest an amount which would exceed the highest lawful
rate, the receipt of such excess shall be deemed a mistake and (a) shall be
canceled automatically or (b) if paid, such excess shall be
(i) credited against the principal amount of the Obligations to the extent
permitted by Laws or (ii) rebated to Borrower if it cannot be so credited
under Laws. Furthermore, all sums paid or agreed to be paid under the
Documents for the use, forbearance, or detention of money shall to the extent
permitted by Laws be amortized, prorated, allocated, and spread throughout the
full stated term of the Note until payment in full so that the rate or amount of
interest on account of the Obligations does not exceed the maximum lawful rate
of interest from time to time in effect and applicable to the Obligations for so
long as the Obligations are outstanding.
Section
9.02
Notices
. Any
notice, request, demand, consent, approval, direction, agreement, or other
communication (any “
notice
”) required or permitted
under the Documents shall be in writing and shall be validly given if sent by a
nationally-recognized courier that obtains receipts, delivered personally by a
courier that obtains receipts, or mailed by United States certified mail (with
return receipt requested and postage prepaid) addressed to the applicable person
as follows:
|
If
to Borrower:
Mack-Cali
Realty, L.P.
c/o
Mack-Cali Realty Corporation
343 Thornall
Street
Edison,
New Jersey 08837
Attention: Mitchell
E. Hersh
|
|
|
And
To:
Mack-Cali
Realty, L.P.
c/o
Mack-Cali Realty Corporation
343 Thornall
Street
Edison,
New Jersey 08837
Attention: Barry
Lefkowitz
|
With
a copy of notices sent to Borrower to:
General
Counsel
Mack-Cali
Realty Corporation
343 Thornall
St.
Edison,
New Jersey 08837
Attention: Roger
W. Thomas
|
|
If
to Lender:
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA and VPCM, LLC
c/o Prudential
Asset Resources, Inc.
2100 Ross
Avenue, Suite 2500
Dallas,
Texas 75201
Attention: Asset
Management Department; Reference Loan
No. 706 108 236 and 706 108 266
|
With
a copy of notices sent to Lender to:
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA
c/o Prudential
Asset Resources, Inc.
2100 Ross
Avenue, Suite 2500
Dallas,
Texas 75201
Attention: Legal
Department; Reference Loan No. 706 108 236 and
706 108 266
|
Each
notice shall be effective upon being so sent, delivered, or mailed, but the time
period for response or action shall run from the date of receipt as shown on the
delivery receipt. Refusal to accept delivery or the inability to
deliver because of a changed address for which no notice was given shall be
deemed receipt. Any party may periodically change its address for
notice and specify up to two (2) additional addresses for copies by giving the
other party at least ten (10) days’ prior notice.
Section
9.03
Sole Discretion of
Lender
. Except as otherwise expressly stated, whenever
Lender’s judgment, consent, or approval is required or Lender shall have an
option or election under the Documents, such judgment, the decision as to
whether or not to consent to or approve the same, or the exercise of such option
or election shall be in the sole and absolute discretion of Lender.
Section
9.04
Applicable Law and
Submission to Jurisdiction
. The Documents shall be governed by
and construed in accordance with the laws of the Property State and the
applicable laws of the United States of America. Without limiting
Lender’s right to bring any action or proceeding against Borrower or the
Property relating to the Obligations (an “
Action
”) in the courts of
other jurisdictions, Borrower irrevocably (a) submits to the jurisdiction
of any state or federal court in the Property State, (b) agrees that any
Action may be heard and determined in such court, and (c) waives, to the
fullest extent permitted by Laws, the defense of an inconvenient forum to the
maintenance of any Action in such jurisdiction.
Section
9.05
Construction of
Provisions
. The following rules of construction shall apply
for all purposes of this Instrument unless the context otherwise
requires: (a) all references to numbered Articles or Sections or
to lettered Exhibits are references to the Articles and Sections hereof and the
Exhibits annexed to this Instrument and such Exhibits are incorporated into this
Instrument as if fully set forth in the body of this
Instrument; (b) all Article, Section, and Exhibit captions are
used for convenience and reference only and in no way define, limit, or in any
way affect this Instrument; (c) words of masculine, feminine, or
neuter gender shall mean and include the correlative words of the other genders,
and words importing the singular number shall mean and include the plural
number, and vice versa; (d) no inference in favor of or against
any party shall be drawn from the fact that such party has drafted any portion
of. this Instrument; (e) all obligations of Borrower hereunder
shall be performed and satisfied by or on behalf of Borrower at Borrower’s sole
expense; (f) the terms “
include
,” “
including
,” and similar terms
shall be construed as if followed by the phrase “
without being limited
to
”; (g) the terms “
Property
”, “
Land
”, “
Improvements
”, and “
Personal Property
” shall be
construed as if followed by the phrase “
or any part
thereof
”; (h) the term “
Obligations
” shall be
construed as if followed by the phrase “
or any other sums secured hereby, or
any part thereof
”; (i) the term “
person”
shall include natural
persons, firms, partnerships, limited liability companies, trusts, corporations,
governmental authorities or agencies, and any other public or private legal
entities; (j) the term “
provisions
,” when used with
respect hereto or to any other document or instrument, shall be construed as if
preceded by the phrase “
terms,
covenants, agreements, requirements, and/or
conditions
”; (k) the term “
lease
” shall mean “
tenancy, subtenancy, lease, sublease,
or rental agreement
,” the term “
lessor
” shall mean “
landlord, sublandlord, lessor, and
sublessor
,” and the term “
Tenants
” or “
lessee
” shall mean “
tenant, subtenant, lessee, and
sublessee
”; (l) the term “
owned
” shall mean “
now owned or later
acquired
”; (m) the terms “
any
” and “
all
” shall mean “
any or all
”; and
(n) the term “
on
demand
” or “
upon
demand
” shall mean “
within five (5) business days after
written notice
”.
Section
9.06
Transfer of
Loan
.
(a) Lender
may, at any time, (i) sell, transfer or assign the Documents and any
servicing rights with respect thereto or (ii) grant participations therein
or issue mortgage pass-through certificates or other securities evidencing a
beneficial interest in a rated or unrated public offering or private placement
(collectively, the “
Securities
”). Lender
may forward to any purchaser, transferee, assignee, servicer, participant, or
investor in such Securities (collectively, “
Investors
”), to any Rating
Agency (defined below) rating such Securities and to any prospective Investor,
all documents and information which Lender now has or may later acquire relating
to the Obligations, Borrower, any guarantor, any indemnitor(s), the Leases and
the Property, whether furnished by Borrower, any guarantor, any indemnitor(s) or
otherwise, as Lender determines advisable, provided that such parties shall be
subject to any Confidentiality Agreement then in effect between Lender and
Borrower or Guarantor with respect to this Loan, if any. Borrower,
any guarantor and any indemnitor agree to cooperate with Lender in connection
with any transfer made or any Securities created pursuant to this Section
including the delivery of an estoppel certificate in accordance with
Section 3.16 and such other documents as may be reasonably requested by
Lender. Borrower shall also furnish consent of any borrower, any
guarantor and any indemnitor in order to permit Lender to furnish such Investors
or such prospective Investors or such Rating Agency with any and all information
concerning the Property, the Leases, the financial condition of Borrower, any
guarantor and any indemnitor, as may be reasonably requested by Lender, any
Investor, any prospective Investor or any Rating Agency and which may be
complied with without undue expense, provided that such parties shall be subject
to any Confidentiality Agreement that is entered into by Lender with any such
borrower, guarantor or indemnitor that is specific to this
Loan. “Rating Agency” shall mean any one or more credit rating
agencies approved by Lender.
(b) Borrower
agrees that upon any assignment or transfer of the Documents by Lender to any
third party, Lender shall have no obligations or liabilities under the
Documents, such third party shall be substituted as the lender under the
Documents for all purposes and Borrower shall look solely to such third party
for the performance of any obligations under the Documents or with respect to
the Loan.
Section
9.07
Miscellaneous
. If
any provision of the Documents shall be held to be invalid, illegal, or
unenforceable in any respect, this shall not affect any other provisions of the
Documents and such provision shall be limited and construed as if it were not in
the Documents. If title to the Property becomes vested in any person
other than Borrower, Lender may, without notice to Borrower, deal with such
person regarding the Documents or the Obligations in the same manner as with
Borrower without in any way vitiating or discharging Borrower’s liability under
the Documents or being deemed to have consented to the vesting. If
both the lessor’s and lessee’s interest under any Lease ever becomes vested in
any one person, this Instrument and the lien and security interest created
hereby shall not be destroyed or terminated by the application of the doctrine
of merger and Lender shall continue to have and enjoy all its rights and
privileges as to each separate estate. Upon foreclosure (or transfer
of title by power of sale) of this Instrument, none of the Leases shall be
destroyed or terminated as a result of such foreclosure (or sale), by
application of the doctrine of merger or as a matter of law, unless Lender takes
all actions required by law to terminate the Leases as a result of foreclosure
(or sale). All of Borrower’s covenants and agreements under the
Documents shall run with the land and time is of the
essence. Borrower appoints Lender as its attorney-in-fact, which
appointment is irrevocable and shall be deemed to be coupled with an interest,
with respect to the execution, acknowledgment, delivery, filing or recording for
and in the name of Borrower of any of the documents listed in
Sections 3.04, 3.19, 4.01 and 6.02. The Documents cannot be
amended, terminated, or discharged except in a writing signed by the party
against whom enforcement is sought. No waiver, release, or other
forbearance by Lender will be effective unless it is in a writing signed by
Lender and then only to the extent expressly stated. The provisions
of the Documents shall be binding upon Borrower and its heirs, devisees,
representatives, successors, and assigns including successors in interest to the
Property and inure to the benefit of Lender and its heirs, successors,
substitutes, and assigns. Where two or more persons have executed the
Documents, the obligations of such persons shall be joint and several, except to
the extent the context clearly indicates otherwise. The Documents may
be executed in any number of counterparts with the same effect as if all parties
had executed the same document. All such counterparts shall be
construed together and shall constitute one instrument, but in making proof
hereof it shall only be necessary to produce one such counterpart. Upon receipt
of an affidavit of an officer of Lender as to the loss, theft, destruction or
mutilation of any Document which is not of public record, and, in the case of
any mutilation, upon surrender and cancellation of the Document, Borrower will
issue, in lieu thereof, a replacement Document, dated the date of the lost,
stolen, destroyed or mutilated Document containing the same
provisions. Any reviews, inspections, reports, approvals or similar
items conducted, made or produced by or on behalf of Lender with respect to
Borrower, the Property or the Loan are for loan underwriting and servicing
purposes only, and shall not constitute an acknowledgment, representation or
warranty of the accuracy thereof, or an assumption of liability with respect to
Borrower, Borrower’s contractors, architects, engineers, employees, agents or
invitees, present or future tenants, occupants or owners of the Property, or any
other party.
Section
9.08
Entire
Agreement
. Except as provided in Section 3.17,
(a) the Documents constitute the entire understanding and agreement between
Borrower and Lender with respect to the Loan and supersede all prior written or
oral understandings and agreements with respect to the Loan including the Loan
application and Loan commitment and (b) Borrower is not relying on any
representations or warranties of Lender except as expressly set forth in the
Documents.
SECTION
9.09
WAIVER OF TRIAL BY
JURY
. EACH OF BORROWER AND LENDER HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM FILED BY EITHER PARTY, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE DOCUMENTS, OR ANY
ALLEGED ACTS OR OMISSIONS OF LENDER OR BORROWER IN CONNECTION
THEREWITH.
ARTICLE X
- LOCAL LAW
PROVISIONS
Section
10.01
Inconsistencies
. In
the event of any inconsistencies between the terms and conditions of this
Article X and any other terms of this Instrument the terms and conditions of
this Article X shall control and be binding.
Section
10.02
Environmental
Law
. The following is hereby added to Section 3.12(a)
immediately after the words “within the meaning of any Environmental
Law”:
“including,
without limitation, any substance that is a “hazardous substance” or “hazardous
waste” under the New Jersey Spill Compensation and Control Act, the New Jersey
Industrial Site Recovery Act or the New Jersey Solid Waste Management Act of
N.J.A.C. 7:26C-1.3.”
Section
10.03
Representations and
Warranties
. The following is hereby added as
Section 3.12(d):
(d) “
New Jersey Spill Act and
ISRA
. Without limitation of the provisions of
Section 3.12, Borrower hereby makes the following additional
representations, warranties and covenants:
A.
Representations and
Warranties
.
(i) To
the best of Borrower's knowledge, after due inquiry and investigation,
consisting of the Environmental Report, except as disclosed in the Environmental
Report, the Property has not been used to refine, produce, store, handle,
transfer, process, transport, generate, manufacture, treat or dispose of “
Hazardous Substances
”, as such
term is defined in N.J.S.A. 58:10-23.11b(k) (and references to the term
Hazardous Substance in this Subsection (d)(A)(i) shall have the meanings
set forth therein), in violation of Environmental Laws and Borrower has not in
the past, nor does Borrower intend in the future, to use such real property
(including the Property) for the purpose of refining, producing, storing,
handling, transferring, processing, transporting, generating, manufacturing,
treating or disposing of any such Hazardous Substances in violation of
Environmental Laws. In addition, none of the other real property
owned and/or occupied by Borrower and located in the State of New Jersey has
been so used as described in the preceding sentence in any manner that could
have a Material Adverse Effect on Borrower, or, to the extent that any such
property is so used, such use is conducted by Borrower in material good faith
compliance with all Environmental Laws; as used in this
Section 3.12(d), the term “Material Adverse Effect” means, with respect to
any Person, a material adverse effect on the ability of Borrower to perform its
obligations hereunder. Notwithstanding anything herein to the
contrary, customary quantities of any routine office, cleaning, janitorial
supplies, maintenance and other materials and supplies used stored or handled in
the ordinary course of Borrower's business or the business of its Tenants shall
not be deemed a Hazardous Substance or Hazardous Waste for purposes of this
subsection 3.12(d)(A)(i), subsection 3.12(d)(A)(v) or subsection
3.12(d)(A)(vi).
(ii) Except
as disclosed in the Environmental Report, the Property has not, to the best of
Borrower's knowledge, after due inquiry and investigation, consisting of the
Environmental Report, been used as, or is now being used as, a “
Major Facility
” as defined in
N.J.S.A. 58:10-23.11b(l). None of the other real property owned
and/or occupied by Borrower and located in the State of New Jersey (including
the Property) has, to the best of Borrower's knowledge, been used as, or is now
being used as, a “
Major
Facility
” as defined in N.J.S.A. 58:10-23.11b(l) in any manner that could
have a Material Adverse Effect on Borrower, and, to the extent that any such
property is a “Major Facility”, such use is conducted by Borrower in material
good faith compliance with all Environmental Laws.
(iii) To
the best of Borrower's knowledge, after due inquiry and investigation, no lien
has been attached to the Property or any revenues or any real or personal
property owned by Borrower and located in the State of New Jersey (including the
Property) as a result of the chief executive of the New Jersey Spill
Compensation Fund expending monies from such fund to pay for “
Damages
”, as such term is
defined in N.J.S.A. 58:10-23.11(g) and/or “
Cleanup and Removal Costs
”, as
such term is defined in N.J.S.A. 58:10-23.11b(d), arising from an intentional or
unintentional action or omission of Borrower or any previous or present owner,
operator or Tenant of the Property, resulting in the Release of Hazardous
Substances into the waters of the State of New Jersey or onto the lands of the
State of New Jersey, or into waters outside the jurisdiction of the State of New
Jersey when damage may result to the lands, waters, fish, shellfish, wildlife,
biota, air and other natural resources owned, managed, held in trust or
otherwise controlled by and within the jurisdiction of the State of New
Jersey; as to the foregoing relating to assets of Borrower other than
the Property, such representation is hereby modified to be applicable only in
any manner or to any extent that could have a Material Adverse Effect on
Borrower.
(iv) Except
as disclosed in the Environmental Report, Borrower has not received a summons,
citation, directive, letter or other communication, written or oral from the New
Jersey Department of Environmental Protection concerning any intentional or
unintentional action or omission on Borrower's part resulting in the Release of
Hazardous Substances into the waters or onto the lands of the State of New
Jersey, or into the waters outside the jurisdiction of the State of New Jersey
resulting in damage to the lands, waters, fish, shellfish, wildlife, biota, air
and other natural resources owned, managed, held in trust or otherwise
controlled by and within the jurisdiction of the State of New Jersey with
respect to the Property, and, with respect to the other real property owned
and/or occupied by Borrower and located in the State of New Jersey Borrower has
not received the items described above in any manner or to any extent that could
have a Material Adverse Effect on Borrower.
(v) To
the best of Borrower's knowledge, after due inquiry and investigation,
consisting of the Environmental Report, except as disclosed in the Environmental
Report, the Property has not been used to generate, manufacture, refine,
transport, treat, store, handle, dispose of, produce, transfer, or process
“Hazardous Substances” or “Hazardous Wastes”, as such terms are defined in
N.J.A.C. 7:26C-1.3 in violation of Environmental Laws, and Borrower does not
intend to use any of its real property (including the Property) for such
purposes. In addition, none of the other real property owned and/or
occupied by Borrower and located in the State of New Jersey has been so used as
described in the preceding sentence in any manner that could have a Material
Adverse Effect on Borrower; to the extent that any such property is
so used to generate, manufacture, refine, transport, treat, store, handle,
dispose of, produce, transfer, or process “Hazardous Substances” or “Hazardous
Wastes” as aforesaid, such use is conducted by Borrower in material good faith
compliance with all Environmental Laws.
(vi) Except
as otherwise disclosed in the Environmental Report, if and to the extent
required by applicable law, Borrower has conducted an on-site inspection of the
Property, including a geohydrological survey of soil and sub-surface conditions
as well as other tests, to determine the presence of “Hazardous Substances” or
“Hazardous Wastes”, as such terms are defined in N.J.A.C. 7:26C-1.3, and except
as disclosed in the Environmental Report, Borrower has not found evidence of the
presence of any such “Hazardous Substances” or “Hazardous Wastes” on or in the
Property in violation of Environmental Laws.
(vii) Except
as disclosed in the Environmental Report, Borrower is not required to comply
with the provisions of the New Jersey Industrial Site Recovery Act (N.J.S.A.
13:1K-6
et
seq.
) with
respect to the Property.
B.
Covenants
. As
to the following covenants, should there be any claim of violation hereof by
Lender on account of properties of Borrower other than the Property, Lender
agrees that there shall be no Event of Default hereunder so long as Borrower, at
no expense to Lender, diligently contests in all reasonable respects any
enforcement action with respect to the following items as permitted by law, and
provided that Borrower demonstrates to Lender's reasonable satisfaction that any
adverse determination shall not have a Material Adverse Effect on
Borrower:
(i) Borrower
shall not cause or permit to exist, as a result of an intentional or
unintentional action or omission on its part, a Release of a Hazardous Substance
into waters of the State of New Jersey, or into waters outside the jurisdiction
of the State of New Jersey when damage may result to the lands, waters, fish,
shellfish, wildlife, biota, air and other natural resources owned, managed, held
in trust or otherwise controlled by and within the jurisdiction of the State of
New Jersey, unless such Release is pursuant to and in compliance with the
conditions of a permit issued by the appropriate federal or state governmental
authorities.
(ii) The
Property will not be used as a Major Facility after completion of any
construction, renovation, restoration and other developmental work that Borrower
may undertake thereon. If Borrower shall own or operate any real
property located in the State of New Jersey that is used as a Major Facility,
Borrower shall duly file or cause to be duly filed with the Director of the
Division of Taxation in the New Jersey Department of the Treasury, a tax report
or return and shall pay or make provision for the payment of all taxes due
therewith, all in accordance with and pursuant to N.J.S.A.
58:10-23.11h.
(iii) In
the event that there shall be filed a lien against the Property by the New
Jersey Department of Environmental Protection, pursuant to and in accordance
with the provision of N.J.S.A. 58:10-23.11f(f), as a result of the chief
executive of the New Jersey Spill Compensation Fund having expended monies from
such fund to pay for Damages and/or Cleanup and Removal Costs arising from an
intentional or unintentional action or omission of Borrower resulting in the
Release of Hazardous Substances into the waters of the State of New Jersey or
onto lands from which it might flow or drain into such waters, then Borrower
shall, within thirty (30) days from the date that Borrower is given notice that
the lien has been placed against the Property, or within such shorter period of
time in the event that the State of New Jersey has commenced steps to cause the
Property to be sold pursuant to the lien, either (A) pay the claim and remove
the lien from the Property, or (B) furnish (1) a bond satisfactory to Lender in
the amount of the claim out of which the lien arises, (2) a cash deposit in the
amount of the claim out of which the lien arises, or (3) other security
satisfactory to Lender in an amount sufficient to discharge the claim out of
which the lien arises.
(iv) Should
Borrower cause or permit any intentional or unintentional action or omission
resulting in the Release of Hazardous Substances into the waters or onto the
lands of the State of New Jersey, or into the waters outside the jurisdiction of
the State of New Jersey resulting in damage to the lands, waters, fish,
shellfish, wildlife, biota, air or other natural resources owned, managed or
held in trust or otherwise controlled by and within the jurisdiction of the
State of New Jersey, without having obtained a permit issued by the appropriate
governmental authorities, Borrower shall promptly clean up such Release in
accordance with the provisions of the New Jersey Spill Compensation and Control
Act and all other applicable laws.
(v) To
the extent Borrower is required, as owner of the Property, to comply with ISRA
at any time, Borrower shall comply fully with ISRA. To the extent
that a landlord is required to comply with ISRA by reason of “closure of
operations” of a tenant, Borrower shall comply fully with ISRA upon the closure
of operations by any tenant at the Property.”
Section
10.04
Copy of
Mortgage
. Borrower represents and warrants that it has
received a true copy of this Instrument without charge.
Section
10.05
Loan Subject to
Modification
. This Instrument is subject to “modification” as
such term is defined in N.J.S.A. 46:9-8.1
et seq.
and shall be subject
to the priority provisions thereof.
IN
WITNESS WHEREOF, the undersigned have executed this Instrument as of the day
first set forth above.
|
|
BORROWER:
MACK-CALI REALTY, L.P.
,
a Delaware limited partnership
By:MACK-CALI
REALTY CORPORATION, a Maryland corporation, General Partner
By: ______________________
Name: Barry
Lefkowitz
Title: Executive
Vice President and Chief Financial Officer
|
Exhibit
10.4
FORM
OF AMENDED, RESTATED AND CONSOLIDATED PROMISSORY NOTE
|
$____________
|
|
January 15,
2010
|
|
Loan
No. ___________
|
|
|
THIS AMENDED, RESTATED AND
CONSOLIDATED PROMISSORY NOTE
is made by
MACK-CALI REALTY, L.P.
,
a Delaware limited
partnership (“
Borrower
”)
to the order of
THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA
, a New Jersey corporation (“
Lender
”, which shall also mean
successors and assigns who become holders of this Note).
W I T N E S S E T
H
:
WHEREAS,
Borrower is the maker
of, or has assumed the obligations of the maker of, that certain Amended and
Restated Promissory Note dated as of November 12, 2004 in the original
principal amount of _____________ ($__________) and payable to the order of
Lender, and of that_____________ ($__________) and payable to the order of
Lender (collectively, the “Existing Note”; the loan evidenced by the Existing
Note is herein referred to as the “Existing Loan”);
WHEREAS,
the Existing Loan was
made pursuant to that certain Amended and Restated Loan Agreement dated as of
November 12, 2004 (the “Existing Loan Agreement”) by and among, inter alia,
Lender and Borrower relating to seven (7) cross-collateralized and
cross-defaulted loans in the aggregate principal amount of $150,000,000.00;
and
WHEREAS,
as of the date
hereof, The Prudential Insurance Company of America, a New Jersey corporation
(“Prudential”), has assigned to VPCM, LLC, a Virginia limited liability company
(“VPCM”), an undivided interest in and to the Existing Loan and Existing Note
and the other documents that further evidence or secure the indebtedness
evidenced thereby, so that Prudential and VPCM shall be co-lenders with respect
to such indebtedness; and
WHEREAS,
Borrower and Lender
have agreed, pursuant to that certain Amended and Restated Loan Agreement dated
of even date herewith (the “Loan Agreement”) by and among, inter alia, Lender,
VPCM, and Borrower relating to seven (7) cross-collateralized and
cross-defaulted loans in the aggregate principal amount of $150,000,000.00
(individually, a “Crossed Loan”, and collectively, the “Crossed Loans”), each of
which Crossed Loans consists of a loan made by Prudential and a loan made by
VPCM as co-lenders with respect to such indebtedness, which amount includes the
Loan (as hereinafter defined) evidenced by this Note, to refinance the seven (7)
cross-collateralized and cross-defaulted loans referenced in the Existing Loan
Agreement, to amend and restate the terms thereof, and to re-allocate the loan
amounts among the seven (7) Crossed Loans representing additional advances to
certain borrowers under the Loan Agreement and corresponding reductions of loan
amounts to other borrowers under the Loan Agreement; and
WHEREAS,
Borrower and Lender
have agreed in the manner hereinafter set forth to divide the Existing Note and
Existing Loan into two notes and loans, one in the amount of and evidenced by
this Note and one in the amount of $__________ evidenced by that certain
Amended, Restated and Consolidated Promissory Note (the “Companion Note”) in
favor of VPCM from Borrower in such amount and secured by the Instrument (as
hereinafter defined), and to reduce the amount of the indebtedness to Borrower
by the principal amount of $__________ under the loan now evidenced by this Note
and under the loan now evidenced by the Companion Note in the amount of
$$__________, which amount reflects a reallocation of the loan amounts from the
Existing Loan to Borrower to certain of the other six (6) Crossed Loans governed
by the Existing Loan Agreement and represents a repayment by Borrower to effect
such reduction, and (i) to amend the Note Rate on the Existing Note and
Existing Loan, and on the Companion Note and the loan evidenced thereby, to six
and twenty five hundredths percent (6.25%) per annum, (ii) to extend the
maturity date of the Loan evidenced by the Existing Note, and of the loan
evidenced by the Companion Note, to January 15, 2017, and (iii) to
modify certain other terms and provisions of the Existing Note by amending and
restating the terms thereof into this new Amended, Restated and Consolidated
Promissory Note in the principal sum of _____________ ($__________) (the “Loan”)
with a corresponding amendment and restatement evidenced by the Companion Note;
and
NOW, THEREFORE,
in
consideration of the foregoing recitals, which are incorporated into the
operative provisions of this Note by this reference, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, Borrower hereby covenants and agrees with Lender as
follows:
A.
Outstanding
Indebtedness.
The aggregate outstanding indebtedness evidenced
by the Existing Note as so adjusted, if applicable, as set forth above, is
_____________ ($__________), it being understood that no interest under the
Existing Note is accrued and unpaid for the period prior to the date hereof, but
that interest shall accrue from and after the date hereof at the rate or rates
herein provided; and the aggregate outstanding indebtedness evidenced by the
portion of the Existing Note amended and restated hereby is _____________
($__________), it being understood that the remaining portion of the aggregate
outstanding indebtedness evidenced by the Existing Note as so adjusted, if
applicable, as set forth above, is amended and restated by the Companion Note in
the amount of $_________.
B.
Amendment
and Restatement of Existing Note.
All of the terms, covenants
and provisions of the Existing Note are hereby modified, amended and restated
herein and in the Companion Note so that henceforth such terms, covenants and
provisions shall be those set forth in this Amended, Restated and Consolidated
Promissory Note and the Companion Note, and the Existing Note, as so modified,
amended and restated in their entirety, are hereby ratified and confirmed in all
respects by Borrower.
C.
Borrower's
Promise to Pay.
FOR VALUE RECEIVED
, Borrower
promises to pay to the order of Lender, at c/o Prudential Asset Resources,
Inc., 2100 Ross Avenue, Suite 2500, Dallas, Texas 75201,
Attention: Asset Management Department; Reference Loan
No. _______ and ________, the principal sum of _____________ ($__________),
with interest on the unpaid balance (“
Balance
”) at the rate of six
and twenty five hundredths percent (6.25%) per annum (“
Note Rate
”) from and including
the date hereof (“
Funding
Date
”) until and including
Maturity (defined below). Capitalized terms used without definition
shall have the meanings ascribed to them in the Instrument (defined
below).
1.
Regular
Payments
. Principal and interest shall be payable as
follows:
(a) Interest
only shall be paid in arrears in thirty (30) monthly installments of
_____________ ($__________) each, commencing on February 15, 2010 and
continuing on the fifteenth (15th) day of each succeeding month to and including
July 15, 2012. Each payment due date under Paragraphs 1(a)
and 1(b) of this Note is referred to as a “
Due Date
”.
(b) Principal
and interest shall be paid in fifty three (53) monthly installments of
_____________ ($__________) each commencing on August 15, 2012 and
continuing on the fifteenth (15th) day of each succeeding month to and including
December 15, 2016.
(c) The
entire Obligations (as defined in the Instrument (defined below)) shall be due
and payable on January 15, 2017 (“
Maturity
Date
”). “
Maturity
” shall mean the
Maturity Date or earlier date that the Obligations may be due and payable by
acceleration by Lender as provided in the Documents.
(d) Interest
on the Balance for any full month shall be calculated on the basis of a three
hundred sixty (360) day year consisting of twelve (12) months of thirty (30)
days each. For any partial month, interest shall be due in an amount
equal to (i) the Balance multiplied by (ii) the Note Rate divided by
(iii) 360 multiplied by (iv) the number of days during such partial
month that any Balance is outstanding to (but excluding) the date of
payment.
2.
Late Payment and Default
Interest
.
(a)
Late
Charge.
If any scheduled payment due under this Note is not
fully paid by its Due Date (other than the principal payment due on the Maturity
Date), a charge of $100.00 per day (the “
Daily Charge
”) shall be
assessed for each day that elapses from and after the Due Date until such
payment is made in full (including the date payment is made), subject, however,
if, as set forth below, Borrower is then entitled to the “Daily Charge Grace
Period”, that such failure continues for two (2) days after such Due Date (the
“
Daily Charge Grace
Period
”); provided, however, that if Borrower receives the
benefit of such Daily Charge Grace Period within any twelve (12) month period,
Borrower shall have no further right to the Daily Charge Grace Period during
that twelve (12) month period; provided, further, however, that if
any such payment, together with all accrued Daily Charges, is not fully paid by
the fourteenth (14th) day following the applicable Due Date, a late charge equal
to the lesser of (i) four percent (4%) of such payment or (ii) the
maximum amount allowed by law (the “
Late Charge
”) shall be
assessed and shall be immediately due and payable. The Late Charge
shall be payable in lieu of Daily Charges that shall have
accrued. The Late Charge may be assessed only once on each overdue
payment. These charges shall be paid to defray the expenses incurred
by Lender in handling and processing such delinquent payment(s) and to
compensate Lender for the loss of the use of such funds. The Daily
Charge and Late Charge shall be secured by the Documents. The
imposition of the Daily Charge, Late Charge, and/or requirement that interest be
paid at the Default Rate (defined below) shall not be construed in any way to
(i) excuse Borrower from its obligation to make each payment under this
Note promptly when due or (ii) preclude Lender from exercising any rights
or remedies available under the Documents upon an Event of Default.
(b)
Acceleration.
Upon
any Event of Default, Lender may declare the Balance, unpaid accrued interest,
the Prepayment Premium (defined below) and all other Obligations immediately due
and payable in full.
(c)
Default
Rate.
Upon an Event of Default or at Maturity, whether by
acceleration (due to a voluntary or involuntary default) or otherwise, the
entire Obligations (excluding accrued but unpaid interest if prohibited by law)
shall bear interest at the Default Rate. The “
Default Rate
” shall be the
lesser of (i) the maximum rate allowed by law or (ii) five percent
(5%) plus the greater of (A) the Note Rate or (B) the prime rate (for
corporate loans at large United States money center commercial banks) published
in The Wall Street Journal on the first Business Day (defined below) of the
month in which the Event of Default or Maturity occurs and on the first Business
Day of every month thereafter. The term “
Business Day
” shall mean each
Monday through Friday except for days in which commercial banks are not
authorized to open or are required by law to close in New York, New
York.
3.
Application of
Payments
. Until an Event of Default occurs, all payments
received under this Note shall be applied in the following order: (a) to
unpaid Daily Charges, Late Charges and costs of
collection; (b) to any Prepayment Premium
due; (c) to interest due on the Balance; and
(d) then to the Balance. After an Event of Default, all payments
shall be applied in any order determined by Lender in its sole
discretion.
4.
Prepayment
. This
Note may be prepaid on any date, in whole or in part, upon at least thirty (30)
days’ prior written notice to Lender and upon payment of all accrued interest
(and other Obligations due under the Documents) and a prepayment premium (“
Prepayment Premium
”) equal to
the greater of (a) one percent (1%) of the principal amount being prepaid
multiplied by the quotient of the number of full months remaining until the
Maturity Date, calculated as of the prepayment date, divided by the number of
full months comprising the term of this Note, or (b) the Present Value of
the Loan (defined below) less the amount of principal and accrued interest (if
any) being prepaid, calculated as of the prepayment date. The
Prepayment Premium shall be due and payable, except as provided in the
Instrument or as limited by law, upon any prepayment of this Note, whether
voluntary or involuntary, and Lender shall not be obligated to accept any
prepayment of this Note unless it is accompanied by the Prepayment Premium, all
accrued interest and all other Obligations due under the
Documents. Lender shall notify Borrower of the amount of and the
calculation used to determine the Prepayment Premium. Borrower agrees
that (a) Lender shall not be obligated to actually reinvest the amount
prepaid in any Treasury obligation and (b) the Prepayment Premium is
directly related to the damages that Lender will suffer as a result of the
prepayment. The “
Present Value of the Loan
”
shall be determined by discounting all scheduled payments remaining to the
Maturity Date attributable to the amount being prepaid at the Discount Rate
(defined below). If prepayment occurs on a date other than a Due
Date, the actual number of days remaining from the date of prepayment to the
next Due Date will be used to discount within this period. The “
Discount Rate
” is the rate
which, when compounded monthly, is equivalent to the Treasury Rate (defined
below), when compounded semi-annually. The “
Treasury Rate
” is the
semi-annual yield on the Treasury Constant Maturity Series with maturity equal
to the remaining weighted average life of the Loan, for the week prior to the
prepayment date, as reported in Federal Reserve Statistical
Release H.15 - Selected Interest Rates, conclusively determined by
Lender (absent a clear mathematical calculation error) on the prepayment
date. The rate will be determined by linear interpolation between the
yields reported in Release H.15, if necessary. If
Release H.15 is no longer published, Lender shall select a comparable
publication to determine the Treasury Rate. Borrower agrees that
Lender shall not be obligated actually to reinvest the amount prepaid in any
Treasury obligations as a condition precedent to receiving the Prepayment
Premium. Notwithstanding the foregoing, no Prepayment Premium shall
be due if this Note is prepaid during the last sixty (60) days prior to the
Maturity Date.
With
respect to the foregoing provisions, Borrower hereby expressly agrees as
follows:
(a) The
Note Rate provided herein has been determined based on the sum of (i) the
Treasury Rate in effect at the time the Note Rate was determined under the Loan
application submitted to Lender, plus (ii) an interest rate spread over
such Treasury Rate, which together represent Lender’s agreed-upon return for
making the proceeds of the Loan hereunder available to Borrower over the term of
such Loan.
(b) The
determination of the Note Rate, and in particular the aforesaid interest rate
spread, were based on the expectation and agreement of Borrower and Lender that
the principal sums advanced hereunder would not be prepaid during the term of
this Note, or if any such prepayment occurs, the Prepayment Premium (calculated
in the manner set forth above) would apply (except as expressly permitted by
this Note).
(c) The
Lender’s business involves making financial commitments to others based in part
on the returns it expects to receive from this Note and other similar loans made
by Lender, and Lender’s financial performance as a business depends not only on
the returns from each loan or investment it makes but also upon the aggregate
amounts of the loans and investments it is able to make over any given period of
time.
(d) In
the event of a prepayment hereunder, Lender will be required to redeploy the
funds received into other loans or investments, which (i) may not provide a
return to Lender comparable to the return Lender anticipates based on the Note
Rate and (ii) may reduce the total amount of loans or investments Lender is
able to make during the term of the Loan, which in turn may impair the
profitability of Lender’s business. Therefore, in order to compensate
Lender for the potential impact and risks to its business of prepayments under
this Note, Lender has limited Borrower’s right to prepay this Note and has
offered the method of calculation of the Prepayment Premium set forth
above.
(e) Borrower
acknowledges that (i) Lender could have determined that it would not permit
any prepayments under the Note during its term, and therefore, in electing to
permit prepayments hereunder, Lender is entitled to determine and negotiate the
terms on which it will accept prepayments of its loans, and (ii) Borrower
could have elected to negotiate more permissive prepayment provisions and/or a
more favorable manner of calculating the Prepayment Premium, but in such event
the applicable interest rate spread, and therefore the Note Rate, would have
been higher to compensate Lender for the potential loss of income on account of
the risk that Borrower might elect to prepay this Note at an earlier time and/or
for a lesser Prepayment Premium than set forth herein.
Therefore,
in consideration of Lender’s agreement to the Note Rate set forth herein, and in
recognition of Lender’s reliance on the prepayment provisions of this Note
(including the method of calculating the Prepayment Premium), Borrower agrees
that the manner of calculation of the Prepayment Premium set forth in this Note
represents bargained-for compensation to Lender for granting to Borrower the
privilege of prepaying this Note on the terms set forth herein and for the
potential loss of future income to Lender arising from having to redeploy the
amounts prepaid under this Note into other loans or investments. As
such, the Prepayment Premium constitutes reasonable compensation to Lender for
making the Loan on the terms reflected in this Note and does not represent any
form of damages (liquidated or otherwise), nor does it represent a
penalty.
5.
No
Usury
. Under no circumstances shall the aggregate amount paid
or to be paid as interest under this Note exceed the highest lawful rate
permitted under applicable usury law (“
Maximum Rate
”). If
under any circumstances the aggregate amounts paid on this Note shall include
interest payments which would exceed the Maximum Rate, Borrower stipulates that
payment and collection of interest in excess of the Maximum Rate (“
Excess Amount
”) shall be
deemed the result of a mistake by both Borrower and Lender and Lender shall
promptly credit the Excess Amount against the Balance (without Prepayment
Premium or other premium) or refund to Borrower any portion of the Excess Amount
which cannot be so credited.
6.
Security and Documents
Incorporated
. This Note is the Note referred to and secured by
the Amended, Restated and Consolidated Mortgage and Security Agreement of even
date herewith between Borrower, as mortgagor, and Lender and VPCM, as mortgagee,
to be recorded in the real estate records of Bergen County, New Jersey (the
“
Instrument
”) and is
secured by the Property. In addition, this Note is secured by all
other mortgages, deeds of trust and other collateral described in and referenced
in the Loan Agreement. Borrower shall observe and perform all of the
terms and conditions in the Documents. The Documents are incorporated
into this Note as if fully set forth in this Note.
7.
Treatment of
Payments
. All payments under this Note shall be made, without
offset or deduction, (a) in lawful money of the United States of America at
the office of Lender or at such other place (and in the manner) Lender may
specify by written notice to Borrower, (b) in immediately available federal
funds, and (c) if received by Lender prior to 2:00 p.m. Eastern Time at
such place, shall be credited on that day, or, if received by Lender on or after
2:00 p.m. Eastern Time at such place, shall, at Lender’s option, be credited on
the next Business Day. Initially (unless waived by Lender), and until
Lender shall direct Borrower otherwise, Borrower shall make all payments due
under this Note in the manner set forth in Section 3.13 of the Instrument,
and in the event of full compliance by Borrower thereunder, Borrower shall have
no liability for any Late Charges, and it shall not constitute a default or
Event of Default hereunder or under any of the other Documents, if Lender fails
to initiate payment due through the Automated Clearing House network (or similar
electronic process) for settlement on the Due Date in a timely
manner. If any Due Date falls on a day which is not a Business Day,
then the Due Date shall be deemed to have fallen on the next succeeding Business
Day.
8.
Limited Recourse
Liability
. Except to the extent set forth in Paragraph 8
and Paragraph 9 of this Note, neither Borrower nor any general or limited
partner(s) or member(s) of Borrower nor any officers, directors, shareholders,
unitholders, general or limited partners, members, employees or agents of
Borrower or its general partners or members shall have any personal liability
for the Loan or any Obligations. Notwithstanding the preceding
sentence, Lender may bring a foreclosure action or other appropriate action to
enforce the Documents or realize upon and protect the Property (including,
without limitation, naming Borrower and any other necessary parties in the
actions)
and
IN ADDITION BORROWER, ANY
GENERAL PARTNER(S) OF BORROWER, MACK-CALI REALTY CORPORATION AND MACK-CALI
REALTY, L.P. (SOMETIMES HEREIN REFERRED TO,
SINGULARLY OR COLLECTIVELY,
AS THE “RECOURSE
PARTIES”) SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY
FOR
:
(a) any
amounts accrued and/or payable under any indemnities, guaranties, master leases
or similar instruments (which indemnities, guaranties, master leases, and
instruments consist, as of Closing, of the following
instruments: that certain Environmental and ERISA Indemnity
Agreement, that certain Recourse Liabilities Guaranty, and that certain Partial
Recourse Guaranty, each dated as of even date herewith, and Sections 8.03,
8.04, 8.05, 8.06 and 8.07 of the Instrument) furnished in connection with the
Loan, but excluding indemnities arising solely under Section 8.02 of the
Instrument;
(b) subject
to Section 4(b) of that certain Cash Management Agreement between Borrower,
Lender and VPCM of even date herewith (the “Cash Management Agreement”), the
amount of any assessments and taxes (accrued and/or payable prior to the
completion by Lender of a foreclosure on the Property or acceptance by Lender of
a deed or other conveyance of the Property in lieu of such foreclosure,
including the pro-rata share of current real estate taxes) with respect to the
Property;
(c) the
amount of any security deposits, rents prepaid more than one (1) month in
advance, or prepaid expenses of tenants to the extent not turned over to
(i) Lender upon foreclosure, sale (pursuant to power of sale), or
conveyance in lieu thereof, or (ii) a receiver or trustee for the Property
after appointment;
(d) the
amount of any insurance proceeds or condemnation awards neither turned over to
Lender nor used in compliance with the Documents;
(e) damages
suffered or incurred by Lender as a result of Borrower (i) entering into a
new Lease, (ii) entering into an amendment or termination of an existing
Lease, or (iii) accepting a termination, cancellation or surrender of an
existing Lease (other than with respect to a Lease with a Major Tenant which is
addressed in Paragraph 9(d) below) in breach of the leasing restrictions
set forth in Section 7 of the Assignment; provided, however, that in the
case of clauses (ii) and (iii) above, the Recourse Parties liability shall be
limited to the greater of:
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(1)
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the
present value (calculated at the Discount Rate) of the aggregate total
dollar amount (if any) by which (A) rental income and/or other tenant
obligations prior to the amendment or termination of the Lease exceeds
(B) rental income and/or other tenant obligations after the amendment
or termination of such Lease; and
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(2)
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any
amendment or termination fee or other consideration paid by or on behalf
of a tenant;
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provided,
however, that, in such event, such liability shall be limited to the Crossed
Loan (or Crossed Loans) applicable to the Individual Property (or Individual
Properties) in which the Lease is located;
(f) subject
to Section 4(b) of the Cash Management Agreement, damages suffered or
incurred by Lender by reason of any waste of the Property;
(g) the
amount of any rents or other income from the Property received by any of the
Recourse Parties after a default under the Documents and not otherwise applied
to the indebtedness under this Note or to the current (not deferred) operating
expenses of the Property; PROVIDED, HOWEVER, THAT THE RECOURSE
PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person
or entity related to or affiliated with any of the Recourse Parties except for
(A) reasonable salaries for on-site employees, (B) a reasonable
allocation of the salaries of off-site employees for accounting and management,
and (C) out-of-pocket expenses of Borrower’s management company relating to
the Property, but in no event shall such expenses include any profit or be
greater than prevailing market rates for any such services;
(h) the
face amount of any letter of credit required under the Documents or otherwise in
connection with the Loan that (i) Borrower fails to maintain or
(ii) as to which Borrower fails to replace such letter of credit with, or
post in lieu of such letter of credit, a cash deposit paid to Lender and held by
Lender as additional collateral under the Documents;
(i) the
amount of any security deposit (a “
Security Deposit
”) cashed or
applied by Borrower or any termination fee, cancellation fee or any other fee
(collectively, a “
Lease
Termination Fee
”) received by Borrower (x) in connection with a
lease termination, cancellation, surrender or expiration (but Lease Termination
Fees shall not include the application of, or surrender of, lease security
deposits at the scheduled expiration of the applicable lease in lieu of the
payment of the corresponding amount of rentals) within one hundred twenty (120)
days prior to or after an Event of Default under the Documents, (y) which
is greater than one (1) month’s base rent for the Lease to which the Security
Deposit and/or Lease Termination Fee applies, and (z) which is not either
(A) paid to Lender (or an escrow agent selected by Lender) to be disbursed
for the payment of Lender approved (or deemed approved) (1) tenant
improvements and/or (2) market leasing commissions, or, (B) if the
applicable Lease Termination Fees total less than $1,000,000 (with respect to
all of the Crossed Loans and properties that are the subject of the Loan
Agreement) in the aggregate during any such one hundred twenty (120) day period,
actually disbursed by Borrower for the payment of the Obligations (any Lease
Termination Fees that total more than $1,000,000 with respect to all of the
Crossed Loans and properties that are the subject of the Loan Agreement in the
aggregate during any such one hundred twenty (120) day period must, to the
extent in excess of such $1,000,000 aggregate threshold, be paid to Lender for
escrow as set forth in clause (A) to avoid recourse liability resulting under
this clause (i));
(j) following
a default under the Documents, all attorneys’ fees, including allocated costs of
Lender’s staff attorneys, and other expenses incurred by Lender in enforcing the
Documents if Borrower contests, delays, or otherwise hinders or opposes
(including, without limitation, the filing of a bankruptcy by Borrower or any
owners of any equity interests therein) any of Lender’s enforcement
actions; provided, however, that if in such action Borrower
successfully proves that no default occurred under the Documents, Borrower shall
not be required to reimburse Lender for such attorneys’ fees, allocated costs
and other expenses; and
(k) damages
suffered or incurred by Lender as a result of Borrower’s breach or violation of
Sections 2.10or 3.21 of the Instrument.
(l) the
“Recourse Guaranteed Amount”, as defined in the Partial Recourse Guaranty of
even date herewith from Mack-Cali Realty, L.P. (“Recourse Guarantor”), which
recourse liability shall be recourse to Borrower, jointly and severally with
Recourse Guarantor, to the same extent that Recourse Guarantor has recourse
liability for the Loan (all indebtedness evidenced by the Note and all
obligations set forth in the Documents) under the Partial Recourse Guaranty, as
Borrower covenants and agrees that the Loan shall be recourse to Borrower,
jointly and severally with Recourse Guarantor, to the same extent that Recourse
Guarantor has recourse liability for the Loan under the Partial Recourse
Guaranty, and that Borrower’s recourse under the Documents with respect to such
liability under the Partial Recourse Guaranty shall be reduced and/or released
at the same time and on the same terms as provided above for Recourse Guarantor;
and
(m) if,
pursuant to any lease under Section 3.4(c)(iii) of the Loan Agreement,
Borrower shall elect not to pay in full all leasing commissions for the initial
term of such lease (Borrower being required to pay all commissions when due), to
the extent of all leasing commissions for the initial term of such lease that
are not paid in full;
(n) Borrower
and the Recourse Parties shall, as set forth in Section 8.6 of the Loan
Agreement, have recourse liability for any Additional Parking Costs;
and
(o) Borrower
and the Recourse Parties shall, as set forth in Section 8.7 of the Loan
Agreement, have recourse liability for any Tuttle Title Loss.
9.
Full Recourse
Liability
. Notwithstanding the provisions of Paragraph 8
of this Note, the
RECOURSE
PARTIES SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY
for all
indebtedness evidenced by this Note and all Obligations set forth in the
Documents if:
(a) there
shall be any breach or violation of Article V of the Instrument; or
(b) there
shall be any fraud or material misrepresentation by any of the Recourse Parties
in connection with the Property, the Documents, the Loan Application, or any
other aspect of the Loan; or
(c) the
Property or any part thereof shall become an asset in (i) a voluntary
bankruptcy or insolvency proceeding or (ii) an involuntary bankruptcy or
insolvency proceeding which is not dismissed within ninety (90) days of
filing; provided, however, that this Paragraph 9(c) shall not
apply if (A) an involuntary bankruptcy is filed by Lender, or (B) the
involuntary filing was initiated by a third-party creditor independent of any
collusive action, participation or collusive communication by (1) Borrower,
(2) any partner, shareholder or member of Borrower or Borrower’s general
partner or managing member, or (3) any of the Recourse Parties;
or
(d) any
of the Recourse Parties (i) enters into a Lease with a Major Tenant,
(ii) enters into an amendment or termination of any Lease with a Major
Tenant, or (iii) accepts the termination, cancellation or surrender of any
Lease with a Major Tenant, in breach of the leasing restrictions set forth in
Section 7 of the Assignment; provided, however, that, in such event, such
liability shall be limited to the Crossed Loan (or Crossed Loans) applicable to
the Individual Property (or Individual Properties) in which the Lease is
located, except that in the event that the damages suffered or incurred by
Lender as a result of any of the Recourse Parties taking any such action
described in clauses (i), (ii) or (iii) above exceeds the amount of such Crossed
Loan (or Crossed Loans) applicable to the Individual Property (or Individual
Properties) in which the Lease is located, then the Recourse Parties shall have
joint and several personal liability for all such damages suffered or incurred
by Lender as a result of any of the Recourse Parties taking any such action
described in clauses (i), (ii) or (iii) above.
10.
Joint and Several
Liability
. This Note shall be the joint and several obligation
of all makers, endorsers, guarantors and sureties, and shall be binding upon
them and their respective successors and assigns and shall inure to the benefit
of Lender and its successors and assigns.
11.
Unconditional
Payment
. Borrower is and shall be obligated to pay principal,
interest and any and all other amounts which became payable hereunder or under
the other Documents absolutely and unconditionally and without abatement,
postponement, diminution or deduction and without any reduction for counterclaim
or setoff. In the event that at any time any payment received by
Lender hereunder shall be deemed by a court of competent jurisdiction to have
been a voidable preference or fraudulent conveyance under any bankruptcy,
insolvency or other debtor relief law, then the obligation to make such payment
shall survive any cancellation or satisfaction of this Note or return thereof to
Borrower and shall not be discharged or satisfied with any prior payment thereof
or cancellation of this Note, but shall remain a valid and binding obligation
enforceable in accordance with the terms and provisions hereof, and such payment
shall be immediately due and payable upon demand.
12.
Certain
Waivers
. Borrower and all others who may become liable for the
payment of all or any part of the Obligations do hereby severally waive
presentment and demand for payment, notice of dishonor, protest and notice of
protest, notice of non-payment and notice of intent to accelerate the maturity
hereof (and of such acceleration). No release of any security for the
Obligations or extension of time for payment of this Note or any installment
hereof, and no alteration, amendment or waiver of any provision of this Note,
the Instrument or the other Documents shall release, modify, amend, waive,
extend, change, discharge, terminate or affect the liability of Borrower, and
any other who may become liable for the payment of all or any part of the
Obligations, under this Note, the Instrument and the other Documents, except to
the extent expressly altered, amended or changed thereby.
13.
WAIVER OF
TRIAL BY JURY
. EACH OF BORROWER AND
LENDER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM FILED BY EITHER PARTY, WHETHER
IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE
DOCUMENTS, OR ANY ALLEGED ACTS OR OMISSIONS OF LENDER OR BORROWER IN CONNECTION
THEREWITH.
IN WITNESS WHEREOF,
this Note
has been duly executed by Borrower as of the date first set forth
above.
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BORROWER:
MACK-CALI REALTY, L.P.
,
a Delaware limited partnership
By:
MACK-CALI REALTY CORPORATION, a Maryland corporation, General
Partner
By:
____________________
Name: Barry
Lefkowitz
Title: Executive
Vice President and Chief Financial Officer
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Exhibit
10.5
FORM
OF AMENDED, RESTATED AND CONSOLIDATED PROMISSORY NOTE
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$___________
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January 15,
2010
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Loan
No. ____________
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THIS AMENDED, RESTATED AND
CONSOLIDATED PROMISSORY NOTE
is made by
MACK-CALI REALTY, L.P.
,
a Delaware limited
partnership (“
Borrower
”)
to the order of
VPCM,
LLC
, a Virginia limited liability company (“
Lender
”, which shall also mean
successors and assigns who become holders of this Note).
W I T N E S S E T
H
:
WHEREAS,
Borrower is the maker
of, or has assumed the obligations of the maker of, that certain Amended and
Restated Promissory Note dated as of November 12, 2004 in the original
principal amount of _____________ ($__________) and payable to the order of
Prudential, and of that certain Supplemental Promissory Note dated as of
November 12, 2004 in the original principal amount of _____________
($__________) and payable to the order of Prudential (collectively, the
“Existing Note”; the loan evidenced by the Existing Note is herein referred to
as the “Existing Loan”);
WHEREAS,
the Existing Loan was
made pursuant to that certain Amended and Restated Loan Agreement dated as of
November 12, 2004 (the “Existing Loan Agreement”) by and among, inter alia,
Prudential and Borrower relating to seven (7) cross-collateralized and
cross-defaulted loans in the aggregate principal amount of $150,000,000.00;
and
WHEREAS,
as of the date
hereof, Prudential has assigned to VPCM, LLC, a Virginia limited liability
company (“VPCM”), an undivided interest in and to the Existing Loan and Existing
Note and the other documents that further evidence or secure the indebtedness
evidenced thereby, so that Prudential and VPCM shall be co-lenders with respect
to such indebtedness; and
WHEREAS,
Borrower and Lender
have agreed, pursuant to that certain Amended and Restated Loan Agreement dated
of even date herewith (the “Loan Agreement”) by and among, inter alia, Lender,
Prudential, and Borrower relating to seven (7) cross-collateralized and
cross-defaulted loans in the aggregate principal amount of $150,000,000.00
(individually, a “Crossed Loan”, and collectively, the “Crossed Loans”), each of
which Crossed Loans consists of a loan made by Prudential and a loan made by
VPCM as co-lenders with respect to such indebtedness, which amount includes the
Loan (as hereinafter defined) evidenced by this Note, to refinance the seven (7)
cross-collateralized and cross-defaulted loans referenced in the Existing Loan
Agreement, to amend and restate the terms thereof, and to re-allocate the loan
amounts among the seven (7) Crossed Loans representing additional advances to
certain borrowers under the Loan Agreement and corresponding reductions of loan
amounts to other borrowers under the Loan Agreement; and
WHEREAS,
Borrower and Lender
have agreed in the manner hereinafter set forth to divide the Existing Note and
Existing Loan into two notes and loans, one in the amount of and evidenced by
this Note and one in the amount of $_________ evidenced by that certain Amended,
Restated and Consolidated Promissory Note (the “Companion Note”) in favor of
Prudential from Borrower in such amount and secured by the Instrument (as
hereinafter defined), and to reduce the amount of the indebtedness to Borrower
by the principal amount of $__________ under the loan now evidenced by this Note
and under the loan now evidenced by the Companion Note in the amount of
$________, which amount reflects a reallocation of the loan amounts from the
Existing Loan to Borrower to certain of the other six (6) Crossed Loans governed
by the Existing Loan Agreement and represents a repayment by Borrower to effect
such reduction, and (i) to amend the Note Rate on the Existing Note and
Existing Loan, and on the Companion Note and the loan evidenced thereby, to six
and twenty five hundredths percent (6.25%) per annum, (ii) to extend the
maturity date of the Loan evidenced by the Existing Note, and of the loan
evidenced by the Companion Note, to January 15, 2017, and (iii) to
modify certain other terms and provisions of the Existing Note by amending and
restating the terms thereof into this new Amended, Restated and Consolidated
Promissory Note in the principal sum of _____________ ($__________) (the “Loan”)
with a corresponding amendment and restatement evidenced by the Companion Note;
and
NOW, THEREFORE,
in
consideration of the foregoing recitals, which are incorporated into the
operative provisions of this Note by this reference, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, Borrower hereby covenants and agrees with Lender as
follows:
A.
Outstanding
Indebtedness.
The aggregate outstanding indebtedness evidenced
by the Existing Note as so adjusted, if applicable, as set forth above, is
_____________ ($__________), it being understood that no interest under the
Existing Note is accrued and unpaid for the period prior to the date hereof, but
that interest shall accrue from and after the date hereof at the rate or rates
herein provided; and the aggregate outstanding indebtedness evidenced by the
portion of the Existing Note amended and restated hereby is _____________
($__________), it being understood that the remaining portion of the aggregate
outstanding indebtedness evidenced by the Existing Note as so adjusted, if
applicable, as set forth above, is amended and restated by the Companion Note in
the amount of $________.
B.
Amendment
and Restatement of Existing Note.
All of the terms, covenants
and provisions of the Existing Note are hereby modified, amended and restated
herein and in the Companion Note so that henceforth such terms, covenants and
provisions shall be those set forth in this Amended, Restated and Consolidated
Promissory Note and the Companion Note, and the Existing Note, as so modified,
amended and restated in their entirety, are hereby ratified and confirmed in all
respects by Borrower.
C.
Borrower's
Promise to Pay.
FOR VALUE RECEIVED
, Borrower
promises to pay to the order of Lender, at c/o Prudential Asset Resources,
Inc., 2100 Ross Avenue, Suite 2500, Dallas, Texas 75201,
Attention: Asset Management Department; Reference Loan
No. ________ and ________, the principal sum of _____________
($__________), with interest on the unpaid balance (“
Balance
”) at the rate of six
and twenty five hundredths percent (6.25%) per annum (“
Note Rate
”) from and including
the date hereof (“
Funding
Date
”) until and including
Maturity (defined below). Capitalized terms used without definition
shall have the meanings ascribed to them in the Instrument (defined
below).
1.
Regular
Payments
. Principal and interest shall be payable as
follows:
(a) Interest
only shall be paid in arrears in thirty (30) monthly installments of
_____________ ($__________) each, commencing on February 15, 2010 and
continuing on the fifteenth (15th) day of each succeeding month to and including
July 15, 2012. Each payment due date under Paragraphs 1(a)
and 1(b) of this Note is referred to as a “
Due Date
”.
(b) Principal
and interest shall be paid in fifty three (53) monthly installments of
_____________ ($__________) each commencing on August 15, 2012 and
continuing on the fifteenth (15th) day of each succeeding month to and including
December 15, 2016.
(c) The
entire Obligations (as defined in the Instrument (defined below)) shall be due
and payable on January 15, 2017 (“
Maturity
Date
”). “
Maturity
” shall mean the
Maturity Date or earlier date that the Obligations may be due and payable by
acceleration by Lender as provided in the Documents.
(d) Interest
on the Balance for any full month shall be calculated on the basis of a three
hundred sixty (360) day year consisting of twelve (12) months of thirty (30)
days each. For any partial month, interest shall be due in an amount
equal to (i) the Balance multiplied by (ii) the Note Rate divided by
(iii) 360 multiplied by (iv) the number of days during such partial
month that any Balance is outstanding to (but excluding) the date of
payment.
2.
Late Payment and Default
Interest
.
(a)
Late
Charge.
If any scheduled payment due under this Note is not
fully paid by its Due Date (other than the principal payment due on the Maturity
Date), a charge of $100.00 per day (the “
Daily Charge
”) shall be
assessed for each day that elapses from and after the Due Date until such
payment is made in full (including the date payment is made), subject, however,
if, as set forth below, Borrower is then entitled to the “Daily Charge Grace
Period”, that such failure continues for two (2) days after such Due Date (the
“
Daily Charge Grace
Period
”); provided, however, that if Borrower receives the
benefit of such Daily Charge Grace Period within any twelve (12) month period,
Borrower shall have no further right to the Daily Charge Grace Period during
that twelve (12) month period; provided, further, however, that if
any such payment, together with all accrued Daily Charges, is not fully paid by
the fourteenth (14th) day following the applicable Due Date, a late charge equal
to the lesser of (i) four percent (4%) of such payment or (ii) the
maximum amount allowed by law (the “
Late Charge
”) shall be
assessed and shall be immediately due and payable. The Late Charge
shall be payable in lieu of Daily Charges that shall have
accrued. The Late Charge may be assessed only once on each overdue
payment. These charges shall be paid to defray the expenses incurred
by Lender in handling and processing such delinquent payment(s) and to
compensate Lender for the loss of the use of such funds. The Daily
Charge and Late Charge shall be secured by the Documents. The
imposition of the Daily Charge, Late Charge, and/or requirement that interest be
paid at the Default Rate (defined below) shall not be construed in any way to
(i) excuse Borrower from its obligation to make each payment under this
Note promptly when due or (ii) preclude Lender from exercising any rights
or remedies available under the Documents upon an Event of Default.
(b)
Acceleration.
Upon
any Event of Default, Lender may declare the Balance, unpaid accrued interest,
the Prepayment Premium (defined below) and all other Obligations immediately due
and payable in full.
(c)
Default
Rate.
Upon an Event of Default or at Maturity, whether by
acceleration (due to a voluntary or involuntary default) or otherwise, the
entire Obligations (excluding accrued but unpaid interest if prohibited by law)
shall bear interest at the Default Rate. The “
Default Rate
” shall be the
lesser of (i) the maximum rate allowed by law or (ii) five percent
(5%) plus the greater of (A) the Note Rate or (B) the prime rate (for
corporate loans at large United States money center commercial banks) published
in The Wall Street Journal on the first Business Day (defined below) of the
month in which the Event of Default or Maturity occurs and on the first Business
Day of every month thereafter. The term “
Business Day
” shall mean each
Monday through Friday except for days in which commercial banks are not
authorized to open or are required by law to close in New York, New
York.
3.
Application of
Payments
. Until an Event of Default occurs, all payments
received under this Note shall be applied in the following order: (a) to
unpaid Daily Charges, Late Charges and costs of
collection; (b) to any Prepayment Premium
due; (c) to interest due on the Balance; and
(d) then to the Balance. After an Event of Default, all payments
shall be applied in any order determined by Lender in its sole
discretion.
4.
Prepayment
. This
Note may be prepaid on any date, in whole or in part, upon at least thirty (30)
days’ prior written notice to Lender and upon payment of all accrued interest
(and other Obligations due under the Documents) and a prepayment premium (“
Prepayment Premium
”) equal to
the greater of (a) one percent (1%) of the principal amount being prepaid
multiplied by the quotient of the number of full months remaining until the
Maturity Date, calculated as of the prepayment date, divided by the number of
full months comprising the term of this Note, or (b) the Present Value of
the Loan (defined below) less the amount of principal and accrued interest (if
any) being prepaid, calculated as of the prepayment date. The
Prepayment Premium shall be due and payable, except as provided in the
Instrument or as limited by law, upon any prepayment of this Note, whether
voluntary or involuntary, and Lender shall not be obligated to accept any
prepayment of this Note unless it is accompanied by the Prepayment Premium, all
accrued interest and all other Obligations due under the
Documents. Lender shall notify Borrower of the amount of and the
calculation used to determine the Prepayment Premium. Borrower agrees
that (a) Lender shall not be obligated to actually reinvest the amount
prepaid in any Treasury obligation and (b) the Prepayment Premium is
directly related to the damages that Lender will suffer as a result of the
prepayment. The “
Present Value of the Loan
”
shall be determined by discounting all scheduled payments remaining to the
Maturity Date attributable to the amount being prepaid at the Discount Rate
(defined below). If prepayment occurs on a date other than a Due
Date, the actual number of days remaining from the date of prepayment to the
next Due Date will be used to discount within this period. The “
Discount Rate
” is the rate
which, when compounded monthly, is equivalent to the Treasury Rate (defined
below), when compounded semi-annually. The “
Treasury Rate
” is the
semi-annual yield on the Treasury Constant Maturity Series with maturity equal
to the remaining weighted average life of the Loan, for the week prior to the
prepayment date, as reported in Federal Reserve Statistical
Release H.15 - Selected Interest Rates, conclusively determined by
Lender (absent a clear mathematical calculation error) on the prepayment
date. The rate will be determined by linear interpolation between the
yields reported in Release H.15, if necessary. If
Release H.15 is no longer published, Lender shall select a comparable
publication to determine the Treasury Rate. Borrower agrees that
Lender shall not be obligated actually to reinvest the amount prepaid in any
Treasury obligations as a condition precedent to receiving the Prepayment
Premium. Notwithstanding the foregoing, no Prepayment Premium shall
be due if this Note is prepaid during the last sixty (60) days prior to the
Maturity Date.
With
respect to the foregoing provisions, Borrower hereby expressly agrees as
follows:
(a) The
Note Rate provided herein has been determined based on the sum of (i) the
Treasury Rate in effect at the time the Note Rate was determined under the Loan
application submitted to Lender, plus (ii) an interest rate spread over
such Treasury Rate, which together represent Lender’s agreed-upon return for
making the proceeds of the Loan hereunder available to Borrower over the term of
such Loan.
(b) The
determination of the Note Rate, and in particular the aforesaid interest rate
spread, were based on the expectation and agreement of Borrower and Lender that
the principal sums advanced hereunder would not be prepaid during the term of
this Note, or if any such prepayment occurs, the Prepayment Premium (calculated
in the manner set forth above) would apply (except as expressly permitted by
this Note).
(c) The
Lender’s business involves making financial commitments to others based in part
on the returns it expects to receive from this Note and other similar loans made
by Lender, and Lender’s financial performance as a business depends not only on
the returns from each loan or investment it makes but also upon the aggregate
amounts of the loans and investments it is able to make over any given period of
time.
(d) In
the event of a prepayment hereunder, Lender will be required to redeploy the
funds received into other loans or investments, which (i) may not provide a
return to Lender comparable to the return Lender anticipates based on the Note
Rate and (ii) may reduce the total amount of loans or investments Lender is
able to make during the term of the Loan, which in turn may impair the
profitability of Lender’s business. Therefore, in order to compensate
Lender for the potential impact and risks to its business of prepayments under
this Note, Lender has limited Borrower’s right to prepay this Note and has
offered the method of calculation of the Prepayment Premium set forth
above.
(e) Borrower
acknowledges that (i) Lender could have determined that it would not permit
any prepayments under the Note during its term, and therefore, in electing to
permit prepayments hereunder, Lender is entitled to determine and negotiate the
terms on which it will accept prepayments of its loans, and (ii) Borrower
could have elected to negotiate more permissive prepayment provisions and/or a
more favorable manner of calculating the Prepayment Premium, but in such event
the applicable interest rate spread, and therefore the Note Rate, would have
been higher to compensate Lender for the potential loss of income on account of
the risk that Borrower might elect to prepay this Note at an earlier time and/or
for a lesser Prepayment Premium than set forth herein.
Therefore,
in consideration of Lender’s agreement to the Note Rate set forth herein, and in
recognition of Lender’s reliance on the prepayment provisions of this Note
(including the method of calculating the Prepayment Premium), Borrower agrees
that the manner of calculation of the Prepayment Premium set forth in this Note
represents bargained-for compensation to Lender for granting to Borrower the
privilege of prepaying this Note on the terms set forth herein and for the
potential loss of future income to Lender arising from having to redeploy the
amounts prepaid under this Note into other loans or investments. As
such, the Prepayment Premium constitutes reasonable compensation to Lender for
making the Loan on the terms reflected in this Note and does not represent any
form of damages (liquidated or otherwise), nor does it represent a
penalty.
5.
No
Usury
. Under no circumstances shall the aggregate amount paid
or to be paid as interest under this Note exceed the highest lawful rate
permitted under applicable usury law (“
Maximum Rate
”). If
under any circumstances the aggregate amounts paid on this Note shall include
interest payments which would exceed the Maximum Rate, Borrower stipulates that
payment and collection of interest in excess of the Maximum Rate (“
Excess Amount
”) shall be
deemed the result of a mistake by both Borrower and Lender and Lender shall
promptly credit the Excess Amount against the Balance (without Prepayment
Premium or other premium) or refund to Borrower any portion of the Excess Amount
which cannot be so credited.
6.
Security and Documents
Incorporated
. This Note is the Note referred to and secured by
the Amended, Restated and Consolidated Mortgage and Security Agreement of even
date herewith between Borrower, as mortgagor, and Lender and Prudential, as
mortgagee, to be recorded in the real estate records of Bergen County, New
Jersey (the “
Instrument
”) and is secured by
the Property. In addition, this Note is secured by all other
mortgages, deeds of trust and other collateral described in and referenced in
the Loan Agreement. Borrower shall observe and perform all of the
terms and conditions in the Documents. The Documents are incorporated
into this Note as if fully set forth in this Note.
7.
Treatment of
Payments
. All payments under this Note shall be made, without
offset or deduction, (a) in lawful money of the United States of America at
the office of Lender or at such other place (and in the manner) Lender may
specify by written notice to Borrower, (b) in immediately available federal
funds, and (c) if received by Lender prior to 2:00 p.m. Eastern Time at
such place, shall be credited on that day, or, if received by Lender on or after
2:00 p.m. Eastern Time at such place, shall, at Lender’s option, be credited on
the next Business Day. Initially (unless waived by Lender), and until
Lender shall direct Borrower otherwise, Borrower shall make all payments due
under this Note in the manner set forth in Section 3.13 of the Instrument,
and in the event of full compliance by Borrower thereunder, Borrower shall have
no liability for any Late Charges, and it shall not constitute a default or
Event of Default hereunder or under any of the other Documents, if Lender fails
to initiate payment due through the Automated Clearing House network (or similar
electronic process) for settlement on the Due Date in a timely
manner. If any Due Date falls on a day which is not a Business Day,
then the Due Date shall be deemed to have fallen on the next succeeding Business
Day.
8.
Limited Recourse
Liability
. Except to the extent set forth in Paragraph 8
and Paragraph 9 of this Note, neither Borrower nor any general or limited
partner(s) or member(s) of Borrower nor any officers, directors, shareholders,
unitholders, general or limited partners, members, employees or agents of
Borrower or its general partners or members shall have any personal liability
for the Loan or any Obligations. Notwithstanding the preceding
sentence, Lender may bring a foreclosure action or other appropriate action to
enforce the Documents or realize upon and protect the Property (including,
without limitation, naming Borrower and any other necessary parties in the
actions)
and
IN ADDITION BORROWER, ANY
GENERAL PARTNER(S) OF BORROWER, MACK-CALI REALTY CORPORATION AND MACK-CALI
REALTY, L.P. (SOMETIMES HEREIN REFERRED TO,
SINGULARLY OR COLLECTIVELY,
AS THE “RECOURSE
PARTIES”) SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY
FOR
:
(a) any
amounts accrued and/or payable under any indemnities, guaranties, master leases
or similar instruments (which indemnities, guaranties, master leases, and
instruments consist, as of Closing, of the following
instruments: that certain Environmental and ERISA Indemnity
Agreement, that certain Recourse Liabilities Guaranty, and that certain Partial
Recourse Guaranty, each dated as of even date herewith, and Sections 8.03,
8.04, 8.05, 8.06 and 8.07 of the Instrument) furnished in connection with the
Loan, but excluding indemnities arising solely under Section 8.02 of the
Instrument;
(b) subject
to Section 4(b) of that certain Cash Management Agreement between Borrower,
Lender and Prudential of even date herewith (the “Cash Management Agreement”),
the amount of any assessments and taxes (accrued and/or payable prior to the
completion by Lender of a foreclosure on the Property or acceptance by Lender of
a deed or other conveyance of the Property in lieu of such foreclosure,
including the pro-rata share of current real estate taxes) with respect to the
Property;
(c) the
amount of any security deposits, rents prepaid more than one (1) month in
advance, or prepaid expenses of tenants to the extent not turned over to
(i) Lender upon foreclosure, sale (pursuant to power of sale), or
conveyance in lieu thereof, or (ii) a receiver or trustee for the Property
after appointment;
(d) the
amount of any insurance proceeds or condemnation awards neither turned over to
Lender nor used in compliance with the Documents;
(e) damages
suffered or incurred by Lender as a result of Borrower (i) entering into a
new Lease, (ii) entering into an amendment or termination of an existing
Lease, or (iii) accepting a termination, cancellation or surrender of an
existing Lease (other than with respect to a Lease with a Major Tenant which is
addressed in Paragraph 9(d) below) in breach of the leasing restrictions
set forth in Section 7 of the Assignment; provided, however, that in the
case of clauses (ii) and (iii) above, the Recourse Parties liability shall be
limited to the greater of:
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(1)
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the
present value (calculated at the Discount Rate) of the aggregate total
dollar amount (if any) by which (A) rental income and/or other tenant
obligations prior to the amendment or termination of the Lease exceeds
(B) rental income and/or other tenant obligations after the amendment
or termination of such Lease; and
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(2)
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any
amendment or termination fee or other consideration paid by or on behalf
of a tenant;
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provided,
however, that, in such event, such liability shall be limited to the Crossed
Loan (or Crossed Loans) applicable to the Individual Property (or Individual
Properties) in which the Lease is located;
(f) subject
to Section 4(b) of the Cash Management Agreement, damages suffered or
incurred by Lender by reason of any waste of the Property;
(g) the
amount of any rents or other income from the Property received by any of the
Recourse Parties after a default under the Documents and not otherwise applied
to the indebtedness under this Note or to the current (not deferred) operating
expenses of the Property; PROVIDED, HOWEVER, THAT THE RECOURSE
PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person
or entity related to or affiliated with any of the Recourse Parties except for
(A) reasonable salaries for on-site employees, (B) a reasonable
allocation of the salaries of off-site employees for accounting and management,
and (C) out-of-pocket expenses of Borrower’s management company relating to
the Property, but in no event shall such expenses include any profit or be
greater than prevailing market rates for any such services;
(h) the
face amount of any letter of credit required under the Documents or otherwise in
connection with the Loan that (i) Borrower fails to maintain or
(ii) as to which Borrower fails to replace such letter of credit with, or
post in lieu of such letter of credit, a cash deposit paid to Lender and held by
Lender as additional collateral under the Documents;
(i) the
amount of any security deposit (a “
Security Deposit
”) cashed or
applied by Borrower or any termination fee, cancellation fee or any other fee
(collectively, a “
Lease
Termination Fee
”) received by Borrower (x) in connection with a
lease termination, cancellation, surrender or expiration (but Lease Termination
Fees shall not include the application of, or surrender of, lease security
deposits at the scheduled expiration of the applicable lease in lieu of the
payment of the corresponding amount of rentals) within one hundred twenty (120)
days prior to or after an Event of Default under the Documents, (y) which
is greater than one (1) month’s base rent for the Lease to which the Security
Deposit and/or Lease Termination Fee applies, and (z) which is not either
(A) paid to Lender (or an escrow agent selected by Lender) to be disbursed
for the payment of Lender approved (or deemed approved) (1) tenant
improvements and/or (2) market leasing commissions, or, (B) if the
applicable Lease Termination Fees total less than $1,000,000 (with respect to
all of the Crossed Loans and properties that are the subject of the Loan
Agreement) in the aggregate during any such one hundred twenty (120) day period,
actually disbursed by Borrower for the payment of the Obligations (any Lease
Termination Fees that total more than $1,000,000 with respect to all of the
Crossed Loans and properties that are the subject of the Loan Agreement in the
aggregate during any such one hundred twenty (120) day period must, to the
extent in excess of such $1,000,000 aggregate threshold, be paid to Lender for
escrow as set forth in clause (A) to avoid recourse liability resulting under
this clause (i));
(j) following
a default under the Documents, all attorneys’ fees, including allocated costs of
Lender’s staff attorneys, and other expenses incurred by Lender in enforcing the
Documents if Borrower contests, delays, or otherwise hinders or opposes
(including, without limitation, the filing of a bankruptcy by Borrower or any
owners of any equity interests therein) any of Lender’s enforcement
actions; provided, however, that if in such action Borrower
successfully proves that no default occurred under the Documents, Borrower shall
not be required to reimburse Lender for such attorneys’ fees, allocated costs
and other expenses; and
(k) damages
suffered or incurred by Lender as a result of Borrower’s breach or violation of
Sections 2.10or 3.21 of the Instrument.
(l) the
“Recourse Guaranteed Amount”, as defined in the Partial Recourse Guaranty of
even date herewith from Mack-Cali Realty, L.P. (“Recourse Guarantor”), which
recourse liability shall be recourse to Borrower, jointly and severally with
Recourse Guarantor, to the same extent that Recourse Guarantor has recourse
liability for the Loan (all indebtedness evidenced by the Note and all
obligations set forth in the Documents) under the Partial Recourse Guaranty, as
Borrower covenants and agrees that the Loan shall be recourse to Borrower,
jointly and severally with Recourse Guarantor, to the same extent that Recourse
Guarantor has recourse liability for the Loan under the Partial Recourse
Guaranty, and that Borrower’s recourse under the Documents with respect to such
liability under the Partial Recourse Guaranty shall be reduced and/or released
at the same time and on the same terms as provided above for Recourse Guarantor;
and
(m) if,
pursuant to any lease under Section 3.4(c)(iii) of the Loan Agreement,
Borrower shall elect not to pay in full all leasing commissions for the initial
term of such lease (Borrower being required to pay all commissions when due), to
the extent of all leasing commissions for the initial term of such lease that
are not paid in full;
(n) Borrower
and the Recourse Parties shall, as set forth in Section 8.6 of the Loan
Agreement, have recourse liability for any Additional Parking Costs;
and
(o) Borrower
and the Recourse Parties shall, as set forth in Section 8.7 of the Loan
Agreement, have recourse liability for any Tuttle Title Loss.
9.
Full Recourse
Liability
. Notwithstanding the provisions of Paragraph 8
of this Note, the
RECOURSE
PARTIES SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY
for all
indebtedness evidenced by this Note and all Obligations set forth in the
Documents if:
(a) there
shall be any breach or violation of Article V of the Instrument; or
(b) there
shall be any fraud or material misrepresentation by any of the Recourse Parties
in connection with the Property, the Documents, the Loan Application, or any
other aspect of the Loan; or
(c) the
Property or any part thereof shall become an asset in (i) a voluntary
bankruptcy or insolvency proceeding or (ii) an involuntary bankruptcy or
insolvency proceeding which is not dismissed within ninety (90) days of
filing; provided, however, that this Paragraph 9(c) shall not
apply if (A) an involuntary bankruptcy is filed by Lender, or (B) the
involuntary filing was initiated by a third-party creditor independent of any
collusive action, participation or collusive communication by (1) Borrower,
(2) any partner, shareholder or member of Borrower or Borrower’s general
partner or managing member, or (3) any of the Recourse Parties;
or
(d) any
of the Recourse Parties (i) enters into a Lease with a Major Tenant,
(ii) enters into an amendment or termination of any Lease with a Major
Tenant, or (iii) accepts the termination, cancellation or surrender of any
Lease with a Major Tenant, in breach of the leasing restrictions set forth in
Section 7 of the Assignment; provided, however, that, in such event, such
liability shall be limited to the Crossed Loan (or Crossed Loans) applicable to
the Individual Property (or Individual Properties) in which the Lease is
located, except that in the event that the damages suffered or incurred by
Lender as a result of any of the Recourse Parties taking any such action
described in clauses (i), (ii) or (iii) above exceeds the amount of such Crossed
Loan (or Crossed Loans) applicable to the Individual Property (or Individual
Properties) in which the Lease is located, then the Recourse Parties shall have
joint and several personal liability for all such damages suffered or incurred
by Lender as a result of any of the Recourse Parties taking any such action
described in clauses (i), (ii) or (iii) above.
10.
Joint and Several
Liability
. This Note shall be the joint and several obligation
of all makers, endorsers, guarantors and sureties, and shall be binding upon
them and their respective successors and assigns and shall inure to the benefit
of Lender and its successors and assigns.
11.
Unconditional
Payment
. Borrower is and shall be obligated to pay principal,
interest and any and all other amounts which became payable hereunder or under
the other Documents absolutely and unconditionally and without abatement,
postponement, diminution or deduction and without any reduction for counterclaim
or setoff. In the event that at any time any payment received by
Lender hereunder shall be deemed by a court of competent jurisdiction to have
been a voidable preference or fraudulent conveyance under any bankruptcy,
insolvency or other debtor relief law, then the obligation to make such payment
shall survive any cancellation or satisfaction of this Note or return thereof to
Borrower and shall not be discharged or satisfied with any prior payment thereof
or cancellation of this Note, but shall remain a valid and binding obligation
enforceable in accordance with the terms and provisions hereof, and such payment
shall be immediately due and payable upon demand.
12.
Certain
Waivers
. Borrower and all others who may become liable for the
payment of all or any part of the Obligations do hereby severally waive
presentment and demand for payment, notice of dishonor, protest and notice of
protest, notice of non-payment and notice of intent to accelerate the maturity
hereof (and of such acceleration). No release of any security for the
Obligations or extension of time for payment of this Note or any installment
hereof, and no alteration, amendment or waiver of any provision of this Note,
the Instrument or the other Documents shall release, modify, amend, waive,
extend, change, discharge, terminate or affect the liability of Borrower, and
any other who may become liable for the payment of all or any part of the
Obligations, under this Note, the Instrument and the other Documents, except to
the extent expressly altered, amended or changed thereby.
13.
WAIVER OF
TRIAL BY JURY
. EACH OF BORROWER AND
LENDER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM FILED BY EITHER PARTY, WHETHER
IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE
DOCUMENTS, OR ANY ALLEGED ACTS OR OMISSIONS OF LENDER OR BORROWER IN CONNECTION
THEREWITH.
IN WITNESS WHEREOF,
this Note
has been duly executed by Borrower as of the date first set forth
above.
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BORROWER:
MACK-CALI REALTY, L.P.
,
a Delaware limited partnership
By:
MACK-CALI REALTY CORPORATION, a Maryland corporation, General
Partner
By:
____________________
Name: Barry
Lefkowitz
Title: Executive
Vice President and Chief Financial Officer
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Exhibit
10.6
Loan
No. ________ and _______
Dated as
of January 15, 2010
RECOURSE LIABILITIES
GUARANTY
FOR VALUE RECEIVED
, the
receipt and sufficiency of which is hereby acknowledged, and in accordance with
the terms provided below, the undersigned,
MACK-CALI REALTY CORPORATION
,
a Maryland corporation, and
MACK-CALI REALTY, L.P.
, a
Delaware limited partnership (whether one or more, hereinafter together called
“
Guarantor
” in the
singular), absolutely and unconditionally guarantees and agrees to pay to
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA,
a New Jersey corporation (“Prudential”), and
VPCM, LLC
, a Virginia limited
liability company (“VPCM”) (collectively hereinafter called “
Lender
”) at the address
designated in the Note (as hereinafter defined) for payment thereof or as such
address may be changed as provided in the Note or the Instrument, all Recourse
Liabilities (defined below) of
__________________
(hereinafter called “
Borrower
”), under Paragraphs 8
and 9 of the Note (defined below) (all such indebtedness is hereinafter called
the “
Recourse
Liabilities
”), and absolutely and unconditionally covenants and agrees
with Lender pursuant to the terms of this Recourse Liabilities Guaranty
(hereinafter called “
Guaranty
”), as
follows:
1. As
used in this Guaranty, the term (i) “
Documents
” shall have the same
meaning as set forth in the Instrument (defined below); (ii) “
Obligations
” shall have the
same meaning as set forth in the Instrument; (iii) “
Note
” shall refer,
collectively, to that certain Amended, Restated and Consolidated Promissory Note
in favor of Prudential in the original principal amount of _____________
($_________) and that certain Amended, Restated and Consolidated Promissory Note
in favor of VPCM in the original principal amount of _____________ ($_________),
each made by Borrower of even date herewith, in the aggregate original principal
amount of _____________ ($_________), as the same may be modified, amended,
renewed, extended, and/or substituted, which Note is secured by the Instrument
(as hereinafter defined); (iv) “
Instrument
” shall refer to
that certain Amended, Restated and Consolidated Mortgage and Security Agreement
of even date herewith, from Borrower to or for the benefit of Lender, and
recorded or to be recorded in the public records of __________; (v) “
Property
” shall have the same
meaning as set forth in the Instrument; (vi) “
Loan
” shall have the same
meaning as set forth in the Instrument; (vii) “
Costs
” shall have the same
meaning as set forth in the Instrument; and (viii) “
Recourse Liabilities
” shall
mean all limited and full recourse indebtedness of Borrower under Paragraphs 8
and 9 of the Note (it being noted that, as set forth in Subparagraph 8(b)
and Subparagraph 8(f) of each Note, Subparagraph 8(b) and
Subparagraph 8(f) are subject to Section 4(b) of that certain Cash
Management Agreement between Borrower and Lender of even date
herewith). Capitalized terms used herein and not defined herein shall
have the meaning ascribed to such terms in the Instrument.
2. Without
in any way limiting the liability of Guarantor under that certain Environmental
and ERISA Indemnity Agreement made by Guarantor and Borrower in favor of Lender
of even date herewith (the “
Environmental Indemnity
”), in
the event Borrower fails to pay the Recourse Liabilities when due, Guarantor
shall upon written demand of Lender promptly (not later than five (5) days after
written demand) and with due diligence pay to and for the benefit of Lender all
of the Recourse Liabilities, and, in addition, Guarantor further agrees to pay
any and all Costs incurred or expended by Lender in collecting any of the
Recourse Liabilities or in enforcing any right granted hereunder.
3. Guarantor’s
liability under this Guaranty shall be fully recourse and the Recourse
Liabilities are expressly not subject to, or limited by, any limitations on
Borrower’s liability set forth in the Note, and Guarantor agrees and
acknowledges that Lender is relying upon the full recourse nature of this
Guaranty in making the Loan to Borrower. Further, the scope of this
Guaranty shall in no way affect or limit any liability of Guarantor in its
capacity as an “Indemnitor” under the Environmental Indemnity.
4. In
the event that Lender elects to foreclose or to accept a deed-in-lieu of
foreclosure under the Instrument, Guarantor hereby acknowledges and agrees that
Guarantor’s recourse liability under this Guaranty as determined above shall be
calculated after deduction from the outstanding Obligations (including, but not
limited to, all principal, accrued interest, Prepayment Premium [as defined in
the Note], advances and other charges) of (i) the amount of money bid by or
received by Lender at a foreclosure sale, or (ii) the value of the Property
and any other property received by Lender as consideration for acceptance of a
deed-in-lieu of foreclosure.
5. In
the event that Lender accepts a deed-in-lieu of foreclosure, the value of the
Property and any other property received by Lender shall be conclusively
determined by an independent MAI appraiser, selected by Lender in its sole
discretion, having not less than five (5) years’ experience in appraising
commercial real estate in the area where the Land is located, unless in
connection with such acceptance of such deed-in-lieu of foreclosure Lender
agrees to an alternate valuation. The fees and costs of said MAI
appraiser shall be paid by Borrower.
6. Guarantor’s
recourse liability under this Guaranty shall continue with respect to any and
all Recourse Liabilities, until Lender has been paid the full amount of the
Obligations and the Recourse Liabilities
from any person or
entity at the time of foreclosure or following an Event of Default; provided,
however, that Guarantor’s recourse liability under this Guaranty shall be in
addition to, and not in lieu of, any liability or obligations of Guarantor under
any other document or other instrument delivered by Guarantor in connection with
the Loan.
7. Guarantor
also acknowledges and agrees that Lender shall have the right to seek collection
of the recourse portion of the Loan under this Guaranty from Guarantor without
commencement of any foreclosure proceedings.
8. Guarantor
expressly waives presentment for payment, demand, notice of demand and of
dishonor and nonpayment of the Recourse Liabilities, notice of intention to
accelerate the maturity of the Recourse Liabilities or any part thereof, notice
of disposition of collateral, notice of acceleration of the maturity of the
Recourse Liabilities or any part thereof, protest and notice of protest,
diligence in collecting, and the bringing of suit against any other
party. Guarantor agrees that Lender shall be under no obligation to:
(i) notify Guarantor of its acceptance of this Guaranty or of any advances
made or credit extended on the faith of this Guaranty; (ii) notify
Guarantor of Borrower’ s failure to make payments due under the Note as it
matures or the failure of Borrower to pay any of the Recourse Liabilities as
they mature or any default in performance of any obligations required by the
Note, the Instrument or any other Document; (iii) use diligence in
preserving the liability of any person with respect to the Recourse Liabilities,
or with respect to the Note, the Instrument or any other Document; (iv) use
diligence in collecting payments or demanding performance required by the terms
of the Note, the Instrument or any other Document; or (v) bring suit
against, or take any other action against, any party to enforce collection of
the Note, the Instrument or any other Document.
9. Guarantor
waives all legal defenses (at law or in equity) given or available to sureties
or guarantors other than the actual payment in full of all Recourse Liabilities,
and waives all legal defenses (at law or in equity) based upon the validity,
legality or enforceability of the Note, the Instrument or any other Document
(including, without limitation, any claim that the Note, the Instrument or any
other Document is or was in any way usurious), or otherwise with respect to the
following actions with respect to the Recourse Liabilities or Obligations, as to
which Guarantor consents that Lender may from time to time, before or after any
default by the Borrower, with or without further notice to or assent from
Guarantor:
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(a)
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exchange
with, release or surrender, either with or without consideration, to the
Borrower or to any Guarantor, pledgor or grantor any collateral, or waive,
release or subordinate any security interest, in whole or in part, now or
hereafter held as security for the Loan and/or any of the
Obligations;
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(b)
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waive
or delay the exercise of any of its rights or remedies against any person
or entity, including but not limited to the Borrower and/or any guarantor,
which waiver or delay shall not preclude the Lender from further exercise
of any of its rights, powers or privileges expressly provided for herein
or otherwise available, it being understood that all such rights and
remedies are cumulative;
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(c)
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release,
either fully or partially, any person or entity, including but not limited
to the Borrower, guarantor, endorser, surety or any judgment
debtor;
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(d)
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proceed
against the Guarantor for payment of the Recourse Liabilities, without
first proceeding against or joining the Borrower, any other guarantor,
surety, endorser of the Note, or any property securing payment of the
Note, the Instrument, or any other Loan
Documents;
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(e)
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renew,
extend or modify the terms of the Loan or any instrument or agreement
evidencing the Loan and/or any of the
Obligations;
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(f)
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apply
payments by the Borrower, the Guarantor, or any other person or entity to
the reduction of the Loan and/or Obligations in such manner and in such
amounts and at such time or times and in such order and priority as Lender
shall determine;
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(g)
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permit
any sale, transfer or encumbrance of the Property or any part thereof;
and
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(h)
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generally
deal with the Borrower or any of the security or other person or party as
the Lender shall determine.
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The
Guarantor hereby ratifies and confirms any such exchange, release, surrender,
subordination, waiver, delay, proceeding, renewal, extension, modification or
application, or other dealing, all of which actions shall be binding upon
Guarantor who hereby waives all defenses, counterclaims or set-offs which
Guarantor might otherwise have as a result of such actions, and who hereby
agrees to remain bound under this Guaranty. In accordance with the
terms of this Guaranty, Guarantor agrees and acknowledges that it shall be
primarily liable for payment of the Recourse Liabilities (subject only to the
limitations set forth above) in the event of default or
foreclosure.
10. Guarantor
acknowledges and agrees that from time to time, at Lender’s discretion, with or
without valuable consideration, without authorization from or notice to
Guarantor, and without impairing, modifying, releasing, limiting or otherwise
affecting Guarantor ’s liability under this Guaranty, Lender may:
(i) alter, compromise, accelerate, renew, extend or change the time or
manner for the payment of any or all of the Obligations
due under the Note, the
Instrument or any other Document (including, but not limited to, with respect to
any Recourse Liabilities); (ii) increase or reduce the rate of interest
with respect to the Note or Loan; (iii) take and surrender security,
exchange security by way of substitution, or in any way Lender deems necessary
take, accept, withdraw, subordinate, alter, amend, modify or eliminate security;
(iv) add or release or discharge endorsers, guarantors or other obligors;
(v) make changes of any kind whatsoever in the terms of the Note, the
Instrument or any other Document; (vi) make changes of any kind whatsoever
in the manner Lender does business with Borrower; (vii) settle or
compromise with Borrower or any other person(s) liable on the Note, the
Instrument or any other Document (including, but not limited to, any person(s)
liable with respect to any Recourse Liabilities) on such terms as Lender
determines; (viii) apply all moneys received from Borrower or others, or
from any security held (whether or not held under a mortgage, deed of trust,
deed to secure debt or other instrument), in such manner upon the Note or upon
any other obligation arising under the Instrument or any other Document (whether
then due or not) as Lender determines to be in its best interest (including, but
not limited to, application with respect to any Recourse Liabilities), and
without in any way being required to marshal securities or assets or to apply
all or any part of such moneys upon any particular part of the Note, the
Instrument or any other Document, except to the extent as may be expressly
provided therein.
11. Guarantor
agrees that Lender is not required to retain, hold, protect, exercise due care
with respect to, perfect security interests in, or otherwise assure or safeguard
any security for the Note or the Loan. Guarantor agrees and
acknowledges that Lender’s failure to do any of the foregoing and Lender’s
failure to exercise any other right or remedy available to Lender shall in no
way affect or alter any of Guarantor’s obligations under this Guaranty or any
security furnished by Guarantor, or give Guarantor any recourse against
Lender.
12. Guarantor
agrees that its liability under this Guaranty shall not be modified, changed,
released, limited or impaired in any manner whatsoever on account of any or all
of the following: (i) the incapacity, death, disability, dissolution or
termination of Guarantor, Borrower, Lender or any other person or entity;
(ii) the failure by Lender to file or enforce a claim against the estate
(either in administration, bankruptcy or other proceeding) of Borrower or any
other person or entity; (iii) the inability of Lender, Guarantor or any
other person or entity to recover from Borrower or any other party due to the
expiration of any statute of limitations or due to any other cause whatsoever;
(iv) the claim or assertion (whether or not successful) by Borrower or any
other person or entity of any available defenses, set-off rights or
counterclaims (other than payment in full of the Obligations) during any
judicial, arbitration, or mediation proceeding; (v) the transfer(s) of any
portion of the Property encumbered by the Instrument or of any other secured
collateral by other instrument securing payment of the Obligations;
(vi) any modifications, extensions, amendments, consents, releases or
waivers with respect to the Note, the Instrument or any other Document,
including, but not limited to, any other instrument that may now or hereafter
secure the payment of the Obligations or this Guaranty; (vii) Lender’s
failure to give any notice to Guarantor of any default under the Note, the
Instrument or any other Document, including, but not limited to, any other
instrument securing the payment of the Obligations or this Guaranty;
(viii) Guarantor is or becomes liable for any indebtedness owed by Borrower
to Lender other than that which is secured by this Guaranty; or (ix) any
impairment, modification, change, release or limitation of the liability of, or
stay of actions or lien enforcement proceedings against, Borrower, its property,
or its estate in bankruptcy resulting from the operation of any present or
future provision of 11 U.S.C. §101
et. seq.
or any other present
or future federal or state insolvency, bankruptcy or similar law (all of the
foregoing hereinafter collectively called “
Applicable Bankruptcy Law
”) or
from the decision of any court.
13. Guarantor
agrees and acknowledges that Lender shall not be required to (i) pursue any
other remedies before invoking the benefits of the guaranties contained in this
Guaranty, or (ii) make demand upon or institute suit or otherwise pursue or
exhaust its remedies against Borrower or any surety other than Guarantor or to
proceed against any security now or hereafter existing for the payment of any of
the Obligations (including, but not limited to, the Recourse
Liabilities). Guarantor also acknowledges that Lender may maintain an
action on this Guaranty without joining Borrower in such action and without
bringing a separate action against Borrower.
14. If
the Note, the Instrument or any other Document cannot be enforced against
Borrower for any reason whatsoever (including but not limited to the legal
defenses of
ultra
vires
, lack of authority, illegality,
force majeure
, act of God,
usury or impossibility), such unenforceability shall not affect Guarantor’s
liability under this Guaranty. Guarantor agrees that it shall be
liable to the extent provided in this Guaranty notwithstanding the fact that
Borrower may be held not to be liable for such Obligations
or not liable to the
same extent as Guarantor’s liability.
15. Guarantor
agrees that in the event that Borrower does not or otherwise is unable to pay
the Obligations for any reason (including, without limitation, liquidation,
dissolution, receivership, conservatorship, insolvency, bankruptcy, assignment
for the benefit of creditors, sale of all or substantially all assets,
reorganization, arrangement, composition, or readjustment of, or other similar
proceedings affecting the status, composition, identity, existence, assets or
obligations of Borrower, or the disaffirmance or termination of any of the
Recourse Liabilities or Obligations in or as a result of any such proceeding),
Guarantor shall pay the Recourse Liabilities and such occurrence shall in no way
affect Guarantor’s obligations under this Guaranty.
16. Should
the status, structure or composition of Borrower change, Guarantor agrees that
this Guaranty shall continue and shall also cover the Recourse Liabilities of
Borrower under the new status, structure or composition of Borrower, or of
Borrower’s successor. This Guaranty shall remain in full force and
effect notwithstanding any transfer of the Property encumbered by the
Instrument.
17. In
the event any payment by Borrower to Lender is held to constitute a preference
under any Applicable Bankruptcy Law, or if for any other reason Lender is
required to refund or does refund such payment or pay such amount to any other
party, Guarantor acknowledges that such payment by Borrower to Lender shall not
constitute a release of Guarantor from any liability under this Guaranty, but
Guarantor agrees to pay such amount to Lender upon demand and this Guaranty
shall continue to be effective or shall be reinstated, as the case may be, to
the extent of any such payment or payments.
18. Guarantor
agrees that it shall not have (i) the right to the benefit of, or to direct
the application of, any security held by Lender (including the Property covered,
conveyed or encumbered by the Instrument and any other instrument securing the
payment of the Obligations), (ii) any right to enforce any remedy which
Lender now has or hereafter may have against Borrower, or (iii) any right
to participate in any security now or hereafter held by Lender.
19. Guarantor
also agrees that it shall not have (i) any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation or
other right or remedy of Guarantor against Borrower or against any security
resulting from the exercise or election of any remedies by Lender (including the
exercise of the power of sale under the Instrument), or (ii) any defense
arising by reason of any disability or other defense of Borrower or by reason of
the cessation, from any cause (other than as a result of payment in full of the
Obligations, including, but not limited to, the Recourse Liabilities), of
Borrower’s liability under the Note, the Instrument or any other
Document.
20. Guarantor
agrees that any payment it makes of any amount pursuant to this Guaranty shall
not in any way entitle Guarantor to any right, title or interest (whether by way
of subrogation or otherwise) in and to the Note, the Instrument or any other
Document, or any proceeds attributable to the Note, the Instrument or any other
Document, unless and until the full amount of the Obligations owing to Lender
has been fully paid. At such time as the full amount of the
Obligations owing to Lender has been fully paid, Guarantor shall be subrogated
as to any payments made by it to Lender’s rights against Borrower and/or any
endorsers, sureties or other guarantors. For the purposes of the
preceding sentence only, the full amount of the Obligations shall not be deemed
to have been paid in full by foreclosure of the Instrument or by acceptance of a
deed-in-lieu of foreclosure, and Guarantor hereby waives and disclaims any
interest which it might have in the Property encumbered by the Instrument or
other collateral security for the Obligations, by subrogation or otherwise,
following such foreclosure or Lender’s acceptance of a deed-in-lieu of
foreclosure.
21. Guarantor
expressly subordinates its rights to payment of any indebtedness owing from
Borrower to Guarantor (including, but not limited to, property management and
construction management fees and leasing commissions, subject, however, to any
rights under those certain Conditional Assignments of Management Agreement and
Subordination of Management Agreement and Management Fees), whether now existing
or arising at any time in the future, to the right of Lender to first receive or
require payment of the Obligations in full (and including interest accruing on
the Note after any petition under Applicable Bankruptcy Law, which post-petition
interest Guarantor agrees shall remain a claim that is prior and superior to any
claim of Guarantor notwithstanding any contrary practice, custom or ruling in
proceedings under such Applicable Bankruptcy Law). Guarantor further
agrees, upon the occurrence of an Event of Default (subject, however, to any
rights under those certain Conditional Assignments of Management Agreement and
Subordination of Management Agreement and Management Fees), not to accept any
payment or satisfaction of any kind of indebtedness of Borrower to Guarantor or
any security for such indebtedness without Lender’s prior written
consent. If Guarantor should receive any such payment, satisfaction
or security for any indebtedness owed by Borrower to Guarantor, Guarantor agrees
to deliver the same without delay to Lender in the form received, endorsed or
assigned for application on account of, or as security for, the Recourse
Liability; until such payment, satisfaction or security is delivered, Guarantor
agrees to hold the same in trust for Lender.
22. Under
no circumstances shall the aggregate amount paid or agreed to be paid under this
Guaranty exceed the highest lawful rate permitted under applicable usury law
(the “
Maximum Rate
”) and
the payment obligations of Guarantor hereunder are hereby limited
accordingly. If under any circumstances, whether by reason of
advancement or acceleration of the unpaid principal balance of the Note or
otherwise, the aggregate amounts paid hereunder shall include amounts which by
law are deemed interest and which could exceed the Maximum Rate, Guarantor
stipulates that payment and collection of such excess amounts shall have been
and will be deemed to have been the result of a mistake on the part of both
Guarantor and Lender, and Lender shall promptly credit such excess (only to the
extent such interest payments are in excess of the Maximum Rate) against the
unpaid principal balance of the Note, and any portion of such excess payments
not capable of being so credited shall be refunded to Guarantor. The
term “
applicable law
” as
used in this paragraph shall mean the laws of the Property State (as such term
is defined in the Instrument) or the laws of the United States, whichever laws
allow the greater rate of interest, as such laws now exist or may be changed or
amended or come into effect in the future.
23. Guarantor
hereby represents, warrants and covenants to and with Lender as follows:
(i) the making of the Loan by Lender to Borrower is and will be of direct
interest, benefit and advantage to Guarantor; (ii) Guarantor is solvent, is
not bankrupt and has no outstanding liens, garnishments, bankruptcies or court
actions which could render Guarantor insolvent or bankrupt; (iii) there has
not been filed by or against Guarantor a petition in bankruptcy or a petition or
answer seeking an assignment for the benefit of creditors, the appointment of a
receiver, trustee, custodian or liquidator with respect to Guarantor or any
substantial portion of Guarantor’s property, reorganization, arrangement,
rearrangement, composition, extension, liquidation or dissolution or similar
relief under Applicable Bankruptcy Law; (iv) all reports, financial
statements and other financial and other data which have been or may hereafter
be furnished by Guarantor to Lender in connection with this Guaranty are or
shall be true and correct in all material respects and do not and will not omit
to state any fact or circumstance necessary to make the statements contained
therein not misleading and do or shall fairly represent the financial condition
of Guarantor as of the dates and the results of Guarantor’s operations for the
periods for which the same are furnished, and no material adverse change has
occurred since the dates of such reports, statements and other data in the
financial condition of Guarantor; (v) the execution, delivery and
performance of this Guaranty do not contravene, result in the breach of or
constitute a default under any mortgage, deed of trust, lease, promissory note,
loan agreement or other contract or agreement to which Guarantor is a party or
by which Guarantor or any of its properties may be bound or affected and do not
violate or contravene any law, order, decree, rule or regulation to which
Guarantor is subject; (vi) there are no judicial or administrative actions,
suits or proceedings pending or, to the best of Guarantor’s knowledge,
threatened against or affecting Guarantor which would have a material adverse
effect on either the Property or Borrower’s ability to perform its obligations,
or involving the validity, enforceability or priority of this Guaranty; and
(vii) this Guaranty constitutes the legal, valid and binding obligation of
Guarantor enforceable in accordance with its terms.
24. Guarantor
will furnish to Lender the financial statements and other information as to
Guarantor as are described in Section 3.15 of the Instrument, on or before
the deadlines set forth therein. Guarantor will provide to Lender
such other financial information and statements concerning Guarantor's financial
status as Lender may request from time to time, all of which shall be in form
and substance acceptable to Lender. Guarantor shall be in default
hereunder if there is any falsity in any material respect or any material
omission in any representation or statement made by Guarantor to Lender or in
any information furnished Lender, by or on behalf of Borrower or Guarantor, in
connection with the Loan and/or any of the Obligations, as determined by Lender
in its sole and absolute discretion.
25. Guarantor
further agrees to the following:
(a) Where
two or more persons or entities have executed this Guaranty, unless the context
clearly indicates otherwise, all references herein to “
Guarantor
” shall mean the
guarantors hereunder or either or any of them. All of the obligations
and liability of said guarantors hereunder shall be joint and
several. Suit may be brought against said guarantors, jointly and
severally, or against any one or more of them, or less than all of them, without
impairing the rights of Lender against the other or others of said
guarantors. Lender may compound with any one or more of said
guarantors for such sums or sum as it may see fit and/or release such of said
guarantors from all further liability to Lender for such indebtedness without
impairing the right of Lender to demand and collect the balance of such
indebtedness from the other or others of said guarantors not so compounded with
or released. However, said guarantors agree that such compounding and
release shall in no way impair the their rights as among
themselves.
(b) Except
as otherwise provided herein, the rights of Lender are cumulative and shall not
be exhausted by its exercise of any of its rights under this Guaranty or
otherwise against Guarantor or by any number of successive actions, until and
unless all Recourse Liabilities have been paid and each of the obligations of
Guarantor under this Guaranty have been performed.
(c) Intentionally
Omitted.
(d) Any
notice or communication required or permitted under this Guaranty shall be given
in writing, sent by (i) personal delivery, or (ii) expedited delivery
service with proof of delivery, or (iii) United States mail, postage
prepaid, registered or certified mail, sent to the intended addressee at the
address shown below, or to such other address or to the attention of such other
person(s) as hereafter shall be designated in writing by the applicable party
sent in accordance herewith. Any such notice or communication shall
be deemed to have been given and received either at the time of personal
delivery or, in the case of delivery service or mail, as of the date of first
attempted delivery on a business day at the applicable address and in the manner
provided herein.
(e) This
Guaranty shall be deemed to have been made under and shall be governed in all
respects by the laws of the Property State.
(f) This
Guaranty may be executed in any number of counterparts with the same effect as
if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
(g) This
Guaranty may only be modified, waived, altered or amended by a written
instrument or instruments executed by the party against which enforcement of
said action is asserted. Any alleged modification, waiver, alteration
or amendment which is not so documented shall not be effective as to any
party.
(h) The
books and records of Lender showing the accounts between Lender and Borrower
shall be admissible in any action or proceeding arising from this Guaranty as
prima facie
evidence
for any claim whatsoever, absent manifest error.
(i) Guarantor
waives and renounces any and all homestead or exemption rights Guarantor may
have under the United States Constitution, the laws of the Property State, or
the laws of any state as against Guarantor, and Guarantor transfers, conveys and
assigns to Lender a sufficient amount of such homestead or exemption as may be
allowed, including such homestead or exemption as may be set apart in
bankruptcy, to pay and perform the obligations of Guarantor arising under this
Guaranty. Guarantor hereby directs any trustee in bankruptcy having
possession of such homestead or exemption to deliver to Lender a sufficient
amount of property or money set apart as exempt to pay and perform such
Guarantor obligations.
(j) The
terms, provisions, covenants and conditions of this Guaranty shall be binding
upon Guarantor, its heirs, devisees, representatives, successors and assigns,
and shall inure to the benefit of Lender and Lender’s transferees, credit
participants, successors, assigns and/or endorsees.
(k) Within
this Guaranty, the words of any gender shall be held and construed to include
any other gender, and the words in the singular number shall be held and
construed to include the plural and the words in the plural number shall be held
and construed to include the singular, unless the context otherwise
requires.
(l) A
determination that any provision of this Guaranty is unenforceable or invalid
shall not affect the enforceability or validity of any other provision, and any
determination that the application of any provision of this Guaranty to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances. Accordingly, the provisions of this
Guaranty are declared to be severable.
THIS GUARANTY is executed as of the
date and year first above written.
|
|
GUARANTOR:
MACK-CALI REALTY, L.P.
,
a Delaware limited partnership
By:MACK-CALI
REALTY CORPORATION, a Maryland corporation, General Partner
By: _____________________
Name: Barry
Lefkowitz
Title: Executive
Vice President and Chief Financial Officer
MACK-CALI REALTY
CORPORATION
,
a Maryland
corporation
By: _________________________
Name: Barry
Lefkowitz
Title: Executive Vice
President and Chief Financial Officer
|
The
address of Guarantor is:
|
|
Mack-Cali
Realty Corporation and Mack-Cali Realty,
L.P.
|
|
|
c/o Mack-Cali
Realty Corporation
|
|
|
Attn: Mitchell E. Hersh, President and Chief Executive
Officer
|
With a copy to:
|
|
Mack-Cali
Realty Corporation
|
|
|
Attention: Roger
W. Thomas
|
The
address of Lender is:
|
|
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA AND VPCM,
LLC
|
|
|
c/o Prudential
Asset Resources, Inc.
|
|
|
2100 Ross
Avenue, Suite 2500
|
|
|
Attention: Asset
Management Department; Reference Loan No. _______ and
__________
|
With a copy to:
|
|
THE
PRUDENTIAL INSURANCE COMPANY OF
AMERICA
|
|
|
c/o Prudential
Asset Resources, Inc.
|
|
|
2100 Ross
Avenue, Suite 2500
|
|
|
Attention: Legal
Department; Reference Loan No. ________ and
__________
|
Exhibit
10.7
Loan
Nos. __________ and __________ (excluding Loan No. _________ and
______)
Dated as
of January 15, 2010
AMENDED AND RESTATED
IRREVOCABLE CROSS COLLATERAL GUARANTY OF PAYMENT AND
PERFORMANCE
THIS AMENDED AND RESTATED IRREVOCABLE
CROSS COLLATERAL GUARANTY OF PAYMENT AND PERFORMANCE
(hereinafter called
“
Guaranty
”) is made by
____________
(“
Guarantor
”) in favor of
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
, a New Jersey corporation (“Prudential”), and
VPCM, LLC
, a Virginia limited
liability company (“VPCM”) (collectively, “
Lender
”, which shall also mean
successors and assigns who become holders of the Note).
W I T N E S S E T
H
:
WHEREAS,
Guarantor is the
maker of, or has assumed the obligations of the maker of, that certain Amended
and Restated Promissory Note dated as of November 12, 2004 in the original
principal amount of _____________ ($_________) and payable to the order of
Lender (the “Existing Guarantor Note”; the loan evidenced by the Existing
Guarantor Note is herein referred to as the “Existing Guarantor
Loan”);
WHEREAS,
the Existing
Guarantor Loan was made pursuant to that certain Amended and Restated Loan
Agreement dated as of November 12, 2004 (the “Existing Loan Agreement”) by
and among, inter alia, Lender and Guarantor relating to seven (7)
cross-collateralized and cross-defaulted loans in the aggregate principal amount
of $150,000,000.00 (the “Existing Loans”); and
WHEREAS,
Guarantor, Mack-Cali
Realty Corporation, a Maryland corporation (the “REIT Corporation”), and
Mack-Cali Realty, L.P., a Delaware limited partnership (the
“Operating Partnership”), and the Borrowers listed on
Exhibit A
attached hereto and made a part hereof (hereinafter, excluding Guarantor,
referred to collectively as “Borrowers”) have, by that certain First Mortgage
Loan Application Nos. __________, dated January 13, 2010 (the
“Application”), applied for the Loan in the aggregate loan amount of
$150,000,000.00 (the “Aggregate Loan Amount”); and
WHEREAS,
Guarantor, Borrowers,
the REIT Corporation, the Operating Partnership, and Lender have agreed,
pursuant to that certain Amended and Restated Loan Agreement dated of even date
herewith (the “Loan Agreement”) by and among Guarantor, Borrowers, the REIT
Corporation, the Operating Partnership and Lender relating to seven (7)
cross-collateralized and cross-defaulted loans in the aggregate principal amount
of $150,000,000.00 (hereinafter, excluding the loan made to Guarantor, referred
to collectively as the “Loan”), to refinance the seven (7) cross-collateralized
and cross-defaulted loans referenced in the Existing Loan Agreement, to amend
and restate the terms thereof, and to re-allocate the loan amounts among the
seven (7) Existing Loans representing additional advances to certain borrowers
under the Loan Agreement and corresponding reductions of loan amounts to other
borrowers under the Loan Agreement; and
WHEREAS,
the Loan is, pursuant
to the terms of the Application, divided into seven (7) individual loans (the
“Individual Loans”), to be made by Lender in the amounts set forth on
Exhibit B
attached hereto and made a part hereof; one of those Individual Loans is a loan
of $_________ (the “_________ Loan”) to Guarantor secured by real property
located in Bergen County, New Jersey, known as _________________ (the “_________
Property”) and which Loan is known as Loan No. ________ and _______, and
which Loan is evidenced by an Amended, Restated and Consolidated Promissory Note
in favor of Prudential in the original principal amount of _____________
($_________) and an Amended, Restated and Consolidated Promissory Note in favor
of VPCM in the original principal amount of _____________ ($_________);
and
WHEREAS,
Lender has agreed to
make the Loans to Guarantor and the other Borrowers pursuant to the terms and
conditions set forth in the Loan Agreement; and
WHEREAS,
Guarantor and each
other Borrower have executed and delivered to the Lender Amended, Restated and
Consolidated Promissory Notes (the “New Notes”) in the aggregate principal
amount of $150,000,000.00 as evidence of their indebtedness to
Lender; and one or more of the New Notes is executed by Guarantor in
its capacity as a Borrower and as an owner of its respective Properties as
listed on
Exhibit A
attached hereto, which New Notes are executed in order to evidence the portion
of the Loan that is allocated to such Individual Loans for such Properties owned
by Guarantor; and
WHEREAS,
to secure payment of
the New Notes and the performance of each Borrower’s obligations under the Loan
Agreement, each Borrower has executed and delivered to Lender the Security
Documents (as defined in the Loan Agreement) conveying to or for the benefit of
Lender, as mortgagees or beneficiaries, as applicable, certain land and
improvements thereon, as well as the other Loan Documents (as such term is
defined in the Loan Agreement; any term not otherwise defined herein
shall have the meaning assigned to such term in the Loan Agreement);
and
WHEREAS,
the _________________
Loan is one of the Individual Loans, and is evidenced and secured by,
inter alia
, the
following:
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|
(i)
|
Guarantor’s
Amended, Restated and Consolidated Promissory Note of even date herewith
in favor of Prudential in the original principal amount of _____________
($_________) and Guarantor’s Amended, Restated and Consolidated Promissory
Note in favor of VPCM in the original principal amount of _____________
($_________) (collectively, the “_________________ Note”);
and
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|
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(ii)
|
That
certain Amended, Restated and Consolidated Mortgage and Security Agreement
of even date herewith between Borrower and Lender, to be recorded in the
real estate records of Bergen County, New Jersey (the “_________________
Mortgage”), encumbering the _________________ Property and securing the
_________________ Note; and
|
WHEREAS,
notwithstanding the
division of the Loan into seven (7) Individual Loans, certain terms, conditions
and provisions of the Application with respect to the Individual Loans relate to
all of the Individual Loans in the aggregate, and the relationship of all of the
Individual Loans to each other, including, but not limited to, provisions
relating to cross-default between the Loans, cross-collateral issues relating to
the Loans, and provisions relating to release of or substitution of collateral
(the “Master Loan Terms”); and
WHEREAS,
the REIT Corporation
and the Operating Partnership own, directly or indirectly through qualified REIT
subsidiaries, Guarantor and all of the Borrowers; and
WHEREAS,
the entire Loan in
the aggregate principal amount of $150,000,000.00 is to be secured by the
Properties listed on
Exhibit A
attached hereto; notwithstanding that the Loan is divided into seven (7)
Individual Loans, Guarantor acknowledges that Lender would not make any of the
Individual Loans, or less than all of the Individual Loans, pursuant to the
provisions in the Application relating to the Individual Loans, without making
all seven (7) Individual Loans in compliance with the terms of the Application
and except in accordance with all the provisions set forth in this Guaranty;
and
WHEREAS,
Guarantor
acknowledges that the provisions set forth in this Guaranty and otherwise set
forth in the Loan Documents relating to cross-default, cross-collateralization
and the other Master Loan Terms have resulted in more favorable economic terms
for the Individual Loan to Guarantor, and that Guarantor would be unable to
receive financing in the amount, or at the rate, or otherwise under more
favorable terms, than those set forth herein and, therefore, there exists direct
and valuable consideration for Guarantor’s consent and agreement to the Master
Loan Terms; and
WHEREAS,
one of the Master
Loan Terms involves the Cross-Collateralization of each of the Properties,
whereby the Properties of each Borrower will secure the entire Loan by virtue of
securing such Borrower’s New Note evidencing such Borrower’s Individual Loan and
such Borrower’s Cross-Collateral Guaranty (as defined in the Loan Agreement)
evidencing such Borrower’s obligation to repay the other Individual Loans;
and
WHEREAS,
the _________________
Property owned by Guarantor will secure the entire Loan by virtue of securing
the _________________ Note evidencing Guarantor’s Individual Loan and
Guarantor’s Cross-Collateral Guaranty evidencing Guarantor’s obligation to repay
the other Individual Loans; and
WHEREAS,
Guarantor will derive
financial benefit from the Individual Loans to the other Borrowers evidenced and
secured by the New Notes, Security Instruments, Loan Agreement and other Loan
Documents; the execution and delivery of this Guaranty by Guarantor is a
condition precedent to the advancement by Lender of the Loan and each of the
Individual Loans in order to evidence the obligation of Guarantor for repayment
of the Obligations other than the _________________ Loan entered into with
respect to the _________________ Property, and, with respect to such New Notes
and Individual Loans to such Borrowers, this Guaranty is intended to evidence
the separate obligations of Guarantor under the Loan Agreement as a guarantor of
a portion of the Loan as and to the extent described herein and subject to the
Limited Recourse Liability provisions incorporated by reference herein from the
_________________ Note; and
WHEREAS,
in connection with
the Existing Loans other than the Existing Guarantor Loan Guarantor delivered to
Lender that certain Amended and Restated Irrevocable Cross-Collateral Guaranty
of Payment and Performance dated as of April 30, 1998 (the “Existing
Guaranty”); and
WHEREAS,
all of the terms,
covenants and provisions of the Existing Guaranty are hereby modified, amended
and restated so that henceforth such terms, covenants and provisions shall be
those set forth in this Guaranty, and the Existing Guaranty, as so modified,
amended and restated in its entirety, is hereby ratified and confirmed in all
respects by Guarantor.
NOW, THEREFORE,
in
consideration of the foregoing recitals, which are incorporated into the
operative provisions of this Guaranty by this reference, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, Guarantor hereby covenants and agrees with Lender as
follows:
FOR VALUE RECEIVED
, the
receipt and sufficiency of which is hereby acknowledged, and in accordance with
the terms provided below, Guarantor absolutely and unconditionally guarantees
and agrees to pay to Lender at the address designated in the Notes (defined
below) for payment thereof or as such address may be changed as provided in the
Notes or the Instrument, all Obligations (defined below) of Borrowers, under the
Notes and other Documents (defined below), and absolutely and unconditionally
covenants and agrees with Lender pursuant to the terms of this Guaranty,
subject, however, to the provisions of Section 3 hereof, as
follows:
1. As
used in this Guaranty, the term (i) “
Documents
” shall have the same
meaning as set forth in the Instruments (defined below); (ii) “
Obligations
” shall have the
same meaning as set forth in the Instruments; (iii) “
Notes
” shall refer to the New
Notes, but excluding the _________________ Note, as the same may be modified,
amended, renewed, extended, and/or substituted, which Notes are secured by the
Instrument (as hereinafter defined); (iv) “
Instruments
” shall refer to
each Amended, Restated and Consolidated Mortgages and Security Agreements of
even date herewith, from Borrowers to or for the benefit of Lender, and recorded
or to be recorded in the public records of Bergen County, New Jersey, which
secure the Notes; (v) “
Cross Collateral Property
”
shall have the same meaning as set forth in the Instruments; (vi) “
Loans
” shall mean the Loan
pursuant to the Loan Agreement, but excluding the Loan evidenced by the
_________________ Note, and (vii) “
Costs
” shall have the same
meaning as set forth in the Instrument;. Capitalized terms used
herein and not defined herein shall have the meaning ascribed to such terms in
the Instruments.
2. Subject
to the provisions of Section 3 hereof, in the event Borrowers fail to pay
the Obligations, Guarantor shall upon written demand (not later than five (5)
days after written demand) of Lender promptly and with due diligence pay to and
for the benefit of Lender all of the Obligations, and, in addition, Guarantor
further agrees to pay any and all Costs incurred or expended by Lender in
collecting any of the Obligations or in enforcing any right granted
hereunder. This Guaranty is the “Note” referred to and secured by the
Amended, Restated and Consolidated Second Priority Mortgage and Security
Agreement (Subordinate Mortgage to Secure Cross Collateral Guaranty) of even
date herewith between Borrower and Lender, to be recorded in the real estate
records of Bergen County, New Jersey and is secured by the _________________
Property.
3. Guarantor’s
liability under this Guaranty is expressly not subject to, or limited by, any
limitations on Borrowers’ liability set forth in the Notes, and Guarantor agrees
and acknowledges that Lender is relying upon this Guaranty in making the Loans
to Borrowers. Notwithstanding the foregoing, the provisions of
Paragraph 8 and Paragraph 9 of the _________________ Note are
incorporated into this Guaranty as if such provisions were set forth in their
entirety in this Guaranty. Guarantor agrees that any exculpatory
language (the “Other Exculpatory Language”) contained in the Notes (other than
the _________________ Note) which Other Exculpatory Language limits any
liability of Guarantor with respect to the Individual Loans related to such
Properties, shall in no event apply to limit Lender’s recourse under this
Guaranty, and the Other Exculpatory Language will not prevent Lender from
proceeding against Guarantor to enforce this Guaranty in the manner set forth in
the following sentences. Notwithstanding the foregoing provisions of
this Section 3 with respect to the Other Exculpatory Language applicable to
Guarantor’s obligations and liabilities under Notes and Security Instruments
(other than those with respect to the _________________ Property), Guarantor’s
liability under this Guaranty shall be limited to Guarantor’s interest in the
_________________ Property and the other Collateral (as defined in the
_________________ Mortgage) encumbered or conveyed thereby in the Loan Documents
with respect to the _________________ Property. Guarantor’s limited
recourse liability under this Guaranty shall be subject to the same limitations
and other provisions as are set forth in Paragraph 8 and Paragraph 9
of the _________________ Note, all of which terms and provisions are
incorporated herein by this reference, and, except to the extent provided
therein, Lender shall not enforce any deficiency judgment or personal money
judgment against Guarantor or any of its respective constituent partners, or any
of their respective officers, directors, agents, or shareholders with respect to
the obligations arising under and evidenced by this Guaranty.
4. In
the event that Lender elects to foreclose or to accept a deed-in-lieu of
foreclosure under the Instruments, Guarantor hereby acknowledges and agrees that
Guarantor’s recourse liability under this Guaranty as determined above shall be
calculated after deduction from the outstanding Obligations (including, but not
limited to, all principal, accrued interest, Prepayment Premium [as defined in
the Notes], advances and other charges) of (i) the amount of money bid by
or received by Lender at a foreclosure sale, or (ii) the value of the Cross
Collateral Property or any other property received by Lender as consideration
for acceptance of a deed-in-lieu of foreclosure.
5. In
the event that Lender accepts a deed-in-lieu of foreclosure, the value of the
Cross Collateral Property and any other property received by Lender shall be
conclusively determined by an independent MAI appraiser, selected by Lender in
its sole discretion, having not less than five (5) years’ experience in
appraising commercial real estate in the area where the Cross Collateral
Property is located. The fees and costs of said MAI appraiser shall
be paid by Guarantor.
6. Guarantor’s
recourse liability under this Guaranty shall continue with respect to any and
all Obligations, until Lender has been paid the full amount of the
Obligations
from
any person or entity at the time of foreclosure or following an Event of
Default; provided, however, that Guarantor’s recourse liability under this
Guaranty shall be in addition to, and not in lieu of, any liability or
obligations of Guarantor under any other document or other instrument delivered
by Guarantor in connection with the Loans.
7. Guarantor
also acknowledges and agrees that Lender shall have the right to seek collection
of the recourse portion of the Loans under this Guaranty from Guarantor without
commencement of any foreclosure proceedings, subject, however, to the terms of
Section 3 hereof.
8. Guarantor
expressly waives presentment for payment, demand, notice of demand and of
dishonor and nonpayment of the Obligations or any part thereof, notice of
intention to accelerate the maturity of the Obligations or any part thereof,
notice of disposition of collateral, notice of acceleration of the maturity of
the Obligations or any part thereof, protest and notice of protest, diligence in
collecting, and the bringing of suit against any other
party. Guarantor agrees that Lender shall be under no obligation to:
(i) notify Guarantor of its acceptance of this Guaranty or of any advances
made or credit extended on the faith of this Guaranty; (ii) notify
Guarantor of Borrowers’ failure to make payments due under the Notes as it
matures or the failure of Borrowers to pay any of the Obligations as they mature
or any default in performance of any obligations required by the Notes, the
Instruments or any other Document; (iii) use diligence in preserving the
liability of any person with respect to the Obligations, or with respect to the
Notes, the Instruments or any other Document; (iv) use diligence in
collecting payments or demanding performance required by the terms of the Notes,
the Instruments or any other Document; or (v) bring suit against, or take
any other action against, any party to enforce collection of the Notes, the
Instruments or any other Document.
9. Guarantor
waives all legal defenses (at law or in equity) given or available to sureties
or guarantors other than the actual payment in full of all Obligations, and
waives all legal defenses (at law or in equity) based upon the validity,
legality or enforceability of the Notes, the Instruments or any other Document
(including, without limitation, any claim that the Notes, the Instruments or any
other Document is or was in any way usurious), or otherwise with respect to the
Obligations. In accordance with the terms of this Guaranty, Guarantor
agrees and acknowledges that it shall be primarily liable for payment of the
Obligations (subject only to the limitations set forth above) in the event of
default or foreclosure.
10. Guarantor
acknowledges and agrees that from time to time, at Lender’s discretion, with or
without valuable consideration, without authorization from or notice to
Guarantor, and without impairing, modifying, releasing, limiting or otherwise
affecting Guarantor’s liability under this Guaranty, Lender may: (i) alter,
compromise, accelerate, renew, extend or change the time or manner for the
payment of any or all of the Obligations
due under the Notes, the
Instruments or any other Document; (ii) increase or reduce the rate of
interest with respect to the Notes or Loans; (iii) take and surrender
security, exchange security by way of substitution, or in any way Lender deems
necessary take, accept, withdraw, subordinate, alter, amend, modify or eliminate
security; (iv) add or release or discharge endorsers, guarantors or other
obligors; (v) make changes of any kind whatsoever in the terms of the
Notes, the Instruments or any other Document; (vi) make changes of any kind
whatsoever in the manner Lender does business with Borrowers; (vii) settle
or compromise with Borrowers or any other person(s) liable on the Notes, the
Instruments or any other Document on such terms as Lender determines;
(viii) apply all moneys received from Borrowers or others, or from any
security held (whether or not held under a mortgage, deed of trust, deed to
secure debt or other instrument), in such manner upon the Notes or upon any
other obligation arising under the Instruments or any other Document (whether
then due or not) as Lender determines to be in its best interest, and without in
any way being required to marshal securities or assets or to apply all or any
part of such moneys upon any particular part of the Notes, the Instruments or
any other Document, except to the extent as may be expressly provided
therein.
11. Guarantor
agrees that Lender is not required to retain, hold, protect, exercise due care
with respect to, perfect security interests in, or otherwise assure or safeguard
any security for the Notes or the Loans. Guarantor agrees and
acknowledges that Lender’s failure to do any of the foregoing and Lender’s
failure to exercise any other right or remedy available to Lender shall in no
way affect or alter any of Guarantor’s obligations under this Guaranty or any
security furnished by Guarantor, or give Guarantor any recourse against
Lender.
12. Guarantor
agrees that its liability under this Guaranty shall not be modified, changed,
released, limited or impaired in any manner whatsoever on account of any or all
of the following: (i) the incapacity, death, disability, dissolution or
termination of Guarantor, Borrowers, Lender or any other person or entity;
(ii) the failure by Lender to file or enforce a claim against the estate
(either in administration, bankruptcy or other proceeding) of Borrowers or any
other person or entity; (iii) the inability of Lender, Guarantor or any
other person or entity to recover from Borrowers or any other party due to the
expiration of any statute of limitations or due to any other cause whatsoever;
(iv) the claim or assertion (whether or not successful) by Borrowers or any
other person or entity of any available defenses, set-off rights or
counterclaims (other than payment in full of the Obligations) during any
judicial, arbitration, or mediation proceeding; (v) the transfer(s) of any
portion of the Cross Collateral Property encumbered by the Instruments or of any
other secured collateral by other instrument securing payment of the
Obligations; (vi) any modifications, extensions, amendments, consents,
releases or waivers with respect to the Notes, the Instruments or any other
Document, including, but not limited to, any other instrument that may now or
hereafter secure the payment of the Obligations or this Guaranty;
(vii) Lender’s failure to give any notice to Guarantor of any default under
the Notes, the Instruments or any other Document, including, but not limited to,
any other instrument securing the payment of the Obligations or this Guaranty;
(viii) Guarantor is or becomes liable for any indebtedness owed by
Borrowers to Lender other than that which is secured by this Guaranty; or
(ix) any impairment, modification, change, release or limitation of the
liability of, or stay of actions or lien enforcement proceedings against,
Borrowers, its property, or its estate in bankruptcy resulting from the
operation of any present or future provision of 11 U.S.C. §101
et. seq.
or any other present
or future federal or state insolvency, bankruptcy or similar law (all of the
foregoing hereinafter collectively called “
Applicable Bankruptcy Law
”) or
from the decision of any court.
13. Guarantor
agrees and acknowledges that Lender shall not be required to (i) pursue any
other remedies before invoking the benefits of the guaranties contained in this
Guaranty, or (ii) make demand upon or institute suit or otherwise pursue or
exhaust its remedies against Borrowers or any surety other than Guarantor or to
proceed against any security now or hereafter existing for the payment of any of
the Obligations. Guarantor also acknowledges that Lender may maintain
an action on this Guaranty without joining Borrowers in such action and without
bringing a separate action against Borrowers.
14. If
the Notes, the Instruments or any other Document cannot be enforced against
Borrowers for any reason whatsoever (including but not limited to the legal
defenses of
ultra
vires
, lack of authority, illegality,
force majeure
, act of God,
usury or impossibility), such unenforceability shall not affect Guarantor’s
liability under this Guaranty. Guarantor agrees that it shall be
liable to the extent provided in this Guaranty notwithstanding the fact that
Borrowers may be held not to be liable for such Obligations
or not liable to the
same extent as Guarantor’s liability.
15. Guarantor
agrees that in the event that Borrowers do not or otherwise are unable to pay
the Obligations for any reason (including, without limitation, liquidation,
dissolution, receivership, conservatorship, insolvency, bankruptcy, assignment
for the benefit of creditors, sale of all or substantially all assets,
reorganization, arrangement, composition, or readjustment of, or other similar
proceedings affecting the status, composition, identity, existence, assets or
obligations of Borrowers, or the disaffirmance or termination of any of the
Obligations in or as a result of any such proceeding), Guarantor shall pay the
Obligations and such occurrence shall in no way affect Guarantor’s obligations
under this Guaranty.
16. Should
the status, structure or composition of Borrowers or any of them change,
Guarantor agrees that this Guaranty shall continue and shall also cover the
Obligations of Borrowers under the new status, structure or composition of
Borrowers, or of any successor. This Guaranty shall remain in full
force and effect notwithstanding any transfer of the Cross Collateral Property
encumbered by the Instruments.
17. In
the event any payment by Borrowers to Lender is held to constitute a preference
under any Applicable Bankruptcy Law, or if for any other reason Lender is
required to refund or does refund such payment or pay such amount to any other
party, Guarantor acknowledges that such payment by Borrowers to Lender shall not
constitute a release of Guarantor from any liability under this Guaranty, but
Guarantor agrees to pay such amount to Lender upon demand and this Guaranty
shall continue to be effective or shall be reinstated, as the case may be, to
the extent of any such payment or payments.
18. Guarantor
agrees that it shall not have (i) the right to the benefit of, or to direct
the application of, any security held by Lender (including the Cross Collateral
Property covered, conveyed or encumbered by the Instruments and any other
instrument securing the payment of the Obligations), (ii) any right to
enforce any remedy which Lender now has or hereafter may have against Borrowers,
or (iii) any right to participate in any security now or hereafter held by
Lender.
19. Guarantor
also agrees that it shall not have (i) any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation or
other right or remedy of Guarantor against Borrowers or against any security
resulting from the exercise or election of any remedies by Lender (including the
exercise of the power of sale under the Instruments), or (ii) any defense
arising by reason of any disability or other defense of Borrowers or by reason
of the cessation, from any cause (other than as a result of payment in full of
the Obligations), of Borrowers’ liability under the Notes, the Instruments or
any other Document.
20. Guarantor
agrees that any payment it makes of any amount pursuant to this Guaranty shall
not in any way entitle Guarantor to any right, title or interest (whether by way
of subrogation or otherwise) in and to the Notes, the Instruments or any other
Document, or any proceeds attributable to the Notes, the Instruments or any
other Document, unless and until the full amount of the Obligations owing to
Lender has been fully paid. At such time as the full amount of the
Obligations owing to Lender has been fully paid, Guarantor shall be subrogated
as to any payments made by it to Lender’s rights against Borrowers and/or any
endorsers, sureties or other guarantors. For the purposes of the
preceding sentence only, the full amount of the Obligations shall not be deemed
to have been paid in full by foreclosure of the Instruments or by acceptance of
a deed-in-lieu of foreclosure, and Guarantor hereby waives and disclaims any
interest which it might have in the Cross Collateral Property encumbered by the
Instruments or other collateral security for the Obligations, by subrogation or
otherwise, following such foreclosure or Lender’s acceptance of a deed-in-lieu
of foreclosure.
21. Guarantor
expressly subordinates its rights to payment of any indebtedness owing from
Borrowers to Guarantor(including, but not limited to, property management and
construction management fees and leasing commissions), whether now existing or
arising at any time in the future, to the right of Lender to first receive or
require payment of the Obligations in full (and including interest accruing on
the Notes after any petition under Applicable Bankruptcy Law, which
post-petition interest Guarantor agrees shall remain a claim that is prior and
superior to any claim of Guarantor notwithstanding any contrary practice, custom
or ruling in proceedings under such Applicable Bankruptcy
Law). Guarantor further agrees, upon the occurrence of an Event of
Default, not to accept any payment or satisfaction of any kind of indebtedness
of Borrowers to Guarantor or any security for such indebtedness without Lender’s
prior written consent. If Guarantor should receive any such payment,
satisfaction or security for any indebtedness owed by Borrowers to Guarantor,
Guarantor agrees to deliver the same without delay to Lender in the form
received, endorsed or assigned for application on account of, or as security
for, the Recourse Liability; until such payment, satisfaction or security is
delivered, Guarantor agrees to hold the same in trust for Lender.
22. Under
no circumstances shall the aggregate amount paid or agreed to be paid under this
Guaranty exceed the highest lawful rate permitted under applicable usury law
(the “
Maximum Rate
”) and
the payment obligations of Guarantor hereunder are hereby limited
accordingly. If under any circumstances, whether by reason of
advancement or acceleration of the unpaid principal balance of the Notes or
otherwise, the aggregate amounts paid hereunder shall include amounts which by
law are deemed interest and which could exceed the Maximum Rate, Guarantor
stipulates that payment and collection of such excess amounts shall have been
and will be deemed to have been the result of a mistake on the part of both
Guarantor and Lender, and Lender shall promptly credit such excess (only to the
extent such interest payments are in excess of the Maximum Rate) against the
unpaid principal balance of the Notes, and any portion of such excess payments
not capable of being so credited shall be refunded to Guarantor. The
term “
applicable law
” as
used in this paragraph shall mean the laws of the Property State (as such term
is defined in the Instruments) or the laws of the United States, whichever laws
allow the greater rate of interest, as such laws now exist or may be changed or
amended or come into effect in the future.
23. Guarantor
hereby represents, warrants and covenants to and with Lender as follows:
(i) the making of the Loans by Lender to Borrowers are and will be of
direct interest, benefit and advantage to Guarantor; (ii) Guarantor is
solvent, is not bankrupt and has no outstanding liens, garnishments,
bankruptcies or court actions which could render Guarantor insolvent or
bankrupt; (iii) there has not been filed by or against Guarantor a petition
in bankruptcy or a petition or answer seeking an assignment for the benefit of
creditors, the appointment of a receiver, trustee, custodian or liquidator with
respect to Guarantor or any substantial portion of Guarantor’s property,
reorganization, arrangement, rearrangement, composition, extension, liquidation
or dissolution or similar relief under Applicable Bankruptcy Law; (iv) all
reports, financial statements and other financial and other data which have been
or may hereafter be furnished by Guarantor to Lender in connection with this
Guaranty are or shall be true and correct in all material respects and do not
and will not omit to state any fact or circumstance necessary to make the
statements contained therein not misleading and do or shall fairly represent the
financial condition of Guarantor as of the dates and the results of Guarantor’s
operations for the periods for which the same are furnished, and no material
adverse change has occurred since the dates of such reports, statements and
other data in the financial condition of Guarantor; (v) the execution,
delivery and performance of this Guaranty do not contravene, result in the
breach of or constitute a default under any mortgage, deed of trust, lease,
promissory note, loan agreement or other contract or agreement to which
Guarantor is a party or by which Guarantor or any of its properties may be bound
or affected and do not violate or contravene any law, order, decree, rule or
regulation to which Guarantor is subject; (vi) there are no judicial or
administrative actions, suits or proceedings pending or, to the best of
Guarantor’s knowledge, threatened against or affecting Guarantor which would
have a material adverse effect on either the Property or Borrower’s ability to
perform its obligations, or involving the validity, enforceability or priority
of this Guaranty; and (vii) this Guaranty constitutes the legal, valid and
binding obligation of Guarantor enforceable in accordance with its
terms.
24. Guarantor
will furnish to Lender the financial statements and other information as to
Guarantor as are described in Section 3.15 of the Instrument, on or before the
deadlines set forth therein. Guarantor will provide to Lender such other
financial information and statements concerning Guarantor's financial status as
Lender may request from time to time, all of which shall be in form and
substance acceptable to Lender. Guarantor shall be in default hereunder if there
is any falsity in any material respect or any material omission in any
representation or statement made by Guarantor to Lender or in any information
furnished Lender, by or on behalf of Borrower or Guarantor, in connection with
the Loan and/or any of the Obligations, as determined by Lender in its sole and
absolute discretion.
25. Guarantor
further agrees to the following:
(a) Where
two or more persons or entities have executed this Guaranty, unless the context
clearly indicates otherwise, all references herein to “
Guarantor
” shall mean the
guarantors hereunder or either or any of them. All of the obligations
and liability of said guarantors hereunder shall be joint and
several. Suit may be brought against said guarantors, jointly and
severally, or against any one or more of them, or less than all of them, without
impairing the rights of Lender against the other or others of said
guarantors. Lender may compound with any one or more of said
guarantors for such sums or sum as it may see fit and/or release such of said
guarantors from all further liability to Lender for such indebtedness without
impairing the right of Lender to demand and collect the balance of such
indebtedness from the other or others of said guarantors not so compounded with
or released. However, said guarantors agree that such compounding and
release shall in no way impair the their rights as among
themselves.
(b) Except
as otherwise provided herein, the rights of Lender are cumulative and shall not
be exhausted by its exercise of any of its rights under this Guaranty or
otherwise against Guarantor or by any number of successive actions, until and
unless all Obligations have been paid and each of the obligations of Guarantor
under this Guaranty have been performed.
(c) Intentionally
Omitted.
(d) Any
notice or communication required or permitted under this Guaranty shall be given
in writing, sent by (i) personal delivery, or (ii) expedited delivery
service with proof of delivery, or (iii) United States mail, postage
prepaid, registered or certified mail, sent to the intended addressee at the
address shown below, or to such other address or to the attention of such other
person(s) as hereafter shall be designated in writing by the applicable party
sent in accordance herewith. Any such notice or communication shall
be deemed to have been given and received either at the time of personal
delivery or, in the case of delivery service or mail, as of the date of first
attempted delivery on a business day at the applicable address and in the manner
provided herein.
(e) This
Guaranty shall be deemed to have been made under and shall be governed in all
respects by the laws of the Property State.
(f) This
Guaranty may be executed in any number of counterparts with the same effect as
if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
(g) This
Guaranty may only be modified, waived, altered or amended by a written
instrument or instruments executed by the party against which enforcement of
said action is asserted. Any alleged modification, waiver, alteration
or amendment which is not so documented shall not be effective as to any
party.
(h) The
books and records of Lender showing the accounts between Lender and Borrowers
shall be admissible in any action or proceeding arising from this Guaranty as
prima facie evidence for any claim whatsoever, absent manifest
error.
(i) Guarantor
waives and renounces any and all homestead or exemption rights Guarantor may
have under the United States Constitution, the laws of the Property State, or
the laws of any state as against Guarantor, and Guarantor transfers, conveys and
assigns to Lender a sufficient amount of such homestead or exemption as may be
allowed, including such homestead or exemption as may be set apart in
bankruptcy, to pay and perform the obligations of Guarantor arising under this
Guaranty. Guarantor hereby directs any trustee in bankruptcy having
possession of such homestead or exemption to deliver to Lender a sufficient
amount of property or money set apart as exempt to pay and perform such
Guarantor obligations.
(j) The
terms, provisions, covenants and conditions of this Guaranty shall be binding
upon Guarantor, its heirs, devisees, representatives, successors and assigns,
and shall inure to the benefit of Lender and Lender’s transferees, credit
participants, successors, assigns and/or endorsees.
(k) Within
this Guaranty, the words of any gender shall be held and construed to include
any other gender, and the words in the singular number shall be held and
construed to include the plural and the words in the plural number shall be held
and construed to include the singular, unless the context otherwise
requires.
(l) A
determination that any provision of this Guaranty is unenforceable or invalid
shall not affect the enforceability or validity of any other provision, and any
determination that the application of any provision of this Guaranty to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances. Accordingly, the provisions of this
Guaranty are declared to be severable.
THIS GUARANTY is executed as of the
date and year first above written.
|
|
GUARANTOR:
________________________________
By:
________________________________
Name: Barry
Lefkowitz
Title: Executive
Vice President and Chief Financial Officer
|
The
address of Guarantor is:
|
|
c/o Mack-Cali
Realty Corporation
|
|
|
Attn:
Mitchell E. Hersh, President and Chief Executive
Officer
|
With a copy to:
|
|
Mack-Cali
Realty Corporation
|
|
|
Attention: Roger
W. Thomas
|
The
address of Lender is:
|
|
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA AND VPCM,
LLC
|
|
|
c/o Prudential
Asset Resources, Inc.
|
|
|
2100 Ross
Avenue, Suite 2500
|
|
|
Attention: Asset
Management Department; Reference Loan No. __________ and
________
|
With a copy to:
|
|
THE
PRUDENTIAL INSURANCE COMPANY OF
AMERICA
|
|
|
c/o Prudential
Asset Resources, Inc.
|
|
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2100 Ross
Avenue, Suite 2500
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Attention: Legal
Department; Reference Loan No. _______
and ________
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Exhibit
99.1
M A C K - C A L I R E A L T Y C O R P O R A T I O N
NEWS
RELEASE
For
Immediate Release
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Contacts:
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Barry
Lefkowitz
Executive Vice President
and Chief Financial Officer
(732) 590-1000
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Ilene
Jablonski
Senior Director, Marketing
and Public Relations
(732) 590-1000
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MACK-CALI
REFINANCES $150 MILLION SECURED LOAN
Edison,
New Jersey—January 19, 2010— Mack-Cali Realty Corporation (NYSE: CLI) today
announced it has refinanced its $150 million secured loan with The Prudential
Insurance Company of America. The new loan also includes VPCM,
LLC, a wholly-owned subsidiary of the Virginia Retirement System, as
co-lender.
The loan,
which matures on January 15, 2017, carries an interest rate of 6.25 percent and
is secured by seven properties.
Mack-Cali
Realty Corporation is a fully-integrated, self-administered, self-managed real
estate investment trust (REIT) providing management, leasing, development,
construction and other tenant-related services for its class A real estate
portfolio. Mack-Cali owns or has interests in 289 properties, primarily office
and office/flex buildings located in the Northeast, totaling approximately
33.2
million square
feet. The properties enable the Company to provide a full complement of real
estate opportunities to its diverse base of approximately 2,100
tenants.
Additional
information on Mack-Cali Realty Corporation is available on the Company’s
website at
www.mack-cali.com
.
Statements
made in this press release may be forward-looking statements within the meaning
of Section 21E of the Securities Exchange Act of 1934, as amended.
Forward-looking statements can be identified by the use of words such as “may,”
“will,” “plan,” “should,” “expect,” “anticipate,” “estimate,” “continue,” or
comparable terminology. Such forward-looking statements are inherently
subject to certain risks, trends and uncertainties, many of which the Company
cannot predict with accuracy and some of which the Company might not even
anticipate, and involve factors that may cause actual results to differ
materially from those projected or suggested. Readers are cautioned not to
place undue reliance on these forward-looking statements and are advised to
consider the factors listed above together with the additional factors under the
heading “Disclosure Regarding Forward-Looking Statements” and “Risk Factors” in
the Company’s Annual Reports on Form 10-K, as may be supplemented or amended by
the Company's Quarterly Reports on Form 10-Q, which are incorporated herein by
reference. The Company assumes no obligation to update or supplement
forward-looking statements that become untrue because of subsequent events, new
information or otherwise.
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