Attached files
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
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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:
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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.
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“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.
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“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.
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“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.
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“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.
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“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.
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“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.
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Section
2.
|
THE
LOANS.
|
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.
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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.
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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).
-12-
“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).
-13-
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.
-14-
“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).
-15-
“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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-16-
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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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-17-
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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)
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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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-18-
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(vi)
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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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-19-
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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)
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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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-20-
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(c)
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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)
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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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-21-
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(ii)
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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)
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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)
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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)
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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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-22-
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(ii)
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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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-23-
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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.
-24-
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)
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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)
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Each
Release Property released shall be the entire Individual Property
identified with the applicable Individual
Loan.
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(d)
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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)
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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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-25-
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(g)
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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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-26-
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(i)
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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)
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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:
-27-
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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)
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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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-28-
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(c)
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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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-29-
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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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-30-
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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.
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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%).
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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.
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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).
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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).
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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.
-36-
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.
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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:
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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
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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
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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
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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
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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
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-38-
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.
-39-
(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.
-40-
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.
-41-
IN WITNESS WHEREOF, the
undersigned have duly executed this Agreement as a sealed instrument as of the
date first set forth above.
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GUARANTORS:
MACK-CALI REALTY
CORPORATION, a Maryland
corporation
By:
/s/ Barry Lefkowitz
Name: Barry
Lefkowitz
Title:Executive Vice President
and Chief Financial Officer
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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
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BORROWERS:
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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
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-42-
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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
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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
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|
LENDER:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New Jersey corporation
By: /s/ Melissa Farrell
Name: Melissa
Farrell
Title: Vice
President
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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
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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
|