Exhibit 10.131
New Jersey
NM Loan No. 338136
NY Life Loan No. 374-0185
RECORDING REQUESTED BY
WHEN RECORDED MAIL TO
The Northwestern Mutual Life Ins. Co.
720 East Wisconsin Avenue - Rm N16WC
Milwaukee, WI 53202
Attn: Sheila Lawton
SPACE ABOVE THIS LINE FOR RECORDER’S
USE
This Instrument was prepared by (Carol C.
Stern) Attorney, for The Northwestern Mutual Life Insurance
Company, 720 East Wisconsin Ave., Milwaukee, WI 53202 and New York
Life Insurance Company, 51 Madison Ave., New York, NY 10010.
MORTGAGE and SECURITY AGREEMENT
and FINANCING STATEMENT
THIS MORTGAGE and
SECURITY AGREEMENT and FINANCING STATEMENT is made as of the 28
th day of October,
2008 between M-C PLAZA V L.L.C. , a New Jersey limited
liability company (“Ground Lessor”), CAL-HARBOR
V URBAN RENEWAL ASSOCIATES L.P. , a New Jersey limited
partnership (“Ground Lessee” and/or “Master
Lessor”) and CAL-HARBOR V LEASING ASSOCIATES L.L.C. ,
a New Jersey limited liability company (“Plaza V
Leasing” and/or “Master Lessee”), whose mailing
address is c/o Mack-Cali Realty Corporation, 343 Thornall Street,
Edison, NJ 08837-2206, herein (whether one or more in number)
collectively called “Mortgagor”, and THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY , a Wisconsin
corporation, whose mailing address is 720 E. Wisconsin Avenue,
Milwaukee, WI 53202 (“Northwestern Mutual”), and NEW
YORK LIFE INSURANCE COMPANY , a New York mutual insurance
company, whose mailing address is c/o New York Life Investment
Management LLC, 51 Madison Avenue, New York, NY 10010 (“New
York Life”; Northwestern Mutual and New York Life, herein
together called “Mortgagee”):
WITNESSETH, That
Mortgagor, in consideration of the indebtedness herein mentioned,
does hereby grant, convey, mortgage and warrant unto Mortgagee
forever, the following property (herein referred to collectively as
the “Property”):
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The (i) land in Jersey City, Hudson County,
New Jersey, described in Exhibit “A” attached hereto
and incorporated herein (the “Land”), (ii) the
leasehold estate in the land created by that certain Ground Lease
between Harborside Exchange Place Limited Partnership
(“HEPLP”) and Plaza V Urban Renewal Associates L.P.
(“PVURA”) dated December 4, 1995, which lease was
assigned by HEPLP to Cali Harborside (Fee) Associates L.P.
(“Cali Harborside (Fee)”, predecessor-in-interest to
Ground Lessor) and by PVURA to Ground Lessee by separate
assignments each dated as of November 1, 1996, as amended by
Amendment to Plaza V Ground Lease dated as of November 1, 1996 and
further amended by Second Amendment to Ground Lease dated as of
March 29, 1999, and the landlord’s interest in which was
conveyed to Ground Lessor by Warranty Deed from Cali Harborside
(Fee) dated July 27, 2006 and recorded in the Hudson County
Register’s Office in Deed Book 7967, Page 308 et
seq . (collectively, the “Ground Lease”), and
(iii) the subleasehold interest in the Property created by that
certain Master Lease between Master Lessor and Plaza V Leasing
dated as of June 2, 1999 (the “Master Lease”); and
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All easements, appurtenances, tenements and
hereditaments including, but not limited to all waters, water
rights, water courses, ways, trees, rights, liberties and
privileges, belonging to or benefiting the Land; and
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All improvements to the Land including, but
not limited to, all buildings, structures and improvements now
existing or hereafter erected on the Land; all fixtures of every
description including, but not limited to, all engines, boilers,
elevators, machinery, heating apparatus, electrical equipment,
air-conditioning and ventilating equipment, water and gas fixtures,
which are or may be placed or used upon the Land and which are
attached to the buildings, structures, improvements or the Land;
all of which, to the extent permitted by applicable law, shall be
deemed an accession to the freehold and a part of the realty as
between the parties hereto; and
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Mortgagor’s interest in all articles of
personal property of every kind and nature whatsoever including,
but not limited to, all furniture and easily removable equipment
now or hereafter located upon the Land or in or on the buildings
and improvements and now owned or hereafter acquired by
Mortgagor.
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Without limiting the
foregoing grants, but subject to the terms and conditions of this
Mortgage, Mortgagor hereby pledges to Mortgagee, and grants to
Mortgagee a security interest in, all of Mortgagor’s present
and hereafter acquired right, title and interest in and to the
Property and any and all:
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Cash and other funds now or at any time
hereafter deposited by or for Mortgagor on account of tax, special
assessment, replacement or other reserves that may be required to
be maintained pursuant to the Loan Documents (as hereinafter
defined) with Mortgagee or a third party, or otherwise deposited
with, or in the possession of, Mortgagee pursuant to the Loan
Documents; and
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To the extent assignable or to the extent that
a valid lien can be created with respect thereto, surveys, soils
reports, environmental reports, guaranties, warranties,
architect’s contracts, construction contracts, drawings and
specifications, applications, permits, surety bonds and other
contracts relating to the acquisition, design, development,
construction and operation of the Property; and
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Accounts, chattel paper, deposit accounts,
instruments, equipment, inventory, documents, general intangibles,
letter-of-credit rights, investment property and all other personal
property of Mortgagor, in each case, to the extent associated with
or arising from the ownership, development, operation, use or
disposition of any portion of the property described, above
(including, without limitation, any and all rights in the property
name “Plaza V”); and
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Present and future rights to condemnation
awards, insurance proceeds or other proceeds at any time payable to
or received by Mortgagor on account of the Property or any of the
foregoing personal property.
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All personal property hereinabove described is
hereinafter collectively referred to as the “Personal
Property”.
If any of the
Property is of a nature that a security interest therein can be
perfected under the Uniform Commercial Code, this Mortgage shall
constitute a security agreement and financing statement if
permitted by applicable law and Mortgagor authorizes Mortgagee to
file a financing statement describing such Property and, at
Mortgagee’s request, agrees to join with Mortgagee in the
execution of any financing statements and to execute any other
instruments that may be necessary or desirable, in
Mortgagee’s determination, for the perfection or renewal of
such security interest under the Uniform Commercial Code.
TO HAVE AND TO HOLD
the same unto Mortgagee for the purpose of securing:
(a)
Payment to the order of Northwestern Mutual of the indebtedness
evidenced by a promissory note of even date herewith (and any
restatement, extension or renewal thereof and any amendment
thereto) executed by Mortgagor for the principal sum of ONE HUNDRED
TWENTY MILLION DOLLARS, with final maturity no later than November
1, 2018 and with interest as therein expressed (which promissory
note, as such instrument may be amended, restated, renewed and
extended, is hereinafter referred to as the “Northwestern
Note”); and
(b)
Payment to the order of New York Life of the indebtedness evidenced
by a promissory note of even date herewith (and any restatement,
extension or renewal thereof and any amendment thereto) executed by
Mortgagor for the principal sum of ONE HUNDRED TWENTY MILLION
DOLLARS, with final maturity no later than November 1, 2018 and
with interest as therein expressed (which promissory note, as such
instrument may be amended, restated, renewed and extended, is
hereinafter referred to as the “NYL Note”; the
Northwestern Note and the NYL Note are together referred to as the
“Notes”); and
(c)
Payment of all sums that may become due Mortgagee under the
provisions of, and the performance of each agreement of Mortgagor
contained in, the Loan Documents.
“Loan
Documents” means this Mortgage, the Notes, that certain Loan
Application dated as of August 5, 2008 from Mortgagor to Mortgagee
and that certain acceptance letter issued by Mortgagee dated
September 24, 2008 (together, the “Commitment”), that
certain Absolute Assignment of Leases and Rents of even date
herewith between Mortgagor and Mortgagee (the “Absolute
Assignment”), that certain Certification of Borrowers of even
date herewith, that certain Limited Liability Company Supplement
and that certain Limited Partnership Supplement each dated
contemporaneously herewith, any other supplements and
authorizations required by Mortgagee and all other agreements
entered into or documents executed by Mortgagor and delivered to
Mortgagee in connection with the indebtedness evidenced by the
Notes, except for that certain Environmental Indemnity Agreement of
even date herewith given by Mortgagor and Mack-Cali Realty, L.P., a
Delaware limited partnership (the “Principal”) to
Mortgagee (the “Environmental Indemnity Agreement”), as
any of the foregoing may be amended from time to time.
TO PROTECT THE
SECURITY OF THIS MORTGAGE, MORTGAGOR COVENANTS AND AGREES:
Payment of Debt
. Mortgagor agrees to pay the indebtedness hereby
secured (the “Indebtedness”) promptly and in full
compliance with the terms of the Loan Documents.
Ownership .
Ground Lessor
represents that: (i) subject to the Ground Lease, it owns the
portion of the Property described in Paragraph A, clause (i) and
Paragraph B, above; and (ii) pursuant to the Ground Lease, it holds
a reversionary interest in the portion of the Property described in
Paragraph C, above.
Ground Lessee
represents that, pursuant to the Ground Lease, it owns: (i) a
leasehold interest in the portion of the Property described in
Paragraph A, clauses (i) and (ii) and Paragraph B, above; and (ii)
the Property described in Paragraph C, above, and it has leased the
Property to Plaza V Leasing pursuant to the Master Lease.
Plaza V Leasing
represents that, pursuant to the Master Lease, it owns: (i) a
subleasehold interest in the portion of the Property described in
Paragraph A, clauses (i) and (iii) and Paragraphs B and C, above;
and (ii) the portion of the Property described in Paragraph D,
above.
Each Mortgagor
represents that it has good and lawful right to convey its
respective interest in the Property and that its respective
interest in the Property is free and clear from any and all
encumbrances whatsoever, except as appears in the title insurance
commitment received by Mortgagee on the date hereof (the
“Title Commitment”). Each Mortgagor does
hereby forever warrant and shall forever defend the title and
possession thereof against the claims of any and all persons
whomsoever, except such rights, interests and claims as appear in
the Title Commitment.
Ground Lessor and Ground Lessee each represent
and covenant to Mortgagee that:
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Ground Lessor and Ground Lessee have each
approved the Indebtedness represented by the Notes;
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Default under the Ground Lease by any party
thereto may result in foreclosure by Mortgagee of Ground
Lessor’s interest in the Property;
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The terms of the Ground Lease will be
subordinate to the terms of this Mortgage, with any conflict
resolved in favor of this Mortgage, and all rent and other payments
due Ground Lessor under the Ground Lease shall be deferred as
necessary to ensure that income from the Property after payment of
all expenses is sufficient to first pay in full all amounts payable
under the Loan Documents and all operating costs of the
Property;
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Ground Lessor and Ground Lessee will fully
perform their respective obligations under the Ground Lease;
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The Ground Lease is in full force and effect
and has not been amended, except as included within the defined
term “Ground Lease” and as may have been disclosed to
Mortgagee in writing prior to the date hereof and approved by
Mortgagee, and there are no defaults, claims or offsets thereunder
nor any matters that may ripen into a default, claim or offset by
any party thereto, except as may have been disclosed to Mortgagee
in writing prior to the date hereof and reasonably approved by
Mortgagee;
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Any default by Ground Lessor or Ground Lessee
under the Ground Lease shall constitute a default under this
Mortgage;
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Simultaneously with serving a default or other
notice upon the other, Ground Lessor and/or Ground Lessee shall
serve a copy of such notice upon Mortgagee;
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Mortgagee shall have the right (but not the
obligation) to cure any default by Ground Lessor or Ground Lessee
within the applicable time for cure set forth in the Ground Lease,
plus a reasonable period of time thereafter;
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Neither Ground Lessor nor Ground Lessee shall
take any action to cause or permit the termination or modification
of the Ground Lease or the merger of the fee interest and the
leasehold interest in the Property, and no agreement modifying,
cancelling or surrendering the Ground Lease shall be effective, in
each case, without Mortgagee’s prior written consent, and any
purported termination, modification, amendment, cancellation,
surrender or merger without Mortgagee’s consent shall be void
and constitute a default under this Mortgage; provided ,
however , that Mortgagee shall not unreasonably withhold,
delay or condition its consent; and
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In the event of termination of the Ground
Lease by process of law prior to the expiration of its term, Ground
Lessor shall, at Mortgagee’s option and request, enter into a
new lease with Mortgagee (or such party designated by Mortgagee)
for the remainder of the term of the Ground Lease at the rent and
with all the agreements, terms, covenants and conditions thereof,
including any applicable rights of renewal.
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Notwithstanding
anything to the contrary set forth above, Ground Lessor and Ground
Lessee may terminate the Ground Lease, without the consent of
Mortgagee, after the expiration or earlier termination of that
certain Financial Agreement dated June 2, 1999 by and between
Ground Lessee and the City of Jersey City, as amended by that
certain Amendment to Financial Agreement effective as of December
1, 2000 (together, the “Financial Agreement”).
Notwithstanding
anything to the contrary contained in this Mortgage, Mortgagor
shall have the right to terminate the Financial Agreement, without
the consent of Mortgagee, but in such event, Mortgagor shall
indemnify and hold Mortgagee harmless from and against any actual
damages sustained by Mortgagee after an Event of Default as a
result of such termination (which may include pre-Event of Default
real estate taxes in excess of the Annual Service Charge) (as such
term is defined in the Financial Agreement).
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Master Lessor and Master Lessee each represent
and covenant to Mortgagee that:
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Master Lessor and Master Lessee have each
approved the Indebtedness represented by the Notes;
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Default under the Master Lease or the Ground
Lease by any party thereto may result in foreclosure by Mortgagee
of Master Lessor’s interest in the Property;
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The terms of the Master Lease will be
subordinate to the terms of this Mortgage, with any conflict
resolved in favor of this Mortgage, and all rent and other payments
due Master Lessor under the Master Lease shall be deferred during
any period that the Property’s income is insufficient to
first pay in full all amounts payable under the Loan Documents and
all operating costs of the Property;
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Master Lessor and Master Lessee will fully
perform their respective obligations under the Master Lease;
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The Master Lease is in full force and effect
and has not been amended, except as may have been disclosed to
Mortgagee in writing prior to the date hereof and approved by
Mortgagee, and there are no defaults, claims or offsets thereunder
nor any matters that may ripen into a default, claim or offset by
any party thereto, except as may have been disclosed to Mortgagee
in writing prior to the date hereof and reasonably approved by
Mortgagee;
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Any default by Master Lessor or Master Lessee
under the Master Lease shall constitute a default under this
Mortgage;
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Simultaneously with serving a default or other
notice upon the other, Master Lessor and/or Master Lessee shall
serve a copy of such notice upon Mortgagee;
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Mortgagee shall have the right (but not the
obligation) to cure any default by Master Lessor or Master Lessee
within the applicable time for cure set forth in the Master Lease,
plus a reasonable period of time thereafter;
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Neither Master Lessor nor Master Lessee shall
take any action to cause or permit the termination or modification
of the Master Lease or the merger of the Master Lessor’s and
Master Lessee’s interest in the Property created by the
Master Lease, and no agreement modifying, cancelling or
surrendering the Master Lease shall be effective, in each case,
without Mortgagee’s prior written consent, and any purported
termination, modification, amendment, cancellation, surrender or
merger without Mortgagee’s prior consent shall be void and
constitute a default under this Mortgage; provided, however, that
Mortgagee shall not unreasonably withhold, condition or delay its
consent; and
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In the event of termination of the Master
Lease by process of law prior to the expiration of its term, Master
Lessor shall, at Mortgagee’s option and request, enter into a
new lease with Mortgagee (or such party designated by Mortgagee)
for the remainder of the term of the Master Lease at the rent and
with all the agreements, terms, covenants and conditions thereof,
including any applicable rights of renewal.
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Notwithstanding
anything to the contrary set forth above, Master Lessor and Master
Lessee may terminate the Master Lease, without the consent of
Mortgagee, after the expiration or earlier termination of the
Financial Agreement.
Maintenance of Property and Compliance
with Laws . Mortgagor agrees to keep the
buildings and other improvements now or hereafter erected on the
Land in good condition and repair; not to commit or suffer any
waste; to comply with all laws, rules and regulations affecting the
Property; and to permit Mortgagee to enter at all reasonable times
for the purpose of inspection and of conducting, in a reasonable
and proper manner, at its sole cost and expense except as may be
otherwise set forth in the Loan Documents, such tests as Mortgagee
reasonably determines to be necessary in order to monitor
Mortgagor’s compliance with applicable laws and regulations
regarding hazardous materials affecting the
Property. Notwithstanding the foregoing however, if, and
for so long as, Mortgagor is not in default pursuant to any of the
Loan Documents, Mortgagor shall have the right, at its sole cost
and expense, after prior written notice to Mortgagee, to contest,
by appropriate legal proceedings, diligently conducted in good
faith and without cost or expense to Mortgagee, the validity or
application of any rule or regulation as same may apply to or
affect Mortgagor or the Property, subject to the following: (i)
funds sufficient to satisfy the contested rule or regulation
(including the applicable penalty or fine) have been deposited in
an escrow or other reserve or a guaranty satisfactory to Mortgagee
shall be established; (ii) such contest shall not subject Mortgagee
or Mortgagor to any civil or criminal liability; (iii) by the terms
of any such rule or regulation, compliance therewith pending the
prosecution of any such legal proceedings may legally be delayed
without incurring (or increasing the risk of incurring) any damage
or injury of any kind to the Property or any person or property and
without incurring any lien or charge of any kind against the
Property or any fine or penalty against Mortgagor (excepting the
fine or penalty which is the subject of the contest); and (iv) such
contest shall not cause a breach of any of the terms, conditions or
covenants of any leases at the Property or other agreement on
Mortgagor’s part to be performed. In the event of
such an ongoing contest in accordance with the foregoing
conditions, the failure to comply with the law, rule or regulation
being contested shall not constitute a default under this
Mortgage.
Business Restriction Representation and
Warranty . Mortgagor represents and warrants
that each Mortgagor, all persons and entities owning (directly or
indirectly) an ownership interest in each Mortgagor (other than
shareholders of Mack-Cali Realty Corporation, a Maryland
corporation), all guarantors of all or any portion of the
Indebtedness, and all persons and entities executing any separate
indemnity agreement in favor of Mortgagee in connection with the
Indebtedness: (i) is not, and shall not become, a person or entity
with whom Mortgagee is restricted from doing business with under
regulations of the Office of Foreign Assets Control
(“OFAC”) of the Department of the Treasury (including,
but not limited to, those named on OFAC’s Specially
Designated Nationals and Blocked Persons list) or under any
statute, executive order (including, but not limited to, the
September 24, 2001 Executive Order Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action; (ii)
is not, and shall not become, a person or entity with whom
Mortgagee is restricted from doing business with under the
International Money Laundering Abatement and Financial
Anti-Terrorism Act of 2001 or the regulations or orders thereunder;
and (iii) is not knowingly engaged in, and shall not knowingly
engage in, any dealings or transaction or be otherwise associated
with such persons or entities described in (i) and (ii), above.
ERISA .
(a)
Neither Mortgagor nor any entity that holds a direct or indirect
interest in Mortgagor (a “Constituent Entity”) is or
shall be (i) an employee benefit plan within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974
(“ERISA”) regardless of whether such plan is actually
subject to ERISA, (ii) a plan to which Internal Revenue Code
Section 4975 applies, or (iii) an entity the underlying assets of
which include ERISA “plan assets” by reason of a
plan’s investment in the entity ( e.g. , insurance
company general or separate account; bank commingled fund).
(b)
Transactions by or with Mortgagor are not and will not be subject
to any legal requirements regulating investments of and fiduciary
obligations with respect to an employee benefit plan (within the
meaning of Section 3(3) of ERISA), regardless of whether such plan
is actually subject to ERISA.
(c)
Any liability or obligation that Mortgagor (or any Constituent
Entity) may have in respect of an employee benefit plan as defined
in Section 3(3) of ERISA, regardless of whether such plan is
actually subject to ERISA, has been and shall continue to be
satisfied in full.
Insurance . Mortgagor
agrees to keep the Property insured for the protection of Mortgagee
and Mortgagee’s wholly owned subsidiaries and agents in such
manner, in such amounts and in such companies as Mortgagee may from
time to time approve, and to keep the policies therefor, properly
endorsed, on deposit with Mortgagee, or at Mortgagee’s
option, to keep certificates of insurance (Acord 28 (2003/10) for
all property insurance and Acord 25 for all liability insurance)
evidencing all insurance coverages required hereunder on deposit
with Mortgagee, which certificates shall provide at least thirty
(30) days notice of cancellation to Mortgagee and shall list
Mortgagee as the certificate holder with Mortgagee’s correct
mailing address and the Loan number(s) assigned to the
Indebtedness. If Mortgagor requests Mortgagee to accept
a different form of insurance certificate, Mortgagee shall not
unreasonably withhold its consent to the provision of such
different form of insurance certificate provided a copy of a
standard mortgagee endorsement in favor of Mortgagee stating that
the insurer shall provide Mortgagee with thirty (30) days notice of
cancellation accompanies such certificate. Insurance
loss proceeds from all property insurance policies, whether or not
required by Mortgagee (less expenses of collection) shall, at
Mortgagee’s option, be applied on the Indebtedness, whether
due or not, or to the restoration of the Property, but such
application shall not cure or waive any default under any of the
Loan Documents. If Mortgagee elects to apply the
insurance loss proceeds on the Indebtedness, no prepayment fee
shall be due thereon.
Notwithstanding the
foregoing provision, Mortgagee agrees that: (i) if the insurance
loss proceeds do not exceed $2,000,000, such proceeds shall be paid
to Mortgagor and shall be used by Mortgagor to restore the Property
substantially to its condition prior to the casualty; and (ii) if
the insurance loss proceeds exceed $2,000,000 but are less than the
unpaid principal balance of the Notes and if the casualty occurs
prior to the last two (2) years of the term of the Notes, then the
insurance loss proceeds (less reasonable expenses of collection)
shall be applied to restoration of the Property substantially to
its condition prior to the casualty, subject to satisfaction of the
following conditions:
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There is no existing Event of Default at the
time of the casualty.
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The casualty insurer has not denied liability
for payment of insurance loss proceeds to Mortgagor as a result of
any act, neglect, use or occupancy of the Property by Mortgagor or
any tenant of the Property.
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Mortgagee shall be satisfied that all
insurance loss proceeds so held, together with supplemental funds
to be made available by Mortgagor, shall be sufficient to complete
the restoration of the Property. Any remaining insurance
loss proceeds shall be released to Mortgagor.
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If required by Mortgagee, Mortgagee shall be
furnished a satisfactory report addressed to Mortgagee from an
environmental engineer or other qualified professional satisfactory
to Mortgagee to the effect that no adverse environmental impact to
the Property resulted from the casualty.
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Mortgagee shall hold the proceeds in an escrow
account earning a competitive rate of interest for the benefit of
Mortgagor. In such event, Mortgagee shall release
casualty insurance proceeds once per month as restoration of the
Property progresses provided that Mortgagee is furnished
satisfactory evidence of the costs of restoration and if, at the
time of such release, there shall exist no Monetary Default (as
hereinafter defined) under the Loan Documents and no Non-Monetary
Default with respect to which Mortgagee shall have given Mortgagor
notice pursuant to the Notice of Default provision
herein. If a Monetary Default shall occur or Mortgagee
shall give Mortgagor notice of a Non-Monetary Default pursuant to
the Notice of Default provision hereof, Mortgagee shall have no
further obligation to release insurance loss proceeds hereunder
unless such default is cured within the cure period set forth in
the Notice of Default provision contained herein. The
drawings and specifications for the restoration shall be approved
by Mortgagee in writing prior to commencement of the restoration
and Mortgagee shall receive an administration fee equal to one
percent (1%) of the insurance proceeds to be disbursed by Mortgagee
but not to exceed $25,000. Mortgagee shall not
unreasonably withhold, delay or condition its approval of the
drawings and specifications for the restoration.
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Prior to each release of funds, Mortgagor
shall obtain for the benefit of Mortgagee an endorsement to
Mortgagee’s title insurance policy insuring Mortgagee’s
lien as a first and valid lien on the Property subject only to
liens and encumbrances theretofore approved by Mortgagee or
permitted, pursuant to the Loan Documents, to be entered into by
Mortgagor without Mortgagee’s consent.
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Mortgagor shall pay all reasonable, third
party out-of-pocket costs and expenses incurred by Mortgagee,
including, but not limited to, outside legal fees, title insurance
costs, third-party disbursement fees, third-party engineering
reports and inspections deemed necessary by Mortgagee.
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All reciprocal easement and operating
agreements benefiting the Property, if any, shall remain in full
force and effect between the parties thereto on and after
restoration of the Property.
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Mortgagee shall be satisfied that Projected
Debt Service Coverage of at least 1.25 will be produced from
then-existing leases at the Property (which are not subject to
termination by the tenant as a result of the casualty either by the
terms of the lease or pursuant to a waiver of such right executed
by the tenant) and any new leases reasonably satisfactory to
Mortgagee for terms of at least five (5) years to commence not
later than thirty (30) days following completion of such
restoration (such existing leases not subject to termination,
together with such new leases, the “Approved
Leases”).
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“Projected Debt
Service Coverage” means a number calculated by dividing
Projected Operating Income Available for Debt Service for the first
fiscal year following restoration of the Property by the debt
service during the same fiscal year under all indebtedness secured
by any portion of the Property. For purposes of the
preceding sentence, “debt service” means the greater of
(x) debt service due under all such indebtedness during the first
fiscal year following completion of the restoration of the Property
or (y) debt service that would be due and payable during such
fiscal year if all such indebtedness were amortized over thirty
(30) years (whether or not amortization is actually required) and
if interest on such indebtedness were due as it accrues at the face
rate shown on the notes therefor (whether or not such loans require
interest payments based on such face rates).
“Projected
Operating Income Available for Debt Service” means projected
gross annual rent from the Approved Leases for the first full
fiscal year following completion of the restoration of the Property
less:
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The operating expenses of the Property for the
last fiscal year preceding the casualty and
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a replacement reserve for future tenant
improvements, leasing commissions and structural items based on not
less than $2.11 per square foot per annum;
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the amount, if any, by which actual gross
income during such fiscal period exceeds that which would be earned
from the rental of 94% of the gross leaseable area in the
Property;
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the amount, if any, by which the actual
management fee is less than 3% of gross revenue during such fiscal
period;
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the amount, if any, by which the actual real
estate taxes or payments in lieu of taxes (“PILOT”) are
less than $3.25 per square foot per annum; and
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the amount, if any, by which total operating
expenses, excluding management fees, real estate taxes and
replacement reserves, are less than $10.24 per square foot per
annum.
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All projections referenced above shall be
calculated in a manner reasonably satisfactory to Mortgagee.
If (i) the casualty occurs during the last two
years of the term of the Notes, and the insurance loss proceeds
exceed $2,000,000, or (ii) any of the foregoing conditions to the
obligation of Mortgagee to make the insurance proceeds available
for restoration have not been satisfied, and, in either such event,
Mortgagee elects to apply the proceeds toward prepayment of the
Notes, then Mortgagor shall have the right to prepay the entire
loan secured by this Mortgage without paying a prepayment fee.
Condemnation
. Mortgagor hereby assigns to Mortgagee (i) any award
and any other proceeds resulting from damage to, or the taking of,
all or any portion of the Property, and (ii) the proceeds from any
sale or transfer in lieu thereof (collectively, “Condemnation
Proceeds”) in connection with condemnation proceedings or the
exercise of any power of eminent domain or the threat thereof
(hereinafter, a “Taking”); if the Condemnation Proceeds
are less than the unpaid principal balance of the Notes and such
damage or Taking occurs prior to the last two years of the term of
the Notes, such Condemnation Proceeds (less expenses of collection)
shall be applied to restoration of the Property to its condition,
or the functional equivalent of its condition prior to the Taking,
subject to the conditions set forth above in the section entitled
“ Insurance ” and subject to the further
condition that restoration or replacement of the improvements on
the Land to their functional and economic utility prior to the
Taking be possible. Any portion of such award and
proceeds not applied to restoration shall, at Mortgagee’s
option, be applied on the Indebtedness, whether due or not, or be
released to Mortgagor, but such application or release shall not
cure or waive any default under any of the Loan Documents.
Taxes and Special Assessments
. Mortgagor agrees to pay before delinquency all taxes,
special assessments and PILOT of any kind that have been or may be
levied or assessed against the Property, this Mortgage, the Notes
or the Indebtedness, or upon the interest of Mortgagee in the
Property, this Mortgage, the Notes or the Indebtedness, and to
procure and deliver to Mortgagee within 30 days after Mortgagee
shall have given a written request to Mortgagor, the official
receipt of the proper officer showing timely payment of all such
taxes, assessments and/or PILOT; provided , however ,
that Mortgagor shall not be required to pay any such taxes, special
assessments and/or PILOT if the amount, applicability or validity
thereof shall currently be contested in good faith by appropriate
proceedings and funds sufficient to satisfy the contested amount
have been deposited in an escrow or other reserve or a guaranty
satisfactory to Mortgagee shall be established; and provided
further that no escrow, reserve or additional guaranty shall
be required in connection with a contest involving the matters set
forth on Schedule 1 of the Commitment.
Personal Property
. With respect to the Personal Property, Mortgagor
hereby represents, warrants and covenants as follows:
(a)
Except for the security interest granted hereby, Mortgagor is, and
as to portions of the Personal Property to be acquired after the
date hereof will be, the sole owner of the Personal Property, free
from any other lien, security interest, encumbrance or adverse
claim thereon of any kind whatsoever. Mortgagor shall
notify Mortgagee of, and shall indemnify and defend Mortgagee and
the Personal Property against, all claims and demands of all
persons at any time claiming the Personal Property or any part
thereof or any interest therein.
(b)
Mortgagor agrees not to sell, transfer, assign, convey, lease or
remove Personal Property now or hereafter located on the Land
without the prior written consent from Mortgagee unless (i) such
action does not constitute a sale or removal of any buildings or
structures or the sale or transfer of waters or water rights, and
(ii) such action results in the substitution or replacement of such
Personal Property with similar items of equivalent value.
(c)
Ground Lessor is a limited liability company organized under the
laws of the State of New Jersey; Ground Lessee is a limited
partnership organized under the laws of the State of New Jersey;
and Master Lessee is a limited liability company organized under
the laws of the State of New Jersey. Until the
Indebtedness is paid in full, each Mortgagor shall: (i) not change
its legal name without providing Mortgagee with at least fifteen
(15) business days prior written notice; (ii) not change its state
of organization without providing Mortgagee with at least fifteen
(15) business days prior written notice; and (iii) preserve its
existence and shall not, in one transaction or a series of
transactions, merge into or consolidate with any other entity,
unless permitted under the section hereof entitled “
Prohibition on Transfer/One-Time Transfer
”. In the event that any Mortgagor shall elect to
change its legal name and/or change its state of organization, such
Mortgagor shall first provide a Uniform Commercial Code search(es)
of such new legal name and/or new state of organization, which
shall be satisfactory in all respects to
Mortgagee. Mortgagor shall then promptly and duly
execute and deliver any and all such further instruments and
documents and take such further action as Mortgagee may reasonably
deem necessary or desirable to obtain the full benefits of this
Mortgage with respect to the Personal Property including, without
limitation, delivering and causing to be filed new financing
statements under the Uniform Commercial Code with respect to the
security interests granted hereby and such supplemental
instruments, documents and agreements as Mortgagee shall require
for the purpose of confirming and perfecting, and continuing the
perfection of, Mortgagee’s security interest in any or all of
the Personal Property.
(d)
At the request of Mortgagee, Mortgagor shall join Mortgagee in
executing one or more financing statements and continuations and
amendments thereof pursuant to the Uniform Commercial Code in form
satisfactory to Mortgagee, and Mortgagor shall pay the cost of
filing the same in all public offices wherever filing is deemed by
Mortgagee to be necessary or desirable. Mortgagor shall
also, at Mortgagor’s expense, take any and all other action
requested by Mortgagee to perfect Mortgagee’s security
interest under the Uniform Commercial Code with respect to the
Personal Property including, without limitation, exercising
Mortgagor’s commercially reasonable efforts to obtain any
consents, agreements or acknowledgments required of third parties
to perfect Mortgagee’s security interest in Personal Property
consisting of deposit accounts, letter-of-credit rights, investment
property and electronic chattel paper.
Other Liens
. Mortgagor agrees to keep the Property and any Personal
Property free from all other liens either prior or subsequent to
the lien created by this Mortgage. The: (i) creation of
any other lien on any portion of the Property or on any Personal
Property, whether or not prior to the lien created hereby; (ii)
assignment or pledge by Mortgagor of its revocable license to
collect, use and enjoy rents and profits from the Property; or
(iii) granting or permitting of a security interest in or other
lien on the direct or indirect ownership interests in Mortgagor,
shall constitute a default under the terms of this Mortgage; except
that upon written notice to Mortgagee, Mortgagor may, without the
existence of such lien constituting a default under this Mortgage,
proceed to contest in good faith and by appropriate proceedings any
mechanics’ liens, tax liens or judgment liens with respect to
the Property or any Personal Property described herein, provided
funds sufficient to satisfy the contested amount have been
deposited in an escrow or other reserve satisfactory to Mortgagee
or, in the case of a mechanics’ lien, Mortgagor shall have
furnished a bond or other security or indemnity as Mortgagee may
request insuring Mortgagee against all loss, damage or expense
(including the cost of defense) arising from such mechanics’
lien.
A.
Definitions . As used in this Mortgage, the
following terms shall have the following meanings:
(a)
Environment : Ambient air, surface water, building interior,
groundwater, surface or subsurface soil or other geologic media,
sediment and all plants and wildlife present therein or
thereon.
(b)
Environmental Conditions : Any environmental contamination
or pollution or threatened contamination or pollution of, or the
Release or threatened Release of Hazardous Substances into, the
Environment.
(c)
Environmental Documents : Any and all documents including,
without limitation, all reports, work plans, proposals, data,
audits, evaluations, analyses, correspondence and sampling results,
concerning environmental matters of any kind or nature whatsoever
respecting the Property including, without limitation,
Environmental Conditions on, at, under or emanating from the
Property (i) received by the Mortgagor from or submitted by the
Mortgagor to any Governmental Authority, or (ii) otherwise in the
possession, custody or control of the Mortgagor.
(d)
Environmental Laws : Any and all federal, state, regional
and local laws, statutes, ordinances, common law, regulations,
rules, guidance, codes, consent decrees, judicial or administrative
orders or decrees, directives or judgments relating to pollution,
damage to or protection of the Environment, Environmental
Conditions, or the use, handling, processing, distribution,
generation, treatment, storage, disposal, manufacture or transport
of Hazardous Substances at or with respect to the Property,
presently in effect or hereafter amended, modified or adopted from
time-to-time during the term hereof including, but not limited to,
the Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA” or the “Federal Superfund
Act”), as amended by the Superfund Amendments and
Reauthorization Act of 1986 (“SARA”) (42 U.S.C. §
9601-9675); the Resource Conservation and Recovery Act of 1976, as
amended (“RCRA”) (42 U.S.C. § 6901, et
seq .); the Clean Water Act, as amended (33 U.S.C. §
1251, et seq .); the Clean Air Act, as amended (42
U.S.C. § 7401, et seq .); the Federal
Insecticide, Fungicide and Rodenticide Act, as amended
(“FIFRA”) (7 U.S.C. § 136, et seq
.); the Hazardous Materials Transportation Act, as amended (49
U.S.C. Section 1801, et s eq .); the Toxic Substances
Control Act (15 U.S.C. 2601, et seq .); the New
Jersey Spill Compensation and Control Act, as amended (the
“Spill Act”) (N.J.S. 58:10-23.11, et seq
.); the Industrial Site Recovery Act, as amended
(“ISRA”) (N.J.S. 13:1K-6, et seq .); the
New Jersey Solid Waste Management Act, as amended (N.J.S. 13:1E-1,
et seq .); the New Jersey Underground Storage of
Hazardous Substances Act (“New Jersey UST Act”), as
amended (N.J.S. 58:10A-21, et seq .); the New Jersey
Water Pollution Control Act, as amended (N.J.S. 58:10A-1, et
seq .); the New Jersey Air Pollution Control Act (N.J.S.
26:2C-1, et seq .); the Safe Drinking Water Act (33
U.S.C. 1251, et seq .); the New Jersey Worker and
Community Right to Know Act (N.J.S. 34:5A-1, et seq
.); the New Jersey Toxic Catastrophe Prevention Act (N.J.S.
13:1-19, et seq .); the New Jersey Environmental
Rights Act (N.J.S. 2A:35A-1, et seq .); and the rules
and regulations promulgated thereunder.
(e)
Environmental Engineer’s Report : That certain
Environmental Site Assessment prepared by Pennoni Associates Inc.,
dated September 29, 2008.
(f)
Governmental Authority : Any nation or government, any
state, city, locality, municipality or political subdivision
thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government and any government authority, agency, department, board,
commission or instrumentality, including, without limitation, the
United States Environmental Protection Agency
(“USEPA”), the New Jersey Department of Environmental
Protection (“NJDEP”) and all other federal, state,
regional, county or local government authorities authorized or
having jurisdiction to enforce Environmental Laws.
(g)
Hazardous Substances : Any substance, material or waste,
whether liquid, gaseous or solid, and any pollutant or contaminant,
that is toxic, hazardous, explosive, corrosive, infectious or
radioactive, or that is defined, listed or regulated under any
Environmental Laws including, without limitation, petroleum,
polychlorinated biphenyls, urea formaldehyde and asbestos and
asbestos containing materials.
(h)
Losses : All actions, suits, claims, liabilities, losses,
damages, penalties, fines, fees, costs and expenses, including,
without limitation, sampling, monitoring and remediation costs,
natural resource damages, damages on account of personal injuries,
death or
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