Exhibit 10.11
PREPARED BY AND UPON
RECORDATION
RETURN TO:
Winston & Strawn
LLP
200 Park Avenue
New York, New York
Attention: Corey A. Tessler, Esq.
Loan No.: 502856397 |
5 Becker Farm Road, Roseland, New Jersey |
5 BECKER SPE LLC,
as Borrower
to
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Lender
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
Date: May 9, 2006
TABLE OF CONTENTS
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Page |
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ARTICLE I REPRESENTATIONS AND WARRANTIES OF BORROWER |
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5 |
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Section 1.1 |
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Organization; Special Purpose |
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5 |
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Section 1.2 |
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Title |
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5 |
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Section 1.3 |
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No Bankruptcy Filing |
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6 |
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Section 1.4 |
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Full and Accurate Disclosure |
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6 |
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Section 1.5 |
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Proceedings; Enforceability |
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6 |
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Section 1.6 |
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No Conflicts |
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7 |
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Section 1.7 |
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Federal Reserve Regulations; Investment Company Act |
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7 |
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Section 1.8 |
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Taxes |
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7 |
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Section 1.9 |
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ERISA |
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7 |
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Section 1.10 |
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Property Compliance |
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8 |
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Section 1.11 |
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Utilities |
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8 |
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Section 1.12 |
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Public Access |
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8 |
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Section 1.13 |
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Litigation; Agreements |
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8 |
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Section 1.14 |
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Physical Condition |
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9 |
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Section 1.15 |
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Contracts |
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9 |
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Section 1.16 |
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Leases |
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9 |
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Section 1.17 |
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Foreign Person |
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10 |
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Section 1.18 |
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Management Agreement |
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10 |
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Section 1.19 |
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Fraudulent Transfer |
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10 |
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ARTICLE II COVENANTS OF BORROWER |
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10 |
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Section 2.1 |
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Defense of Title |
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10 |
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Section 2.2 |
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Performance of Obligations |
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11 |
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Section 2.3 |
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Insurance |
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11 |
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Section 2.4 |
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Payment of Taxes |
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16 |
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Section 2.5 |
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Casualty and Condemnation |
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16 |
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Section 2.6 |
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Construction Liens |
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19 |
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Section 2.7 |
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Rents and Profits |
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19 |
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Section 2.8 |
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Leases |
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20 |
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Section 2.9 |
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Alienation and Further Encumbrances. |
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23 |
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Section 2.10 |
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Payment of Utilities, Assessments, Charges, Etc |
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28 |
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Section 2.11 |
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Access Privileges and Inspections |
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29 |
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Section 2.12 |
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Waste; Alteration of Improvements |
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29 |
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Section 2.13 |
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Zoning |
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29 |
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Section 2.14 |
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Financial Statements and Books and Records |
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30 |
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Section 2.15 |
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Further Assurances |
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31 |
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Section 2.16 |
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Payment of Costs; Reimbursement to Lender |
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32 |
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Section 2.17 |
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Security Interest |
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33 |
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Section 2.18 |
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Security Agreement |
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34 |
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Section 2.19 |
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Easements and Rights-of-Way |
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35 |
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Section 2.20 |
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Compliance with Laws |
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35 |
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Section 2.21 |
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Additional Taxes |
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36 |
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Section 2.22 |
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Secured Indebtedness |
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36 |
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Section 2.23 |
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Borrowers Waivers |
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36 |
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Section 2.24 |
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SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL |
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37 |
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Section 2.25 |
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Attorney-in-Fact Provisions |
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38 |
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Section 2.26 |
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Management |
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38 |
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Section 2.27 |
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Hazardous Waste and Other Substances |
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38 |
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Section 2.28 |
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Indemnification; Subrogation |
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43 |
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Section 2.29 |
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Covenants with Respect to Existence, Indebtedness, Operations, Fundamental Changes of Borrower |
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44 |
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Section 2.30 |
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Embargoed Person |
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49 |
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Section 2.31 |
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Anti-Money Laundering |
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49 |
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Section 2.32 |
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ERISA |
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49 |
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Section 2.33 |
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Opinion Assumptions |
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50 |
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ARTICLE III RESERVES AND CASH MANAGEMENT |
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51 |
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Section 3.1 |
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Reserves Generally |
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51 |
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Section 3.2 |
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[Payment Reserve |
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Section 3.3 |
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Impound Account |
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53 |
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Section 3.4 |
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Immediate Repairs Reserve |
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54 |
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Section 3.5 |
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Replacement Reserve |
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55 |
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Section 3.6 |
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[Rollover Reserve] |
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56 |
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[Holdback Reserve |
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ARTICLE IV EVENTS OF DEFAULT |
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59 |
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Section 4.1 |
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Events of Default |
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59 |
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ARTICLE V REMEDIES |
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61 |
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Section 5.1 |
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Remedies Available |
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61 |
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Section 5.2 |
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Application of Proceeds |
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63 |
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Section 5.3 |
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Right and Authority of Receiver or Lender in the Event of Default; Power of Attorney |
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64 |
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Section 5.4 |
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Occupancy After Foreclosure |
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65 |
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Section 5.5 |
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Notice to Account Debtors |
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65 |
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Section 5.6 |
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Cumulative Remedies |
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65 |
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Section 5.7 |
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Payment of Expenses |
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65 |
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ARTICLE VI MISCELLANEOUS TERMS AND CONDITIONS |
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66 |
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Section 6.1 |
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Time of Essence |
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66 |
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Section 6.2 |
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Release of Mortgage |
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66 |
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Section 6.3 |
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Certain Rights of Lender |
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66 |
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Section 6.4 |
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Waiver of Certain Defenses |
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66 |
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Section 6.5 |
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Notices |
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66 |
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Section 6.6 |
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Successors and Assigns; Joint and Several Liability |
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67 |
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Section 6.7 |
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Severability |
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67 |
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Section 6.8 |
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Gender |
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67 |
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Section 6.9 |
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Waiver; Discontinuance of Proceedings |
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67 |
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Section 6.10 |
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Section Headings |
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68 |
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Section 6.11 |
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GOVERNING LAW |
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68 |
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Section 6.12 |
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Counting of Days |
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68 |
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Section 6.13 |
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Relationship of the Parties |
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68 |
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Section 6.14 |
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Application of the Proceeds of the Note |
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68 |
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Section 6.15 |
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Unsecured Portion of Indebtedness |
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68 |
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Section 6.16 |
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Cross Default |
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68 |
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Section 6.17 |
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Interest After Sale |
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68 |
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Section 6.18 |
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Inconsistency with Other Loan Documents |
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69 |
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Section 6.19 |
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Construction of this Document |
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69 |
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Section 6.20 |
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No Merger |
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69 |
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Section 6.21 |
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Rights With Respect to Junior Encumbrances |
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69 |
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Section 6.22 |
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Lender May File Proofs of Claim |
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69 |
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Section 6.23 |
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Fixture Filing |
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69 |
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Section 6.24 |
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After-Acquired Property |
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70 |
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Section 6.25 |
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No Representation |
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70 |
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Section 6.26 |
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Counterparts |
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70 |
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Section 6.27 |
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Personal Liability |
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70 |
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Section 6.28 |
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Recording and Filing |
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70 |
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Section 6.29 |
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Entire Agreement and Modifications |
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70 |
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Section 6.30 |
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Intentionally Reserved |
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71 |
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Section 6.31 |
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Secondary Market |
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71 |
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Section 6.32 |
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Dissemination of Information |
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71 |
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Section 6.33 |
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Certain Matters Relating to Property Located in the State of |
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71 |
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Section 6.34 |
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REMIC Opinions |
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71 |
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Section 6.35 |
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[For Loans in Excess of $20,000,000 |
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71 |
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MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (as the same may be from time to time amended, consolidated, renewed or replaced, this Mortgage) is made as of May 9, 2006 by 5 BECKER SPE LLC, a Delaware limited liability company, as grantor (Borrower), whose address c/o Mack-Cali Realty, L.P. at 11 Commerce Drive, Cranford, New Jersey 07016, to WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as beneficiary (together with its successors and assigns, Lender), whose address is Commercial Real Estate Services, 8739 Research Drive URP 4, NC 1075, Charlotte, North Carolina 28262.
THAT FOR AND IN CONSIDERATION OF THE SUM OF TEN AND NO/100 DOLLARS ($10.00), AND OTHER VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, BORROWER HEREBY IRREVOCABLY MORTGAGES, GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS, PLEDGES, SETS OVER AND ASSIGNS, with power of sale, all of Borrowers estate, right, title and interest in, to and under any and all of the following described property, whether now owned or hereafter acquired by Borrower (collectively, the Property):
(A) All that certain real property situated in the County of Essex, State of New Jersey, more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the Premises), together with all of the easements, rights, privileges, franchises, tenements, hereditaments and appurtenances now or hereafter thereunto belonging or in any way appertaining thereto, and all of the estate, right, title, interest, claim and demand whatsoever of Borrower therein or thereto, either at law or in equity, in possession or in expectancy, now or hereafter acquired;
(B) All structures, buildings and improvements of every kind and description now or at any time hereafter located or placed on the Premises (the Improvements);
(C) All furniture, furnishings, fixtures, goods, equipment, inventory or personal property owned by Borrower and now or hereafter located on, attached to or used in and about the Improvements, including, but not limited to, all machines, engines, boilers, dynamos, elevators, stokers, tanks, cabinets, awnings, screens, shades, blinds, carpets, draperies, lawn mowers, and all appliances, plumbing, heating, air conditioning, lighting, ventilating, refrigerating, disposal and incinerating equipment, and all fixtures and appurtenances thereto, and such other goods and chattels and personal property owned by Borrower as are now or hereafter used or furnished in operating the Improvements, or the activities conducted therein, and all building materials and equipment hereafter situated on or about the Premises or Improvements, and all warranties and guaranties relating thereto, and all additions thereto and substitutions and replacements therefor (exclusive of any of the foregoing owned or leased by tenants of space in the Improvements);
(D) All easements, rights-of-way, strips and gores of land, vaults, streets, ways, alleys, passages, sewer rights, and other emblements now or hereafter located on the Premises or under or above the same or any part or parcel thereof, and all estates, rights, titles, interests, tenements, hereditaments and appurtenances, reversions and remainders whatsoever, in any way belonging, relating or appertaining to the Property or any part thereof, or which hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned or hereafter acquired by Borrower;
(E) All water, ditches, wells, reservoirs and drains and all water, ditch, well, reservoir and drainage rights which are appurtenant to, located on, under or above or used in connection with the Premises or the Improvements, or any part thereof, whether now existing or hereafter created or acquired;
(F) All minerals, crops, timber, trees, shrubs, flowers and landscaping features now or hereafter located on, under or above the Premises;
(G) All cash funds, deposit accounts and other rights and evidence of rights to cash, now or hereafter created or held by Lender pursuant to this Mortgage or any other of the Loan Documents (as hereinafter defined), including, without limitation, all funds now or hereafter on deposit in the Reserves (as hereinafter defined);
(H) All leases (including, without limitation, oil, gas and mineral leases), licenses, concessions and occupancy agreements of all or any part of the Premises or the Improvements (each, a Lease and collectively, Leases), whether written or oral, now or hereafter entered into and all rents, royalties, issues, profits, bonus money, revenue, income, rights and other benefits (collectively, the Rents and Profits) of the Premises or the Improvements, now or hereafter arising from the use or enjoyment of all or any portion thereof or from any present or future Lease or other agreement pertaining thereto or arising from any of the Leases or any of the General Intangibles (as hereinafter defined) and all cash or securities deposited to secure performance by the tenants, lessees or licensees (each, a Tenant and collectively, Tenants), as applicable, of their obligations under any such Leases, whether said cash or securities are to be held until the expiration of the terms of said Leases or applied to one or more of the installments of rent coming due prior to the expiration of said terms, subject, however, to the provisions contained in Section 2.7 hereinbelow;
(I) All contracts and agreements now or hereafter entered into covering any part of the Premises or the Improvements (collectively, the Contracts) and all revenue, income and other benefits thereof, including, without limitation, management agreements, service contracts, maintenance contracts, equipment leases, personal property leases and any contracts or documents relating to construction on any part of the Premises or the Improvements (including plans, drawings, surveys, tests, reports, bonds and governmental approvals) or to the management or operation of any part of the Premises or the Improvements;
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(J) All present and future monetary deposits given to any public or private utility with respect to utility services furnished to any part of the Premises or the Improvements;
(K) All present and future funds, accounts, instruments, accounts receivable, documents, causes of action, claims, general intangibles (including, without limitation, trademarks, trade names, service marks and symbols now or hereafter used in connection with any part of the Premises or the Improvements, all names by which the Premises or the Improvements may be operated or known, all rights to carry on business under such names, and all rights, interest and privileges which Borrower has or may have as developer or declarant under any covenants, restrictions or declarations now or hereafter relating to the Premises or the Improvements) and all notes or chattel paper now or hereafter arising from or by virtue of any transactions related to the Premises or the Improvements (collectively, the General Intangibles);
(L) All water taps, sewer taps, certificates of occupancy, permits, licenses, franchises, certificates, consents, approvals and other rights and privileges now or hereafter obtained in connection with the Premises or the Improvements and all present and future warranties and guaranties relating to the Improvements or to any equipment, fixtures, furniture, furnishings, personal property or components of any of the foregoing now or hereafter located or installed on the Premises or the Improvements;
(M) All building materials, supplies and equipment now or hereafter placed on the Premises or in the Improvements and all architectural renderings, models, drawings, plans, specifications, studies and data now or hereafter relating to the Premises or the Improvements;
(N) All right, title and interest of Borrower in any insurance policies or binders now or hereafter relating to the Property, including any unearned premiums thereon;
(O) All proceeds, products, substitutions and accessions (including claims and demands therefor) of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including, without limitation, proceeds of insurance and condemnation awards; and
(P) All other or greater rights and interests of every nature in the Premises or the Improvements and in the possession or use thereof and income therefrom, whether now owned or hereafter acquired by Borrower.
FOR THE PURPOSE OF SECURING:
(1) The loan (the Loan) evidenced by that certain Promissory Note (such Promissory Note, together with any and all renewals, amendments, modifications, consolidations and extensions thereof, is hereinafter referred to as the Note) of even date with this Mortgage, made by Borrower payable to the order of Lender in the principal face amount of FIFTEEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($15,500,000.00), together with interest as therein provided;
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(2) The full and prompt payment and performance of all of the provisions, agreements, covenants and obligations herein contained and contained in any other agreements, documents or instruments now or hereafter evidencing, securing or otherwise relating to the Debt (as hereinafter defined), the Environmental Indemnity Agreement (as hereinafter defined) and the Indemnity and Guaranty Agreement (as hereinafter defined) (the Note, this Mortgage, and such other agreements, documents and instruments, together with any and all renewals, amendments, extensions and modifications thereof, are hereinafter collectively referred to as the Loan Documents) and the payment of all other sums herein or therein covenanted to be paid;
(3) Any and all additional advances made by Lender to protect or preserve the Property or the lien or security interest created hereby on the Property, or for taxes, assessments or insurance premiums as hereinafter provided or for performance of any of Borrowers obligations hereunder or under the other Loan Documents or for any other purpose provided herein or in the other Loan Documents (whether or not the original Borrower remains the owner of the Property at the time of such advances); and
(4) Any and all other indebtedness now owing or which may hereafter be owing by Borrower to Lender, including, without limitation, all prepayment fees, however and whenever incurred or evidenced, whether express or implied, direct or indirect, absolute or contingent, or due or to become due, and all renewals, modifications, consolidations, replacements and extensions thereof, it being contemplated by Borrower and Lender that Borrower may hereafter become so indebted to Lender.
(All of the sums referred to in Paragraphs (1) through (4) above are herein referred to as the Debt).
TO HAVE AND TO HOLD the Property unto Lender, its successors and assigns forever, and Borrower does hereby bind itself, its successors and assigns, to WARRANT AND FOREVER DEFEND the title to the Property, subject to the Permitted Encumbrances (as hereinafter defined), to Lender against every person whomsoever lawfully claiming or to claim the same or any part thereof;
PROVIDED, HOWEVER, that if the principal and interest and all other sums due or to become due under the Note or under the other Loan Documents, including, without limitation, any prepayment fees required pursuant to the terms of the Note, shall have been paid at the time and in the manner stipulated therein and the Debt shall have been paid and all other covenants contained in the Loan Documents shall have been performed, then, in such case, the liens, security interests, estates and rights granted by this Mortgage shall be satisfied and the estate, right, title and interest of Lender in the Property shall cease, and upon payment to Lender of all costs and expenses incurred for the preparation of the release hereinafter referenced and all recording costs if allowed by law, Lender shall promptly satisfy and release this Mortgage of record and the lien hereof by proper instrument.
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Borrower, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Lender, its successors and assigns, that:
Section 1.2 Title. Borrower has good, marketable and indefeasible fee simple title to the Property, subject only to those matters expressly set forth as exceptions to or subordinate matters in the title insurance policy insuring the lien of this Mortgage delivered as of the date hereof which Lender has agreed to accept, excepting therefrom all preprinted and/or standard exceptions (such items being the Permitted Encumbrances), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, encumber and mortgage its interest in the Property in the manner and form hereby done or intended. Borrower will preserve its interest in and title to the Property and will forever warrant and defend the same to Lender against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest created herein against the claims of all persons and parties whomsoever, subject to the Permitted Encumbrances. This Mortgage creates (i) a valid, perfected lien on the Premises, subject only to Permitted Encumbrances and the liens created by the Loan Documents and (ii) perfected security interests in and to, and perfected collateral assignments of, all personalty, all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances, such other liens as are permitted pursuant to the Loan Documents and the liens created by the Loan Documents. There are no security agreements or financing statements affecting all or any portion of the Property other than (i) as disclosed in writing by Borrower to Lender prior to the date hereof and (ii) the security agreements and financing statements created in favor of Lender. There are no claims for payment for work, labor or materials affecting the Premises which are or may become a lien prior to, or of equal priority with, the liens created by the Loan Documents. None of the Permitted Encumbrances, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by this Mortgage, materially and adversely affect the value of the Premises, impair the use or operations of the Premises or impair Borrowers ability to pay its obligations in a timely manner. The foregoing warranty of title shall survive the foreclosure of this Mortgage
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Section 1.3 No Bankruptcy Filing. No bankruptcy, insolvency proceedings or liquidation of all or a substantial portion of the Property is pending or contemplated by Borrower or, to the best knowledge of Borrower, against Borrower or by or against any endorser or cosigner of the Note or of any portion of the Debt, or any guarantor or indemnitor under any guaranty or indemnity agreement, including, without limitation, that certain Indemnity and Guaranty Agreement, dated the date hereof, executed by Mack-Cali Realty, L.P., a Delaware limited partnership, in favor of Lender (the Guaranty Agreement), executed in connection with the Note or the loan evidenced thereby and secured hereby (an Indemnitor). No petition in bankruptcy has been filed against Borrower or any general partner, manager, sole member, managing member or majority shareholder of Borrower, as applicable (collectively, the Borrower Parties, each a Borrower Party), and neither Borrower Party or any principal of a Borrower Party has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors.
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Section 1.9 ERISA. Borrower (i) has no knowledge of any material liability that has been incurred or is expected to be incurred by Borrower that is or remains unsatisfied for any taxes or penalties with respect to any employee benefit plan, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), or any plan within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the Code) or any other benefit plan (other than a multi-employer plan) maintained, contributed to, or required to be contributed to by Borrower or by any entity that is under the common control with Borrower within the meaning of ERISA Section 4001(a)(14) (collectively, a Plan) or any plan that would be a Plan but for the fact that it is a multi-employer plan within the meaning of ERISA Section 3(37) and (ii) has made and shall continue to make when due all required contributions to all such Plans, if any. Each such Plan, if any, has been and will be administered in compliance with its terms and the applicable provisions of ERISA, the Code and any other applicable Federal or state law and no action shall be taken or fail to be taken that would result in
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the disqualification or loss of the tax-exempt status of any such Plan, if any, intended to be qualified or tax-exempt. The assets of Borrower do not constitute plan assets of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101.
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Section 1.14 Physical Condition. As of the date of this Mortgage, (i) the Property is free from unrepaired damage caused by fire, flood, accident or other casualty, (ii) no part of the Premises or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is any such proceeding pending or, to Borrowers knowledge and belief, threatened or contemplated, (iii) except as may otherwise be disclosed in that certain Property Condition Report (the Property Condition Report) dated May 5, 2006 and prepared by IVI Due Diligence Services, Inc., the Improvements are structurally sound, in good repair and free of defects in materials and workmanship and have been constructed and installed in substantial compliance with the plans and specifications relating thereto, and (iv) all major building systems located within the Improvements, including, without limitation, the heating and air conditioning systems and the electrical and plumbing systems, are in good working order and condition.
Section 1.16 Leases. Borrower has delivered (i) a true, correct and complete schedule (the Rent Roll) of all Leases affecting the Property as of the date hereof, which accurately and completely sets forth in all material respects for each such Lease, the following: the name of the Tenant, the Lease expiration date, extension and renewal provisions, the base rent payable, the security deposit held thereunder and any other material provisions of such Lease and (ii) true, correct and complete copies of all Leases described in the Rent Roll. Each Lease constitutes the legal, valid and binding obligation of Borrower and, to the best of Borrowers knowledge and belief, is enforceable against the Tenant thereof. No default exists, or with the passing of time or the giving of notice or both would exist, under any Lease which would, in the aggregate, have a material adverse effect on Borrower or the Property. No Tenant under any Lease has, as of the date hereof, paid rent more than thirty (30) days in advance, and the rents under such Leases have not been waived, released, or otherwise discharged or compromised. All security deposits required under such Leases have been fully funded and are held by Borrower as permitted by applicable law. All work to be performed by Borrower under the Leases has been substantially performed, all contributions to be made by Borrower to the Tenants thereunder have been made and all other conditions precedent to each such Tenants obligations thereunder have been satisfied. Each Tenant under a Lease has entered into occupancy of the demised premises. To the best of Borrowers knowledge and belief, each Tenant is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors.
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All of the representations and warranties in this Article I and elsewhere in the Loan Documents (i) shall survive for so long as any portion of the Debt remains owing to Lender and (ii) shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.
For the purposes of further securing the Debt and for the protection of the security of this Mortgage, for so long as the Debt or any part thereof remains unpaid, Borrower covenants and agrees as follows:
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All such insurance shall (i) be with insurers fully licensed and authorized to do business in the state within which the Premises is located and who have and maintain a rating of at least (A) A or higher from Standard & Poors and (B) AX or higher from A.M. Best, (ii) contain the complete address of the Premises (or a complete legal description), (iii) be for terms of at least one year, with premium prepaid, and (iv) be subject to the approval of Lender as to insurance companies, amounts, content, forms of policies, method by which premiums are paid and expiration dates, and (v) include a standard, non-contributory, mortgagee clause naming EXACTLY:
Wachovia Bank, National Association,
its Successors and Assigns ATIMA
c/o Wachovia Bank, National Association, as Servicer
P.O. Box 563956
Charlotte, North Carolina 28256-3956
(A) as an additional insured under all liability insurance policies, (B) as the first mortgagee on all property insurance policies and (C) as the loss payee on all loss of rents or loss of business income insurance policies.
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Borrower shall, as of the date hereof, deliver to Lender evidence that said insurance policies have been prepaid as required above and certified copies of such insurance policies and original certificates of insurance signed by an authorized agent of the applicable insurance companies evidencing such insurance satisfactory to Lender. Borrower shall renew all such insurance and deliver to Lender an Acord 28 certificate for proof of commercial property insurance and an Acord 25 certificate for proof of liability insurance, together with such other certificates reasonably requested by Lender. Borrower further agrees that each such insurance policy: (i) shall provide for at least thirty (30) days prior written notice to Lender prior to any policy reduction or cancellation for any reason other than non-payment of premium and at least ten (10) days prior written notice to Lender prior to any cancellation due to non-payment of premium; (ii) shall contain an endorsement or agreement by the insurer that any loss shall be payable to Lender in accordance with the terms of such policy notwithstanding any act or negligence of Borrower which might otherwise result in forfeiture of such insurance; (iii) shall waive all rights of subrogation against Lender; and (iv) may be in the form of a blanket policy provided that, in the event that any such coverage is provided in the form of a blanket policy, Borrower hereby acknowledges and agrees that failure to pay any portion of the premium therefor which is not allocable to the Property or by any other action not relating to the Property which would otherwise permit the issuer thereof to cancel the coverage thereof, would require the Property to be insured by a separate, single-property policy. The blanket policy must properly identify and fully protect the Property as if a separate policy were issued for 100% of Replacement Cost at the time of loss and otherwise meet all of Lenders applicable insurance requirements set forth in this Section 2.3. The delivery to Lender of the insurance policies or the certificates of insurance as provided above shall constitute an assignment of all proceeds payable under such insurance policies relating to the Property by Borrower to Lender as further security for the Debt. In the event of foreclosure of this Mortgage, or other transfer of title to the Property in extinguishment in whole or in part of the Debt, all right, title and interest of Borrower in and to all proceeds payable under such policies then in force concerning the Property shall thereupon vest in the purchaser at such foreclosure, or in Lender or other transferee in the event of such other transfer of title. Approval of any insurance by Lender shall not be a representation of the solvency of any insurer or the sufficiency of any amount of insurance. In the event Borrower fails to provide, maintain, keep in force or deliver and furnish to Lender the policies of insurance required by this Mortgage or evidence of their renewal as required herein, Lender may, but shall not be obligated to, procure such insurance and Borrower shall pay all amounts advanced by Lender therefor, together with interest thereon at the Default Interest Rate from and after the date advanced by Lender until actually repaid by Borrower, promptly upon demand by Lender. Any amounts so advanced by Lender, together with interest thereon, shall be secured by this Mortgage and by all of the other Loan Documents securing all or any part of the Debt. Lender shall not be responsible for nor incur any liability for the insolvency of the insurer or other failure of the insurer to perform, even though Lender has caused the insurance to be placed with the insurer after failure of Borrower to furnish such insurance. Borrower shall not obtain insurance for the Property in addition to that required by Lender without the prior written consent of Lender, which consent will not be unreasonably withheld provided that (i) Lender is a named insured on such insurance, (ii) Lender receives complete copies of all policies evidencing such insurance, and (iii) such insurance complies with all of the applicable requirements set forth herein.
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Lender shall, solely for the purposes of such restoration or repair, advance so much of the remainder of such sums as may be required for such restoration or repair, and any funds deposited by Borrower therefor, to Borrower in the manner and upon such terms and conditions as would be required by a prudent interim construction lender, including, but not limited to, the prior approval by Lender of plans and specifications, contractors and form of construction contracts and the furnishing to Lender of permits, bonds, lien waivers, invoices, receipts and affidavits from contractors and subcontractors, in form and substance satisfactory to Lender in its discretion, with any remainder being applied by Lender for payment of the Debt in whatever order Lender directs in its absolute sole discretion, or at the discretion of Lender, the same may be paid, either in whole or in part, to, or for the benefit of, Borrower for such purposes as Lender shall designate in its discretion.
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Any reduction in the Debt resulting from Lenders application of any sums received by it hereunder shall take effect only when Lender actually receives such sums and elects to apply such sums to the Debt and, in any event, the unpaid portion of the Debt shall remain in full force and effect and Borrower shall not be excused in the payment thereof. Partial payments received by Lender, as described in the preceding sentence, shall be applied first to the final payment due under the Note and thereafter to installments due under the Note in the inverse order of their due date. If Borrower elects or Lender directs Borrower to restore or repair the Property after the occurrence of a casualty or partial taking of the Property as provided above, Borrower shall promptly and diligently, at Borrowers sole cost and expense and regardless of whether the insurance proceeds or condemnation award, as appropriate, shall be sufficient for the purpose, restore, repair, replace and rebuild the Property as nearly as possible to its value, condition and character immediately prior to such casualty or partial taking in accordance with the foregoing provisions and Borrower shall pay to Lender all costs and expenses of Lender incurred in administering said rebuilding, restoration or repair, provided that Lender makes such proceeds or award available for such purpose. Borrower agrees to execute and deliver from time to time such further instruments as may be requested by Lender to confirm the foregoing assignment to Lender of any award, damage, insurance proceeds, payment or other compensation. Lender is hereby irrevocably constituted and appointed the attorney-in-fact of Borrower (which power of attorney shall be irrevocable so long as any portion of the Debt is outstanding, shall be deemed coupled with an interest, shall survive the voluntary or involuntary dissolution of Borrower and shall not be affected by any disability or incapacity suffered by Borrower subsequent to the date hereof), with full power of substitution, subject to the terms of this Section, to settle for, collect and receive any such awards, damages, insurance proceeds, payments or other compensation from the parties or authorities making the same, to appear in and prosecute any proceedings therefor and to give receipts and acquittances therefor.
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If any of the aforementioned materials are not furnished to Lender within the applicable time periods, are not prepared in accordance with generally accepted accounting principles or Lender is dissatisfied with the form of any of the foregoing and has notified Borrower of its dissatisfaction, in addition to any other rights and remedies of Lender contained herein and provided Lender has given Borrower at least ten (10) days notice of such failure and opportunity to cure, (i) Borrower shall pay to Lender upon demand, at Lenders option and in its sole discretion, an amount equal to $2,500 per reporting period, and (ii) Lender shall have the right, but not the obligation, to obtain the same by means of an audit by an independent certified public accountant selected by Lender, in which event Borrower agrees to pay, or to reimburse Lender for, any expense of such audit and further agrees to provide all necessary information to said accountant and to otherwise cooperate in the making of such audit.
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As used in this Section 2.29, Independent Director shall mean a duly appointed member of the board of directors of any SPE Corporation or board of managers or of a single member Delaware limited liability company which is an SPE who is provided by a nationally-recognized company that provides professional independent directors who shall not have been at the time of initial appointment or at any time while serving as an Independent Director, and may not have been at any time (i) a stockholder, director, officer, employee, partner, attorney or counsel of such SPE Corporation, single member Delaware limited liability company which is an SPE, Borrower or any affiliate of any of them, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPE Corporation, single member Delaware limited liability company which is an SPE, Borrower or any affiliate of any of them, (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. As used in this definition, the term control means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise. As used herein, the term affiliate shall mean: (1) any person or entity directly or indirectly owning, controlling or holding with power to vote ten percent (10%) or more of the outstanding voting securities or interests of such other person or entity; (2) any person or entity ten percent (10%) or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by such other person or entity; (3) any person or entity directly or indirectly controlling, controlled by or under common control with such other person or entity; (4) any officer, director or partner of such other person or entity; (5) if such other person or entity is an
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officer, director or partner, any company for which such person or entity acts in any such capacity; and (6) any close relative or spouse of the specified person.
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[THE BALANCE OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, Borrower has executed this Mortgage on the day and year first written above.
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BORROWER: |
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5 BECKER SPE LLC, |
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a Delaware limited liability company |
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By: |
/s/ Mitchell E. Hersh |
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Name: Mitchell E. Hersh |
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Title: President and Chief Executive Officer |
STATE OF New York
SS:
COUNTY OF New York
BE IT REMEMBERED that on the 9th day of May, 2006, Mitchell E. Hersh personally came before me, and this person acknowledged under oath, to my satisfaction, that he is the President and Chief Executive Officer of 5 Becker SPE LLC, a Delaware limited liability company, the entity named in this document, and this document was signed and delivered by the entity as its voluntary act duly authorized by a proper resolution of the limited liability company.
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/s/ Marian J. Abbatepaolo |
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Marian J. Abbatepaolo |
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Notary Public, State of New York |
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01AB4807522 |
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Certificate Filed in New York County |
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Commission Expires November 30, 2006 |
73
EXHIBIT A
Legal Description
All that tract and parcel of land situate, lying and
being in the Borough of Roseland, County of Essex, State of New Jersey and more
particularly described as follows:
Beginning at a point in the southerly sideline of Becker Farm Road, said point
being the northwesterly corner of Lot 13 in Block 30-1 as shown on a map
entitled, Amended Final Map, Bellemead Development Corporation and filed in
the Essex County Registers Office on 5/19/81 as Filed Map No. 3463, said point
being distant 664.84 feet westerly along same from the extended intersection of
the southerly sideline of Becker Farm Road with the westerly sideline of ADP
Boulevard; thence
(1) Along the Westerly line of said Lot 13, South 39 degrees 37 minutes 49 seconds West 439.55 feet to the northerly line of Lot 12 Block 30-1 as shown on the above mentioned map; thence
(2) Along the westerly line of said Lot 12 North 48 degrees 45 minutes 58 seconds West, 32.97 feet to the northwest corner thereof; thence
(3) Along the westerly line of said Lot 12 South 41 degrees 14 minutes 02 seconds West, 429.83 feet to the northerly line of Lot 2 Block 30-1 as shown on the above mentioned map; thence
(4) Along the northerly line of said Lot 2 North 48 degrees 45 minutes 58 seconds West, 420.10 feet to the southeast corner of Lot 10 Block 30-1 as shown on the above mentioned map; thence
(5) Along the easterly line of said Lot 10, North 39 degrees 37 minutes 49 seconds East, 733.60 feet to the southerly line of Becker Farm Road; thence
(6) Along said side line on a curve curving to the left having a radius of 717.16 feet an arc distance of 65.48 feet to a point of tangency; thence
(7) Still along said sideline South 65 degrees 32 minutes 11 seconds East 415.49 feet to the point and place of beginning.
Also known as Lot 11 Block 30-1 as shown on a map entitled Amended Final Map, Bellemead Development Corporation, Borough of Roseland, Essex County, New Jersey recorded 5/19/81 in the Essex County Registers Office as Filed Map No. 3463.
This description is in accordance with a survey prepared by Earl N. Strom, PLS for International Land Services, Inc., dated 2/28/06; last revised 4/11/06 job number 06-02-013:007A.
FOR INFORMATIONAL PURPOSES ONLY:
In compliance with Chapter 157, Laws of 1977, premises herein is Lot 11 in Block 30.01 on the Tax Map of the Borough of Roseland, County of Essex, State of New Jersey.
A-1
Exhibit B
(Outstanding TILC Tenants and Applicable TILC Amounts)
1. Walder (as defined Section 3.8) |
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$ |
152,205.09 |
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2. The Margolis Law Firm, P.A. |
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$ |
4,066.58 |
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3. Toby Solomon, LLC |
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$ |
1,350.26 |
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A-1
EXHIBIT C
(Free Rent Tenant / Monthly Allocated Amount)
1. Walder Lease (Allocated Free Rent: $112,866.08)
· Months: 2/1/2007 - 3/31/2007; Allocated Amount: $38,708.00
· Months: 2/1/2008 - 2/29/2008; Allocated Amount: $35,450.08
A-1