Exhibit 10.19
NEW JERSEY
NMLIC LOAN NO. C 331903 / C 332558
PLIC LOAN NO. D 750948 / D 752837
RECORDING REQUESTED BY
WHEN RECORDED MAIL TO
The Northwestern Mutual Life Ins. Co.
000 Xxxx Xxxxxxxxx Xxxxxx - Xx X00XX
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
SPACE ABOVE THIS LINE FOR RECORDER'S USE
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This instrument was prepared by Xxxxx X. Xxxxx, Esq., XxXxxxxx & English, LLP,
Four Gateway Center, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000,
Attorneys for The Northwestern Mutual Life Insurance Company, 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000 and Principal Life Insurance Company, 000 Xxxx
Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000.
AMENDED AND RESTATED
MORTGAGE AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED MORTGAGE and SECURITY AGREEMENT (the
"Mortgage"), made as of the 18th day of May, 2001 between CALI HARBORSIDE (FEE)
ASSOCIATES L.P., a New Jersey limited partnership, CAL-HARBOR II & III URBAN
RENEWAL ASSOCIATES L.P., a New Jersey limited partnership, CAL-HARBOR IV URBAN
RENEWAL ASSOCIATES L.P., a New Jersey limited partnership and CAL-HARBOR VI
URBAN RENEWAL ASSOCIATES L.P., a New Jersey limited partnership, whose mailing
address is c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 (each, a "Mortgagor," and, collectively, "Mortgagors"), and THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation, 000 X.
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 and PRINCIPAL LIFE INSURANCE
COMPANY, an Iowa corporation, formerly known as Principal Mutual Life Insurance
Company, 000 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000(together, "Mortgagee"):
RECITALS
X. Xxxxxxxxx made a loan (the "1995 Loan") as evidenced by two
Promissory Notes dated as of December 5, 1995 executed by Plaza One Exchange
Place Limited Partnership, a New Jersey limited partnership, Harborside Exchange
Place Limited
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Partnership, a New Jersey limited partnership, Harborside Urban Renewal
Associates L.P., a New Jersey limited partnership, Plaza II and III Urban
Renewal Associates L.P., a New Jersey limited partnership, Plaza IV Urban
Renewal Associates L.P., a New Jersey limited partnership, Plaza V Urban Renewal
Associates L.P., a New Jersey limited partnership and Plaza VI Urban Renewal
Associates L.P., a New Jersey limited partnership (herein collectively called,
"Original Mortgagors") in the aggregate sum of One Hundred Ten Million Dollars
($110,000,000.00) (together, the "Plaza II/III Notes").
B. In connection with the execution of the Plaza II/III Notes, and as
security therefor, Original Mortgagors executed and delivered a Mortgage and
Security Agreement in favor of Mortgagee dated as of December 5, 1995 (the
"Original Mortgage Date"), securing an indebtedness in the original amount of
$110,000,000.00 which was recorded on December 7, 1995 in Mortgage Book 5805,
Page 240 ET SEQ. in the records of Xxxxxx County, New Jersey (the "Original
Mortgage"), which Original Mortgage encumbers the property described therein
(the "Property").
C. On or about October 29, 1996, Xxxxxxxxxx acquired the Property from
Original Mortgagors and assumed all of Original Mortgagors' covenants,
conditions and obligations under the Loan Documents (as defined in the Original
Mortgage), pursuant to that certain Assignment and Assumption Agreement dated as
of November 1, 1996 and recorded November 6, 1996 in Deed Book 5063, Page 116 ET
SEQ. in the records of Xxxxxx County, New Jersey (the "Assignment").
D. On or about May 26, 1999, the Original Mortgage Date was amended
pursuant to that certain Amendment of Terms of Lien Instrument by and between
Mortgagors and Lenders dated as of May 26, 1999 and recorded July 6, 2000 in
Mortgage Book 0473, Page 142 ET SEQ. in the records of Xxxxxx County, New
Jersey.
E. Since the Original Mortgage and, as of the date hereof, with respect
to the Plaza V Land (defined as both that certain fee and leasehold interest in
a 2.21-acre (96,422 square feet) parcel of land located in Jersey City, Xxxxxx
County, New Jersey owned by Cali Harborside and leased to Cal-Harbor V Urban
Renewal Associates L.P., a New Jersey limited partnership, being known as Lot 2
in Block 10 on the City of Jersey City Tax Assessment Map), Mortgagee has
released various parcels from the lien of the Original Mortgage, so that, as of
the date hereof, the property described on the attached Schedule "A" remains as
security for the 1995 Loan.
F. Contemporaneously herewith, Xxxxxxxxxx are executing in favor of
Mortgagee two Promissory Notes in the aggregate sum of Seventy Million Dollars
($70,000,000.00) (together, the "2001 Notes"), which 2001 Notes are to be
secured by the Original Mortgage, as amended and restated herein.
X. Xxxxxxxxxx and Mortgagee desire to amend, and restate the Original
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Mortgage in accordance with the terms and provisions that are hereafter set
forth.
NOW THEREFORE in consideration of the foregoing facts and covenants
contained herein and other valuable consideration, receipt of which is hereby
acknowledged, Mortgagors and Mortgagee hereby agree as follows:
1. The foregoing recitals are true and correct and constitute a
material part of the Mortgage.
2. Xxxxxxxxxx hereby ratify, acknowledge and confirm the mortgaging and
conveyancing of the Property to Mortgagee. Nothing herein contained shall affect
the priority of the Original Mortgage, as amended and restated herein, over
other liens, charges, encumbrances or conveyances nor shall it release or change
the liability of any party who may now or hereafter be liable, primarily or
secondarily, under or on account of the Plaza II/III Notes.
3. The Original Mortgage is hereby amended, restated and modified to
read, in its entirety, as follows:
WITNESSETH, that Xxxxxxxxxx, in consideration of the indebtedness
herein mentioned, do hereby grant, convey, mortgage and warrant unto Mortgagee
forever, subject to the provision hereof entitled "PARTIAL RELEASES", with power
of sale and right of entry and possession, the following property (herein
referred to as the "Mortgaged Property"):
A. The land in the City of Jersey City, County of Xxxxxx, State
of New Jersey, described in Schedule "A-1" through "A-4"
attached hereto and incorporated herein (the "Land") and all
appurtenances thereto; and
B. All buildings and improvements now existing or hereafter
erected thereon, all waters and water rights, all engines,
boilers, elevators and machinery, all heating apparatus,
electrical equipment, air-conditioning equipment, water and
gas fixtures, and all other fixtures of every description
belonging to Mortgagors which are or may be placed or used
upon the Land or attached to the buildings or improvements,
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.
Except as otherwise set forth in this Mortgage, Mortgagors agree not to sell,
transfer, assign or remove anything described in paragraph B above now or
hereafter located on the Land without prior written consent from Mortgagee
unless (i) such action does not constitute a sale or removal of any buildings or
improvements or the sale or transfer of waters or water rights, and (ii) such
action results in the substitution or replacement with
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similar items of equal or greater value.
Without limiting the foregoing grants, Mortgagors hereby pledge to Mortgagee,
and grant to Mortgagee a security interest in, all of Mortgagors' present and
hereafter acquired right, title and interest in and to any and all
C. Cash and other funds now or at any time hereafter deposited by
or for Mortgagors on account of tax, special assessment,
replacement or other reserves 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
D. All surveys, soils reports, environmental reports, 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 Mortgaged Property; and
E. Except as otherwise set forth in this Mortgage, all present
and future rights to condemnation awards, insurance proceeds
or other proceeds at any time payable to or received by
Xxxxxxxxxx on account of the Mortgaged Property or any of the
foregoing personal property; and
F. All of Mortgagors' right, title and interest in and to that
certain Reciprocal Operation and Easement Agreement dated as
of December 4, 1995 and recorded December 7, 1995 in Deed Book
4936, Page 001 ET SEQ. in the Office of the Xxxxxx County
Register, as amended by that certain First Amendment to
Reciprocal Operation and Easement Agreement dated as of
October 7, 1996 and recorded October 18, 1996 in Deed Book
5055, Page 164 ET SEQ. in the Office of the Xxxxxx County
Register, as further amended by that certain Second Amendment
to the Reciprocal Operation and Easement Agreement for The
Harborside Financial Center dated as of July 18, 2000 and
recorded January 10, 2001 in Deed Book 5739, Page 284 ET SEQ.
in the Office of the Xxxxxx County Register (collectively, the
"ROEA"); and
G. All of Mortgagors' right, title and interest in and to that
certain Declaration of Parking Easement dated as of December
20, 1999 and recorded January 28, 2000 in Deed Book 5562, Page
142 ET SEQ. in the Office of the Xxxxxx County Register, as
amended concurrently herewith (together, the "Parking
Easement"); and
H. All of Mortgagors' right, title and interest as lessor in and
to all leases of the Mortgaged Property, or any part thereof,
heretofore or hereafter made and entered into by Mortgagors
during the life of this Mortgage or any
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extension or renewal thereof and all rents, issues, proceeds
and profits accruing and to accrue from the Mortgaged Property
(which are pledged primarily and on a parity with the real
estate and not secondarily); and
I. The right, in case of foreclosure hereunder of the Mortgaged
Property, for Mortgagee to take and use the name by which the
buildings and all other improvements situated on the Mortgaged
Property are commonly known and the right to manage and
operate the said buildings under any such name and variants
thereof.
All personal property hereinabove described is hereinafter referred to as the
"Personal Property".
If any of the Mortgaged Property is of a nature that a security
interest therein can be perfected under the Uniform Commercial Code, this
instrument shall constitute a security agreement and financing statement if
permitted by applicable law and Mortgagors agree to join with Mortgagee in the
execution of any financing statements and to execute any other instruments that
may be required 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 Mortgagee of the indebtedness evidenced by
two (2) promissory notes dated as of December 4, 1995 (and any restatements,
extensions or renewals thereof and any amendments thereto) executed by Plaza One
Exchange Place Limited Partnership, a New Jersey limited partnership, Harborside
Exchange Place Limited Partnership, a New Jersey limited partnership, Harborside
Urban Renewal Associates L.P., a New Jersey limited partnership, Plaza II and
III Urban Renewal Associates L.P., a New Jersey limited partnership, Plaza IV
Urban Renewal Associates L.P., a New Jersey limited partnership, Plaza V Urban
Renewal Associates L.P., a New Jersey limited partnership and Plaza VI Urban
Renewal Associates L.P., a New Jersey limited partnership for the aggregate
principal sum of ONE HUNDRED TEN MILLION DOLLARS ($110,000,000.00), with final
maturity no later than January 1, 2006 (the "Maturity Date") and with interest
as therein expressed (such promissory notes, as such instruments may be amended,
restated, renewed and extended, and the indebtedness evidenced thereby, are
hereinafter referred to respectively as the "1995 Notes"), which 1995 Notes were
assumed by Xxxxxxxxxx pursuant to the Assignment; and
(b) Payment to the order of Mortgagee of the indebtedness evidenced by
two (2) promissory notes of even date herewith (and any restatements, extensions
or renewals thereof and any amendments thereto) executed by Mortgagors for the
aggregate principal sum of SEVENTY MILLION DOLLARS ($70,000,000.00), with final
maturity no later than the Maturity Date and with interest as therein expressed
(such promissory notes, as such instruments may be amended, restated, renewed
and extended, and the indebtedness evidenced thereby, are hereinafter referred
to respectively as the "2001 Notes"); and
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(c) Payment of all sums that may become due Mortgagee under the
provisions of, and the performance of each agreement of Mortgagors contained in,
the Loan Documents.
The 1995 Notes and the 2001 Notes are sometimes hereinafter referred to
as the "Notes". As used herein, "Loan Documents" means this instrument, the
Notes, that certain Amended and Restated Absolute Assignment of Leases and Rents
of even date herewith between Mortgagors and Mortgagee (the "Absolute
Assignment"), that certain Certification of Borrower of even date herewith and
any other agreement specifically entered into by and between Mortgagors and
Mortgagee in connection with the indebtedness evidenced by the Notes, except for
any separate certain environmental indemnity agreement, as any of the foregoing
may be amended from time to time.
As used in this Mortgage, the following capitalized terms shall have
the respective meanings:
"Affiliate" shall mean, with respect to any individual, group of
individuals, corporation, partnership, trust, limited liability company or other
entity (each, a "Person"), any corporation, partnership, trust, limited
liability company or other entity in which such Person owns, directly or
indirectly, more than thirty-three percent (33%) of the partnership interests,
stock or other ownership or beneficial interests, and any individual, group of
individuals, corporation, partnership, trust, limited liability company or other
entity which, directly or indirectly, controls, is controlled by, or is under
common control with, such Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" or "under
common control with") means the possession by any individual or entity, directly
or indirectly, of the power to direct or cause the direction of management and
policies of such Person or entity, whether through the ownership of voting
securities, by contract or otherwise;
"AICPA Lease" shall mean that certain lease between Harborside Exchange
Place Limited Partnership, a New Jersey limited partnership ("HEP"), as original
lessor, and American Institute of Certified Public Accountants, a District of
Columbia corporation, as lessee, dated May 15, 1991, as amended by First
Amendment of Lease dated February 2, 1994, and pursuant to that certain
Assignment and Assumption of Leases and Security Deposits dated as of November
4, 1996 (the "Lease Assignment") HEP assigned all of its right, title and
interest in and to the AICPA Lease to Cal-Harbor II & III Urban Renewal
Associates L.P. ("Cal-Harbor II & III");
"Annual Rent" for each tenant lease shall mean, for the applicable
period, the greater of (i) the annual base rent payable by the tenant under its
lease at the time of the applicable calculation, or (ii) the "Deemed Effective
Rent"; PROVIDED, HOWEVER, that for the purposes of satisfying the requirements
set forth in the provision hereof entitled "INSURANCE", the Annual Rent for
leases which are executed after the occurrence of the applicable Triggering
Event shall be the lower of (y) the initial annual base rent payable
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under the lease after the expiration of any free rent period, or (z) the Deemed
Effective Rent (as hereinafter defined), as adjusted pursuant hereto. For
purposes of this definition, the term "Deemed Effective Rent" shall mean an
amount equal to the quotient obtained by dividing (a) the sum of the total base
rent payable by the tenant over the primary term of its lease, by (b) the number
of years in the primary term of the lease, inclusive of any free rent period. In
calculating the Deemed Effective Rent, there shall be deducted the following
with respect to the applicable lease: the annual amortized cost(s) (amortized
over the primary term of the lease at an imputed interest rate of ten percent
[10%] per annum) of any tenant finish expenditure payable (or reimbursable) by
the Mortgagors in excess of Market Rate T.I. (as hereinafter defined), rental
obligations assumed by the Mortgagors on other leases by the tenant, and moving
expenses of the tenant which are reimbursable by the Mortgagors. As used herein,
the term "Market Rate T.I." shall mean the amount of tenant finish expenditures
payable (or reimbursable) by landlords in fair market leases at the time of the
execution of the applicable lease;
"Applicable Leases" shall mean leases to tenants approved by Mortgagee
not in default and with terms of at least three (3) years remaining after the
date of a Triggering Event. Leases in existence as of the date hereof shall be
deemed approved for all other provisions of this Mortgage. Leases which are on
the standard form reviewed by Mortgagee and are at market rates at the time
entered into shall be deemed approved for purposes of this definition;
"Bank of Tokyo Lease" shall mean that certain lease between HEP, as
original lessor, and BTM Information Services, Inc. (formerly known as BOT
Information Services, Inc.), a New Jersey corporation, as lessee, dated December
30, 1988, as amended by First Amendment to Agreement of Lease dated July 21,
1995, and, pursuant to the Lease Assignment, HEP assigned all of its right,
title and interest in and to the Bank of Tokyo Lease to Cal-Harbor II & III;
"Common Area Land" shall mean both the fee and leasehold interest in a
3.38-acre (147,062 square feet) parcel of land located in Jersey City, Xxxxxx
County, New Jersey being known as Lot 4 in Block 10 as shown on the City of
Jersey City Tax Assessment Map owned by Cali Harborside (Fee) Associates L.P., a
New Jersey limited partnership ("Cali Harborside") and leased to Cal-Harbor II &
III, and as more fully described in Schedule "A-1" attached hereto and
incorporated herein;
"Xxxx Xxxxxx Lease" shall mean that certain lease between HEP and Plaza
II and III Urban Renewal Associates L.P., as original lessor, and Xxxx Xxxxxx
Trust Company, a New Jersey corporation, as lessee, dated March 19, 1992, as
amended by Amendment of Lease dated December 15, 1992, Second Amendment to Lease
dated June 5, 1995 and Third Lease Amendment dated January 18, 2000 and,
pursuant to the Lease Assignment, original lessor assigned all of its right,
title and interest in and to the Xxxx Xxxxxx Lease to Cal-Harbor II & III;
"DLJ Lease" shall mean that certain lease between Cal-Harbor II & III,
as lessor,
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and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and CSFB Direct, Inc.
(formerly known as DLJdirect Holdings Inc.), each a Delaware corporation, as
lessee, dated April 12, 1999, as amended by Possession Letter dated May 20,
1999, First Amendment to Lease dated September 30, 1999, Second Lease Amendment
dated September 30, 1999, Third Lease Amendment dated December 15, 1999, Fourth
Lease Amendment dated March 29, 2000 and Fifth Lease Amendment dated April 24,
2001;
"Dow Xxxxx Lease" shall mean that certain lease between Cal Harbor II &
III, as lessor, and Dow Xxxxx & Company, Inc., a Delaware corporation, as
lessee, dated December 21, 1999, as amended by Commencement Letter dated August
15, 2000;
"Harborside Financial Center" shall mean the Mortgaged Property, the
North Pier Land, the South Pier Land and the piers which are adjacent to the
Mortgaged Property and which are owned by Cali Harborside;
"Immediate Default" shall mean any of the following events shall have
occurred:
(A) any Mortgagor or any general partner of any Mortgagor shall be
dissolved (except if such dissolution shall occur in connection with a sale or
release of a Section of the Property pursuant to the provision hereof entitled
"PARTIAL RELEASES"), or a decree or order for relief shall be entered by a court
having jurisdiction in respect of any Mortgagor or any general partner of any
Mortgagor in a voluntary or involuntary case under the Federal Bankruptcy Code
as now or hereinafter constituted, or any Mortgagor or any general partner of
any Mortgagor shall file a voluntary petition in bankruptcy or for
reorganization or an arrangement or any composition, readjustment, liquidation,
dissolution or similar relief pursuant to any similar present or future state or
federal bankruptcy law, or shall be adjudicated a bankrupt or become insolvent,
or shall commit any act of bankruptcy, as defined in such law, or shall take any
action in furtherance of any of the foregoing; or
(B) a petition or answer shall be filed proposing the adjudication of
any Mortgagor or any general partner of any Mortgagor as a bankrupt or its
reorganization or arrangement, or any composition, readjustment, liquidation,
dissolution or similar relief pursuant to any present or future state or federal
bankruptcy law or similar law, and any Mortgagor or any general partner of any
Mortgagor shall consent to the filing thereof, or such petition or answer shall
not be discharged within sixty (60) days after the filing thereof; or
(C) by the order of a court of competent jurisdiction, a receiver,
trustee or liquidator of any Section of the Property or of any Mortgagor or any
general partner of any Mortgagor or of substantially all of its assets shall be
appointed and shall not be discharged or dismissed within sixty (60) days after
such appointment, or if any Mortgagor or any general partner of any Mortgagor
shall consent or acquiesce in such appointment; or
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(D) any representation or warranty made by any Mortgagor in the Loan
Documents shall prove to be willfully untrue or inaccurate in any material
respect;
"Lewco Securities Lease" shall mean that certain lease between HEP and
Plaza II and III Urban Renewal Associates L.P., as original lessor, and Lewco
Securities Corp., a Delaware corporation, as lessee, dated May 31, 1994, as
amended by First Amendment to Lease dated December 6, 1996, Second Amendment to
Lease dated January 15, 1998 and Third Amendment to Lease dated February 2, 1999
and, pursuant to that certain Lease Assignment, original lessor assigned all of
its right, title and interest in and to the Lewco Securities Lease to Cal-Harbor
II & III;
"Major Leases" shall mean, collectively, the AICPA Lease, the Bank of
Tokyo Lease, the Xxxx Xxxxxx Lease, the DLJ Lease, the Dow Xxxxx Lease and the
Lewco Securities Lease;
"Master Plan" shall mean the development plan for Harborside Financial
Center approved by resolution of the Planning Board of the City of Jersey City
on December 1, 1987, as part of the total site plan of the State of New Jersey
Waterfront Development Project;
"Most Recently Auctioned United States Treasury Obligations" shall mean
the U.S. Treasury bonds, notes and bills with maturities of 30 years, 10 years,
5 years, 3 years, 2 years and 1 year which, as of the date the prepayment fee is
calculated, were most recently auctioned by the United States Treasury;
"North Pier Land" shall mean both the fee and leasehold interest in an
approximate 2.724-acre parcel of land located in Jersey City, Xxxxxx County, New
Jersey owned by Cali Harborside and leased to Cal-Harbor No. Pier Urban Renewal
Associates L.P., a New Jersey limited partnership;
"Operating Expenses" shall mean, for a fiscal period, all expenses paid
or to be paid during such period in connection with the operation and
maintenance of Plaza II/III, determined on an accrual basis, in accordance with
generally accepted accounting principles including, without limitation (i) all
payments required to be made pursuant to management agreements, (ii) real estate
taxes, assessments and special assessments, (iii) costs and expenses related to
utilities, security, administration and maintenance of Plaza II/III, and (iv)
the PRO RATA share of Plaza II/III of General Common Area Costs (as defined in,
and calculated pursuant to, the ROEA). Notwithstanding the foregoing, Operating
Expenses shall not include (1) depreciation or amortization, (2) any expenses
which, in accordance with generally accepted accounting principles, should be
capitalized, (3) the principal of and interest on the Notes, (4) corporate
administrative expenses of any Mortgagor, which expenses do not directly involve
the operation or maintenance of Plaza II/III, including, without limitation,
legal and accounting expenses, and the costs of appraisals, (5) costs and
expenses related to tenant improvements or leasing commissions required to be
paid or reimbursed under any leases, and (6) any item
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of expense which would otherwise be considered within Operating Expenses
pursuant to the provisions above but is paid directly by any tenant (expenses
paid by Xxxxxxxxxx and reimbursed to Mortgagors by any tenant shall also be
excluded from Operating Expenses);
"Partial Prepayment Fee" shall mean an amount equal to the product of
(i) a fraction, the numerator of which is any amount of principal being prepaid
on the Note and the denominator of which is the principal balance of the Note
immediately prior to such prepayment, and (ii) the prepayment privilege fee
which would be payable if there were a full prepayment of the Note at such time;
"Permitted Encumbrances" shall mean:
(i) liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings diligently conducted and
with respect to which adequate reserves are being maintained
in accordance with generally accepted accounting principles;
(ii) statutory liens of carriers, warehousemen, mechanics,
materialmen and other liens imposed by law created in the
ordinary course of business for amounts not yet due or which
are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate bonds
have been posted;
(iii) liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation,
unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the repayment of
borrowed money);
(iv) deposits made in the ordinary course of business to secure
liability to insurance carriers;
(v) liens arising from filing UCC-1 financing statements
regarding leases of Personal Property by Xxxxxxxxxx in the
ordinary course of business;
(vi) those title exceptions set forth in Schedule "B" of that
certain commitment for title insurance issued by First
American Title Insurance Company (commitment no. TS-14641) by
its agent, Title Services of New Jersey, Inc. dated February
28, 2001 and re-dated to the date hereof, those matters
depicted on the ALTA/ACSM Land Title Survey of Harborside
Financial Center prepared by Xxxx Xxxxxxxxx Associates, Inc.
(Xxxxxx X. Xxxxxx, Xx., P.E. & L.S.) dated April 16, 2001,
revised through April 24, 2001 and
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zoning and similar restrictions;
(vii) liens and judgments which have been or will be bonded or
released of record within forty-five (45) days after the
Mortgagors have received noticed of the filing of such lien or
judgment;
(viii) liens in favor of the Mortgagee under this Mortgage and the
other Loan Documents and the liens of the Subordinate
Mortgages (as hereinafter defined);
(ix) all existing leases affecting the Mortgaged Property and all
future leases affecting the Mortgaged Property that do not
violate the provisions of this Mortgage or the Absolute
Assignment; and
(x) those other title matters and exceptions approved in advance
by Mortgagee;
"Permitted Uses" means that the Plaza IV Land, the Plaza V Land, the
Plaza VI/VII Land, the North Pier Land and the South Pier Land may be solely
developed for the following uses; PROVIDED, HOWEVER, that any such development
is consistent with the general bulk and massing guidelines described in the
Master Plan and in accordance with regulatory and governmental requirements, as
modified from time to time:
(i) the North Pier Land and the South Pier Land may be developed
solely for retail, office, marina/sailing, residential, parks
and promenades, hotel use, associated parking and any other
uses approved under the Master Plan; and
(ii) the Plaza IV Land and the Plaza VI/VII Land may be developed
solely for retail, office, surface parking, residential and
parking garages and any other uses approved under the Master
Plan;
"Plaza II/III" shall mean the Plaza II/III Land, the Plaza II/III
Improvements and all easements and other appurtenances thereto;
"Plaza II/III Improvements" shall mean a 1,403,484 square foot office
building plus 37,020 square feet of retail promenade, landscaping, paved
walkways and driveways;
"Plaza II/III Land" shall mean both the fee and leasehold interest in a
6.04-acre (263,262 square feet) parcel of land located at 00 Xxxxxxxx Xxxxx,
Xxxxxx Xxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx owned by Cali Harborside and leased to
Cal-Harbor II & III, being known as Lot 6 in Block 10 on the City of Jersey City
Tax Assessment Map, and more fully described in Schedule "A-2" attached hereto
and incorporated herein;
"Plaza IV Land" shall mean both the fee and leasehold interest in a
1.34 acre
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(58,305 square feet) parcel of land located in Jersey City, Xxxxxx County, New
Jersey owned by Cali Harborside and leased to Cal-Harbor IV Urban Renewal
Associates L.P., being known as Lot 1 in Block 10 on the City of Jersey City Tax
Assessment Map, and more fully described in Schedule "A-3" attached hereto and
incorporated herein;
"Plaza VI/VII Land" shall mean both the fee and leasehold interest in a
3.30-acre (143,891 square feet) parcel of land located in Jersey City, Xxxxxx
County, New Jersey owned by Cali Harborside and leased to Cal-Harbor VI Urban
Renewal Associates L.P., being known as Lot 16 in Block 10 on the City of Jersey
City Tax Assessment Map, and more fully described in Schedule "A-4" attached
hereto and incorporated herein;
"Projected Plaza II/III Operating Income Available for Debt Service
from Applicable Leases" shall mean (i) projected gross annual revenue (excluding
parking revenue) in accordance with generally accepted accounting principles
subject to adjustment for Annual Rent (including projected operating expense
reimbursements from tenants assuming the eight percent [8.0%] increase in
Operating Expenses set forth in subparagraph (ii) hereof) from Applicable Leases
from the leasing of not more than 1,300,000 square feet of space in Plaza II/III
for the first full fiscal year following a Triggering Event, less (ii) 1.08
multiplied by the Operating Expenses attributable to Plaza II/III for the last
fiscal year preceding a Triggering Event, less (iii) any increase in the real
estate or in-lieu taxes on Plaza II/III over the real estate or in-lieu taxes on
Plaza II/III for the year preceding a Triggering Event, to the extent such
increase in taxes is not payable directly by the tenants of Plaza II/III. The
Projected Plaza II/III Operating Income Available for Debt Service from
Applicable Leases shall be calculated in a manner reasonably acceptable to
Mortgagee consistent with the foregoing definition. The Projected Plaza II/III
Operating Income Available for Debt Service from Applicable Leases may be
calculated in such other manner as the Mortgagee and Mortgagors may mutually
agree;
"Projected Plaza II/III Debt Service Coverage from Applicable Leases"
shall mean a number calculated by dividing Projected Plaza II/III Operating
Income Available for Debt Service from Applicable Leases for the first full
fiscal year following a Triggering Event by the debt service under the Notes
during the first full fiscal year following such Triggering Event;
"Property" shall mean the Mortgaged Property, which is, collectively,
Plaza II/III, the Common Area Land, the Plaza IV Land and the Plaza VI/VII Land
(each of Plaza II/III, the Common Area Land, the Plaza IV Land and the Plaza
VI/VII Land may hereinafter be referred to as a "Section of the Property");
"South Pier Land" shall mean both the fee and leasehold interest in an
approximate 1.7079-acre parcel of land located in Jersey City, Xxxxxx County,
New Jersey owned by Cali Harborside and leased to Cal-Harbor So. Pier Urban
Renewal Associates L.P., a New Jersey limited partnership;
12
"Triggering Event" shall mean, the completion of the restoration of all
or any portion of the Mortgaged Property following a casualty.
TO PROTECT THE SECURITY OF THIS MORTGAGE, Xxxxxxxxxx COVENANT AND AGREE:
PAYMENT OF DEBT. Xxxxxxxxxx agree to pay the indebtedness hereby secured (the
"Indebtedness") promptly and in full compliance with the terms of the Loan
Documents.
OWNERSHIP. Xxxxxxxxxx represent that they own, either in fee interest or in
leasehold interest, as the case may be, the Mortgaged Property and have good and
lawful right to convey the same and that the Mortgaged Property is free and
clear from any and all encumbrances whatsoever, except for Permitted
Encumbrances.
MAINTENANCE OF PROPERTY AND COMPLIANCE WITH LAWS. Mortgagors agree 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 Mortgaged Property; and to permit
Mortgagee, subject to the rights of tenants, to enter at all reasonable times
and upon reasonable notice (except in the case of an emergency) for the purpose
of inspection and of conducting, in a reasonable and proper manner, such tests
as Mortgagee determines to be reasonably necessary in order to monitor
Mortgagors' compliance with applicable laws and regulations regarding hazardous
materials affecting the Mortgaged Property. Notwithstanding the foregoing,
Xxxxxxxxxx shall have the right to contest in good faith by appropriate
proceedings the applicability of any such laws, rules and regulations affecting
the Mortgaged Property. During any such contest, Xxxxxxxxxx shall not be deemed
in default hereunder.
INSURANCE. Mortgagors shall at all times keep in force: (i) property insurance
insuring all buildings and improvements which are now or hereafter become a part
of the Mortgaged Property for perils covered by an all-risk insurance policy
containing both replacement cost and agreed amount endorsements or options for
the estimated replacement cost of the improvements with a deductible of not
greater than Twenty-five Thousand Dollars ($25,000.00); (ii) commercial general
liability insurance naming Mortgagee as additional insured protecting Mortgagors
and Mortgagee against liability for bodily injury or property damage occurring
in, on or adjacent to the Mortgaged Property in commercially reasonable amounts,
with a combined single limit of not less than One Million Dollars
($1,000,000.00) per occurrence and excess umbrella liability insurance of not
less than Fifty Million Dollars ($50,000,000.00); (iii) boiler and machinery
insurance if the Mortgaged Property has a boiler and/or machinery; (iv) rental
value insurance for the perils specified herein for one hundred percent (100%)
of the rents (including operating expenses, real estate taxes, assessments and
insurance costs which are lessee's liability) for a period of twelve (12) months
or business interruption insurance for one hundred percent (100%) of the annual
gross earnings from business derived at the Mortgaged Property; and (v)
insurance against all other hazards as may be reasonably required by
13
Mortgagee including, without limitation, insurance against loss or damage by
flood and earthquake. All insurance shall be in form, content and amounts
approved by Mortgagee and written by an insurance company or companies rated
"A", class size "VIII" or better in the most current issue of Best's Insurance
Reports and which is licensed to do business in the state in which the Mortgaged
Property is located and domiciled in the United States or a governmental agency
or instrumentality approved by Mortgagee. The policies for such insurance shall
have attached thereto standard mortgagee clauses in favor of and permitting
Mortgagee to collect any and all proceeds payable thereunder and shall include a
thirty (30) day (except for nonpayment of premium, in which case a ten [10] day)
notice of cancellation clause in favor of Mortgagee. All policies or
certificates of insurance shall be delivered to and held by Mortgagee as further
security for payment of the Notes and any other obligations arising under the
Loan Documents, with evidence of renewal coverage delivered to Mortgagee at
least thirty (30) days before the expiration date of any policy. Mortgagors
shall not carry separate insurance, concurrent in kind or form and contributing
in the event of loss, with any insurance required herein if the effect of such
insurance will be to reduce the amount of insurance required to be carried by
Mortgagors hereunder. Mortgagors agree to keep the policies therefor, properly
endorsed, on deposit with Mortgagee; that insurance loss proceeds (less expenses
of collection) shall, at Mortgagee's option, be applied on the Indebtedness,
whether due or not, or to the restoration of the Mortgaged 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 privilege fee shall be due thereon if, at the time of such
prepayment, there exists no Event of Default.
Notwithstanding the foregoing provision, Mortgagee agrees that if the insurance
loss proceeds 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 expenses of collection) shall be applied
to restoration of the Mortgaged Property to its condition prior to the casualty,
subject to satisfaction of the following conditions:
(a) At the time of casualty, there shall exist no (i) Non-Monetary
Default (as hereinafter defined) under the Loan Documents with
respect to which Mortgagee shall have given Mortgagors notice
pursuant to the NOTICE OF DEFAULT provision herein, or (ii)
Monetary Default (as hereinafter defined), or (iii) Event of
Default (as hereinafter defined) and the continuance thereof,
and if there shall occur any Event of Default and the
continuance thereof after the date of the casualty, Mortgagee
shall have no further obligation to release insurance loss
proceeds hereunder.
(b) The casualty insurer has not denied liability for payment of
insurance loss proceeds as a result of any act, neglect, use
or occupancy of the Mortgaged Property by any Mortgagor or any
tenant of the Mortgaged Property.
(c) Mortgagee shall be satisfied that all insurance loss proceeds
so held,
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together with supplemental funds received from Mortgagors
(which will not be used until all insurance proceeds have been
exhausted), shall be sufficient to complete the restoration of
the Mortgaged Property. Any remaining insurance loss proceeds
after the completion of the restoration of the Mortgaged
Property may, at the option of Mortgagee, be applied on the
Indebtedness, whether or not due, or be released to
Mortgagors.
(d) 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 Mortgaged Property resulted from
the casualty.
(e) Mortgagee shall release casualty insurance proceeds as
restoration of the Mortgaged 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 default under the Loan Documents with respect to
which Mortgagee shall have given Mortgagors notice pursuant to
the NOTICE OF DEFAULT provision herein. If the estimated cost
of restoration exceeds $250,000.00, (i) the drawings and
specifications for the restoration shall be approved by
Mortgagee in writing prior to commencement of the restoration,
(ii) Mortgagors shall provide suitable completion and
performance bonds naming Mortgagee as additional obligee and
builder's all-risk insurance, and (iii) each Mortgagee shall
receive an administration fee equal to the lesser of one-half
of one percent (0.5%) of the cost of restoration or One
Hundred Thousand Dollars ($100,000.00), prior to any release
of any proceeds.
(f) Prior to each release of funds, Xxxxxxxxxx shall obtain for
the benefit of Mortgagee a continuation title search and
written report stating that there are no liens arising from
the restoration.
(g) Mortgagors shall pay all 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.
(h) All reciprocal easement and operating agreements benefiting
any Section of the Property shall remain in full force and
effect between the parties thereto on and after restoration of
the Mortgaged Property.
(i) Mortgagee shall be satisfied that if Plaza II/III is the
damaged Section of the Property, the Projected Plaza II/III
Debt Service Coverage from Applicable Leases shall be greater
than or equal to 1.15; or
15
(j) All Major Leases and all leases in effect at the time of the
casualty with tenants who have entered into Mortgagee's form
of Acknowledgment, Subordination, Non-Disturbance and
Attornment Agreement or similar agreement shall remain in full
force and each tenant thereunder shall be obligated, or shall
elect, to continue the lease term at full rental (subject only
to abatement, if any, during any period in which the Mortgaged
Property or portion thereof shall not be used and occupied by
such tenant as a result of the casualty) and shall execute an
estoppel certificate confirming that its lease is in full
force and effect and that no defaults have occurred and are
continuing thereunder.
(k) All payments under the Indebtedness shall be full recourse
obligations of Mortgagors commencing on the date of the
casualty and continuing until such time as the restoration is
completed in accordance with the provisions hereof.
(1) Mortgagors shall satisfy such other conditions to the release
of proceeds in Mortgagee's discretion as would be customarily
required by a lender on projects such as the Mortgaged
Property in the New York metropolitan area.
In the event that the Projected Plaza II/III Debt Service Coverage from
Applicable Leases does not meet the required ratio in connection with the
release of insurance loss proceeds pursuant to subparagraph (i) above,
Mortgagors shall have the right to make a partial prepayment of the Notes, to
the extent necessary in order to meet the debt service coverage required under
subparagraph (i) above, together with the Partial Prepayment Fee. In the event
of such partial prepayment of principal, the amount of the debt service payments
due on each of the Notes being prepaid shall be adjusted to an amount which is
sufficient to amortize the then unpaid principal balance of such of the Notes at
the applicable interest rate during the then remaining amortization period.
CONDEMNATION. Except as otherwise set forth herein, Mortgagors hereby assign to
Mortgagee (i) any award and any other proceeds resulting from damage to, or the
taking of, all or any portion of the Mortgaged Property in connection with
condemnation proceedings or the exercise of any power of eminent domain, and
(ii) the proceeds from any sale or transfer in lieu thereof; and grant Mortgagee
the right, at its option, to apply such award and other proceeds (less expenses
of collection) on the Indebtedness (including any prepayment privilege fee),
whether due or not, or to the restoration of the Mortgaged Property or to
release all or any portion thereof to Mortgagors, but such application or
release shall not cure or waive any default under any of the Loan Documents.
Notwithstanding the foregoing, except with respect to a Total Taking (as
hereinafter defined), Mortgagee agrees that the condemnation award shall be
applied to the
16
restoration and rebuilding of the Mortgaged Property. In such event, Mortgagors
shall, whether or not the net condemnation award shall be sufficient for the
purpose, at Mortgagors' sole cost and expense, promptly commence and complete,
or cause to be commenced and completed, a restoration of the Mortgaged Property
which restoration shall be performed in a good and workmanlike manner and in
compliance with all requirements of law so that the Mortgaged Property will be
substantially equal in general utility to its utility prior to such taking,
subject to unavoidable delays and except to the extent made practically
impossible by any reduction in area caused by such taking; PROVIDED, HOWEVER,
that in case of a taking for temporary use, Mortgagors shall not be required to
effect a restoration until such taking is terminated. As used herein, "Total
Taking" shall mean a taking of all or substantially all of the Mortgaged
Property and the Personal Property (other than for temporary use).
The proceeds of the condemnation award shall be paid out in the same manner as
provided in this Mortgage for the payment of insurance proceeds in reimbursement
of the costs of rebuilding and restoration; PROVIDED, HOWEVER, that for purposes
of this sentence, subparagraph (b) of such section shall not apply and
"insurance proceeds" or any similar term shall be deemed to mean "condemnation
awards". Any proceeds remaining after payment of the costs of restoring and
rebuilding shall, at the option of Mortgagee, either be applied on account of
the Indebtedness secured hereby, PROVIDED, HOWEVER, that if no Event of Default
has occurred and Mortgagee has not otherwise previously accelerated the whole or
any part of the Indebtedness secured hereby, such reduction shall be without
prepayment privilege fee, or be paid to Mortgagors.
TAXES AND SPECIAL ASSESSMENTS. Xxxxxxxxxx agree to pay before delinquency all
taxes and special assessments of any kind (excluding income, franchise, gift,
estate or inheritance taxes) that have been or may be levied or assessed against
the Mortgaged Property, this Mortgage, the Notes or the Indebtedness, or upon
the interest of the Mortgagee in the Mortgaged Property, this Mortgage, the
Notes or the Indebtedness, and to procure and deliver to Mortgagee the official
receipt of the proper officer showing timely payment of all such taxes and
assessments; PROVIDED, HOWEVER, that Mortgagors shall not be required to pay any
such taxes or special assessments if the amount, applicability or validity
thereof shall currently be contested in good faith by appropriate proceedings
and with respect to which adequate reserves are being maintained in accordance
with generally accepted accounting principles. During any such contest,
Xxxxxxxxxx shall not be deemed in default hereunder.
PERSONAL PROPERTY. With respect to the Personal Property, Xxxxxxxxxx hereby
represent, warrant and covenant as follows:
(a) Except for the security interest granted hereby, Mortgagors are,
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 lien, security
interest, encumbrance or adverse claim thereon of any kind whatsoever, except
for Permitted Encumbrances.
17
Mortgagors 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) Except as otherwise provided above, Mortgagors shall not lease to
others, sell, convey or in any manner transfer the Personal Property, unless the
removed item is removed temporarily for maintenance or repair or, if removed
permanently, is replaced by an article of equal suitability and value, as
reasonably determined by Mortgagee, owned by Mortgagors, free and clear of any
lien or security interest, except for Permitted Encumbrances.
(c) Mortgagors maintain a place of business in care of the address set
forth above in this Mortgage, and Mortgagors shall immediately notify Mortgagee
in writing of any change in its place of business.
(d) At the request of Mortgagee, Mortgagors shall join Mortgagee in
executing one or more financing statements and continuations and amendments
thereof pursuant to the Uniform Commercial Code of the jurisdiction in which the
Mortgaged Property is located in form satisfactory to Mortgagee, and Mortgagors
shall pay the cost of filing the same in all public offices wherever filing is
deemed by Mortgagee to be necessary or desirable.
OTHER LIENS. Xxxxxxxxxx agree to keep the Mortgaged Property free from all other
mortgage liens and from all liens prior to the lien created hereby, except for
Permitted Encumbrances. Except as set forth below, the creation of any other
mortgage lien, whether or not prior to the lien created hereby, the creation of
any prior lien, judgment lien or mechanic's lien on the Mortgaged Property
(other than Permitted Encumbrances) or the assignment or pledge by Mortgagors of
their revocable license to collect, use and enjoy rents and profits from the
Mortgaged Property, shall constitute a default under the terms of this Mortgage.
The term "mortgage" includes a mortgage, deed of trust, deed to secure debt or
any other security interest in the Mortgaged Property.
Notwithstanding the foregoing, upon written notice to Mortgagee, Xxxxxxxxxx may
proceed to contest in good faith and by appropriate proceedings any mechanics
liens, tax liens or judgment liens after the initial advance of funds under the
2001 Notes with respect to the Mortgaged Property or the Personal Property,
provided funds sufficient to satisfy the contested amount have been deposited in
an escrow account satisfactory to Mortgagee.
CROSS-DEFAULT AND CROSS-LIEN. A default under one or both of the 1995 Notes
shall constitute a default under the 2001 Notes, and a default under one or both
of the 2001 Notes shall constitute a default under the 1995 Notes. Xxxxxxxxxx
have executed and delivered to Mortgagee statements executed by all of the
partners of each Mortgagor (both limited and general) stating that they have
authorized the pledge of such Xxxxxxxxx's property for the debt of the other
Mortgagors, that there exists mutual consideration for such pledge and that they
understand that a default by one or more of
18
the other Mortgagors will result in a default under the mortgage into which such
Xxxxxxxxx is entering.
ENVIRONMENTAL. A. The Mortgagors have not used in the past, nor do the
Mortgagors intend to use in the future, the Mortgaged Property for the principal
or primary purpose of refining, producing, storing, handling, transferring,
processing or transporting "hazardous substances", as such term is defined in
N.J.S.A. 58:10-23.11b(k), in violation of applicable laws.
B. To the best of Xxxxxxxxxx' knowledge, after due inquiry and
investigation, no lien has been attached to any revenues or the Mortgaged
Property as a result of the chief executive of the New Jersey Spill Compensation
Fund expending monies from said fund to pay for "cleanup and removal costs", as
such term is defined in N.J.S.A. 58:10-23.11b(d), arising from an intentional
or unintentional action or omission of Mortgagors.
C. If there shall be constituted a lien against the Mortgaged Property,
pursuant to and in accordance with the provisions of N.J.S.A. 58:10-23.11f(f) as
a result of the chief executive of the New Jersey Spill Compensation Fund having
expended monies from said fund to pay for "cleanup and removal costs" and/or
"direct and indirect damages", as such terms are used in N.J.S.A. 58:10-23.11g,
arising from an intentional or unintentional action or omission of the
Mortgagors resulting in the releasing, spilling, pumping, pouring, emitting,
emptying or dumping of "hazardous substances", as such term is defined in
N.J.S.A. 58:10-23.11(b)k, into waters of the State of New Jersey or onto lands
from which it might flow or drain into said waters, Mortgagors shall, within
thirty (30) days from the date that Mortgagors are given notice that the lien
has been placed against the Mortgaged Property or within such shorter period of
time if the State of New Jersey shall have commenced steps to cause the
Mortgaged Property to be sold pursuant to the lien, either: (i) pay the claim
and remove the lien from the Mortgaged Property; or (ii) furnish (a) a bond
satisfactory to Mortgagee and the issuer of Mortgagee's title policy with
respect to the Mortgaged Property in the amount of the claim out of which the
lien arises, (b) a cash deposit in the amount of the claim out of which the lien
arises, or (c) other security reasonably satisfactory to Mortgagee in an amount
sufficient to discharge the claim out of which the lien arises.
D. No Mortgagor has ever used the Mortgaged Property to generate,
manufacture, refine, transport, treat, store, handle or dispose of "hazardous
substances" or "hazardous wastes", as such terms are defined in N.J.S.A.
13:1K-8, except for DE MINIMUS quantities of janitorial and office supplies used
in the ordinary course of business, and Mortgagors do not intend to use the
Mortgaged Property for such purposes.
E. In connection with the purchase of the Mortgaged Property, if
acquired on or after January 1, 1984, Xxxxxxxxxx obtained from the New Jersey
Department of Environmental Protection either: (i) a letter of
non-applicability; or (ii) if the Environmental Cleanup Responsibility Act
applied, the approval of a negative declaration affidavit certifying that either
no environmental remediation was required at the Mortgaged Property or a letter
confirming that all required environmental remediation
19
was completed pursuant to the provisions of the New Jersey Industrial Site
Recovery Act or its predecessor (the Environmental Cleanup Responsibility Act)
(N.J.S.A. 13: 1K-ET SEQ.).
X. Xxxxxxxxxx hereby grant to Mortgagee and its agents, attorneys,
employees, consultants, contractors and assigns, an irrevocable license and
authorization to enter upon and inspect the Mortgaged Property and all
facilities located thereon at reasonable times on reasonable notice (except in
the case of an emergency), and subject to the rights of tenants, and the right
to conduct a Phase I environmental audit after the occurrence of an Event of
Default or in the event of any sale or conveyance of this Mortgage.
G. In the event that there has been an Event of Default or an event
which, with the passage of time or the giving of notice, or both, would
constitute an Event of Default or Mortgagee has formed a reasonable belief,
based on its inspection of the Mortgaged Property or other factors known to it,
that "hazardous substances" may be present on the Mortgaged Property in
violation of applicable law, then Mortgagors shall perform such tests at
Mortgagee's request including, without limitation, subsurface testing, soil and
ground water testing, and other tests which may physically invade the Mortgaged
Property or facilities from a consultant and pursuant to a scope of work
approved by Mortgagee (collectively, the "Tests"), as Mortgagee, in its sole
discretion, determines as necessary to (i) investigate the condition of the
Mortgaged Property, (ii) protect the security interests created under this
Mortgage, or (iii) determine compliance with all laws relating to "hazardous
substances", the provisions of this Mortgage and other matters relating thereto,
and Xxxxxxxxxx shall provide true and accurate written copies of the results of
the Tests to Mortgagee upon receipt of the results. In the event that Mortgagors
fail to conduct the Tests required by Mortgagee and to provide Mortgagee with
the results within sixty (60) days of such request, or such additional time as
Mortgagee shall agree in writing in its sole discretion, or if Mortgagee is not
reasonably satisfied with the results of any of the Tests or of any Phase I
environmental audit, then Mortgagors grant to Mortgagee and its agents,
attorneys, employees, consultants, contractors and assigns, an irrevocable
license and authorization to conduct the Tests necessary in Mortgagee's sole
discretion to accomplish (i) through (iii) in this subparagraph, subject to the
rights of tenants and at reasonable times and upon reasonable notice (except in
the case of an emergency).
LEASES. Xxxxxxxxxx represent and warrant that there is no assignment or pledge
of any leases of, or rentals or income from, the Mortgaged Property in effect
other than that certain Absolute Assignment of Leases and Rents dated December
4, 1995, by and among Mortgagors and Mortgagee, as amended and restated in its
entirety by an Amended and Restated Absolute Assignment of Leases and Rents of
even date herewith; and covenant that, until the Indebtedness is fully paid,
they, except as otherwise permitted herein, (i) shall not make any such
assignment or pledge to anyone other than Mortgagee, (ii) shall not, unless
expressly permitted under another provision in this Mortgage, make any
assignment or pledge to anyone of their hereinafter described revocable license
to collect, use and enjoy the rents and profits, (iii) shall not consent to a
cancellation or
20
accept the surrender of or agree to a release or reduction of the liability of
any party to either (a) any Major Lease, or (b) any of said leases in excess of
50,000 rentable square feet and having at the time an unexpired term of more
than two (2) years (including any unexercised renewal option(s)) (a "Primary
Lease"), without the prior written approval of Mortgagee, unless said lease is
in material monetary default, in which event Mortgagee's consent to a requested
cancellation shall not be unreasonably withheld and shall be deemed to be given
if it fails to respond to Xxxxxxxxx's request within ten (10) business days of
receipt of such request, or (iv) shall not modify or alter either (a) any Major
Lease, or (b) any Primary Lease without the consent of Mortgagee, which consent
shall not be unreasonably withheld or delayed.
In consideration of the Indebtedness, Xxxxxxxxxx, pursuant to the Absolute
Assignment, have assigned to Mortgagee all of Mortgagors' right, title and
interest in said leases, including Mortgagors' right to collect, use and enjoy
the rents and profits therefrom. Mortgagee has, in the Absolute Assignment,
granted to Mortgagors a license to collect, use and enjoy said rents and
profits. Such license is revocable by Mortgagee pursuant to the terms of the
Absolute Assignment.
COSTS FEES AND EXPENSES. Xxxxxxxxxx agree to appear in and defend any action or
proceeding purporting to affect the security hereof or the rights or powers of
Mortgagee hereunder; to pay all costs and expenses, including the cost of
obtaining evidence of title and reasonable attorneys' fees, incurred in
connection with any such action or proceeding; and to pay any and all actual and
reasonable attorneys' fees and expenses of collection and enforcement in the
event some or all of the Notes are placed in the hands of an attorney for
collection, enforcement of any of the Loan Documents is undertaken or suit is
brought thereon.
FAILURE OF MORTGAGORS TO ACT. If Mortgagors fail to make any payment or
following reasonable delivery of notice following Mortgagor's failure to do any
act as herein provided (except such notice shall not be required in the event of
an emergency or if Mortgagor's failure to act materially adversely affects the
security interest of the Mortgagee), Mortgagee may, without obligation so to do,
without notice to or demand upon Mortgagors and without releasing Mortgagors
from any obligation hereof: (i) make any payment or do any act as herein
provided in such manner and to such extent as Mortgagee may deem necessary to
protect the security hereof, Mortgagee being authorized to enter upon the
Mortgaged Property for such purpose at all reasonable times, upon reasonable
notice (except in the case of an emergency) and subject to the rights of
tenants; (ii) appear in and defend any action or proceeding purporting to affect
the security hereof, or the rights or powers of Mortgagee; (iii) subject to
Permitted Encumbrances, pay, purchase, contest or compromise any encumbrance,
charge or lien which, in the judgment of Mortgagee, appears to be prior or
superior hereto; and (iv) in exercising any such powers, pay necessary expenses,
employ counsel and pay its reasonable fees. Sums so expended shall be payable by
Xxxxxxxxxx immediately upon demand with interest from the date of expenditure at
the Default Rate (as defined in the 1995 Notes or the 2001 Notes), provided
Mortgagee has provided Mortgagors with notice
21
within ten (10) days of such expenditure (otherwise, interest shall accrue at
the Default Rate from the date Mortgagors are notified of such expenditure). All
sums so expended by Mortgagee and the interest thereon shall be included in the
Indebtedness and secured by the lien of this Mortgage. In making any payment
hereby authorized relating to taxes or assessments or for the purchase,
discharge, compromise or settlement of any prior lien, Mortgagee may make such
payment according to any bill, statement or estimate secured from the
appropriate public office without inquiry into the accuracy thereof or into the
validity of any tax, assessment, sale, forfeiture, tax lien or title or claim
thereof or without inquiry as to the validity or amount of any claim for lien
which may be asserted.
EVENT OF DEFAULT. Any Immediate Default shall automatically constitute an "Event
of Default". Subject to the provision hereof entitled "NOTICE OF DEFAULT", any
default by Mortgagors in making any required payment of the Indebtedness or any
other default in any provision, covenant, agreement or warranty contained in any
of the Loan Documents shall, except as provided in the two immediately
succeeding paragraphs, constitute an "Event of Default". Further, any default
beyond applicable grace and cure periods, if any, and which is not waived (such
waiver to apply only to the Financial Agreements [hereinafter described])
(subject to extension as may be granted by the party which has notified
Mortgagors of such default) under either (i) any of the Financial Agreements
with the City of Jersey City described in Exhibit "A" attached hereto and
incorporated herein, or (ii) any of the ground leases affecting the Mortgaged
Property shall constitute an "Event of Default". Further, any violation of the
Permitted Uses shall constitute an "Event of Default".
NOTICE OF DEFAULT. A default in any payment required in the 1995 Notes, the 2001
Notes or any other Loan Document (a "Monetary Default") shall not constitute an
Event of Default unless Mortgagee shall have given a written notice of such
Monetary Default to Mortgagors and Mortgagors shall not have cured such Monetary
Default by payment of all amounts in default (including payment of interest at
the Default Rate, as defined in the 1995 Notes or the 2001 Notes, from the date
of default to the date of cure on amounts owed to Mortgagee) within five (5)
business days after the date on which Mortgagee shall have given such notice to
Mortgagors.
Any default other than a Monetary Default or an Immediate Default under the 1995
Notes the 2001 Notes or under any other Loan Document (a "Non-Monetary Default")
shall not constitute an Event of Default unless Mortgagee shall have given a
written notice of such Non-Monetary Default to Mortgagors and Mortgagors shall
not have cured such Non-Monetary Default within thirty (30) days after the date
on which Mortgagee shall have given such notice of default to Mortgagors (or, if
the Non-Monetary Default is not curable within thirty (30) days, Mortgagors
shall not have diligently undertaken and continued to pursue the curing of such
Non-Monetary Default and deposited an amount sufficient to cure such
Non-Monetary Default in an escrow account satisfactory to Mortgagee).
For purposes of this provision, written notice may be delivered personally or
sent by
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certified mail or reputable courier service with charges prepaid. Notice shall
be deemed given on the date received. Any notice which is rejected or refused by
Xxxxxxxxxx shall be deemed received as of the date of attempted delivery.
In no event shall the notice and cure period provisions recited above constitute
a grace period for the purposes of commencing interest at the Default Rate (as
defined in the 1995 Notes or the 2001 Notes).
APPOINTMENT OF RECEIVER. Upon commencement of any proceeding to enforce any
right under this Mortgage, including foreclosure thereof, Mortgagee (without
limitation or restriction by any present or future law, without regard to the
solvency or insolvency at that time of any party liable for the payment of the
Indebtedness, without regard to the then value of the Mortgaged Property,
whether or not there exists a threat of imminent harm, waste or loss to the
Mortgaged Property and or whether the same shall then be occupied by the owner
of the equity of redemption as a homestead) shall have the absolute right to the
appointment of a receiver of the Mortgaged Property and of the revenues, rents,
profits and other income therefrom, and said receiver shall have (in addition to
such other powers as the court making such appointment may confer) full power to
collect all such income and, after paying all necessary expenses of such
receivership and of operation, maintenance and repair of said Mortgaged
Property, to apply the balance to the payment of any of the Indebtedness then
due.
ASSIGNMENT OF LEASES. A. Mortgagors hereby assign to Mortgagee, directly and
absolutely, and not merely collaterally, the rents, issues, profits, royalties
and payments payable under any lease of the Mortgaged Property, or portion
thereof, including any oil, gas or mineral lease, subject only to a license
granted by Mortgagee to Mortgagors with respect thereto to collect, receive and
retain all such rents, issues, profits, royalties and payments payable under any
lease of the Mortgaged Property prior to the occurrence of an Event of Default
hereunder and the continuance thereof. Upon the occurrence of any Event of
Default, the license granted in the immediately preceding sentence shall cease
and terminate, with or without any additional notice, action or proceeding or
the intervention of a receiver appointed by a court. Mortgagee, without regard
to the adequacy of any security for the Indebtedness hereby secured, shall be
entitled to (a) collect such rents, issues, profits, royalties and payments and
apply the same as more particularly set forth in this paragraph, all without
taking possession of the Mortgaged Property, or (b) enter and take possession of
the Mortgaged Property, or any part thereof, in person, by agent, or by a
receiver to be appointed by the court and to sue for or otherwise collect such
rents, issues, profits, royalties and payments. Mortgagee may apply any such
rents, issues, profits, royalties and payments so collected, less costs and
expenses of operation and collection, including reasonable attorneys' fees and
costs and reasonable attorneys' fees and costs on appeal, upon any principal,
interest and all other indebtedness secured hereby, at Mortgagee's option and in
such order as Mortgagee may determine and, if such costs and expenses and
reasonable attorneys' fees and costs shall exceed the amount collected, the
excess shall be immediately due and payable. The collection of such rents,
issues, profits, royalties and payments and the application thereof
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as aforesaid shall not cure or waive any Event of Default or notice of default
hereunder or invalidate any act done pursuant to such notice, except to the
extent any such Event of Default is fully cured. Failure or discontinuance of
Mortgagee at any time, or from time to time, to collect any such moneys shall
not impair in any manner the subsequent enforcement by Mortgagee of the right,
power and authority herein conferred on Mortgagee. Nothing contained herein,
including the exercise of any right, power or authority herein granted to
Mortgagee, shall be, or be construed to be, an affirmation by Mortgagee of any
tenancy, lease or option, or an assumption of liability under, or the
subordination of the lien or charge or this Mortgage to any such tenancy, lease
or option. Mortgagors hereby agree that, in the event Mortgagee exercises its
rights as in this paragraph provided, Mortgagors waive any right to compensation
for the use of Mortgagors' furniture, furnishings or equipment in the Mortgaged
Property for the period such assignment of rents or receivership is in effect,
it being understood that the rents, issues, profits, royalties and payments
derived from the use of any such items shall be applied to Mortgagors'
obligations hereunder as above provided.
X. Xxxxxxxxxx have executed and delivered to Mortgagee the Absolute
Assignment assigning to Mortgagee, directly and absolutely, and not merely
collaterally, the interest of Mortgagors as lessor under the existing leases of
the Mortgaged Property, as well as all other leases which may hereafter be made
in respect of the Mortgaged Property, and the rents and other income arising
thereunder and from the use of the Mortgaged Property. The Absolute Assignment
grants to Mortgagee specific rights and remedies in respect of said leases and
governs the collection of rents and other income thereunder and from the use of
the Mortgaged Property, and such rights and remedies so granted shall be
cumulative of those granted herein. Mortgagee acknowledges that the Absolute
Assignment grants Mortgagors a license to collect the rents, issues, profits,
royalties and payments payable under any lease of the Mortgaged Property, which
license is revocable only upon the occurrence of an Event of Default.
C. Mortgagors shall keep and perform all terms, conditions and
covenants required to be performed by them as lessors under the aforesaid
leases; shall promptly advise Mortgagee in writing of any claim of default by
Xxxxxxxxxx made by a lessee under any Major Lease or of any default thereunder
by a lessee; and shall promptly provide Mortgagee with a copy of any notice of
default or other notice served upon Mortgagors by any such lessee.
FORECLOSURE. Upon the occurrence of an Event of Default, the entire unpaid
Indebtedness shall, at the option of Mortgagee, become immediately due and
payable for all purposes without any notice or demand, except as required by
law, (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO
EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Mortgagee may, in
addition to exercising any rights it may have with respect to the Personal
Property under the Uniform Commercial Code of the jurisdiction in which the
Mortgaged Property is located, institute proceedings in any court of competent
jurisdiction to foreclose this instrument as a mortgage, or to enforce any of
the covenants
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hereof, or Mortgagee may, either personally or by agent or attorney-in-fact,
enter upon and take possession of the Mortgaged Property and may manage, rent or
lease the Mortgaged Property or any portion thereof upon such terms as Mortgagee
may deem expedient, and collect, receive and receipt for all rentals and other
income therefrom and apply the sums so received as hereinafter provided in case
of sale. Mortgagee is hereby further authorized and empowered, as agent or
attorney-in-fact, either after or without such entry, to sell and dispose of the
Mortgaged Property EN MASSE or in separate parcels (as Mortgagee may think
best), and all the right, title and interest of Mortgagors therein, by
advertisement or in any manner provided by the laws of the jurisdiction in which
the Mortgaged Property is located, (MORTGAGORS HEREBY EXPRESSLY WAIVE ANY RIGHT
TO A HEARING PRIOR TO SUCH SALE), and to issue, execute and deliver a deed of
conveyance, all as then may be provided by law; and Mortgagee shall, out of the
proceeds or avails of such sale, after first paying and retaining all fees,
charges, costs of advertising the Mortgaged Property and of making said sale,
and attorneys' fees as herein provided, apply such proceeds to the Indebtedness,
including all sums advanced or expended by Mortgagee or the legal holder of the
Indebtedness, with interest from date of advance or expenditure at the Default
Rate (provided Mortgagee has provided Mortgagors with notice within ten (10)
days of such expenditure [otherwise, interest shall accrue at the Default Rate
from the date Mortgagors are notified of such expenditure]) (as defined in the
1995 Notes or the 2001 Notes), rendering the excess, if any, as provided by law;
such sale or sales and said deed or deeds so made shall be a perpetual bar, both
in law and equity, against Xxxxxxxxxx, the heirs, successors and assigns of
Xxxxxxxxxx, and all other persons claiming the Mortgaged Property aforesaid, or
any part thereof, by, from, through or under Mortgagors. The legal holder of the
Indebtedness may purchase the Mortgaged Property or any part thereof, and it
shall not be obligatory upon any purchaser at any such sale to see to the
application of the purchase money.
DUE ON SALE. The present ownership and management of the Mortgaged Property is a
material consideration to Mortgagee in making the loan secured by this Mortgage
and, except as specifically provided hereby, none of the Mortgagors shall: (i)
convey title to all or any part of the Mortgaged Property; (ii) enter into any
contract to convey (land contract installment sales contract/contract for deed),
title to all or any part of the Mortgaged Property which gives a purchaser
possession of, or income from, the Mortgaged Property prior to a transfer of
title to all or any part of the Mortgaged Property ("Contract to Convey"); or
(iii) cause or permit a Change in the Proportionate Ownership of any of the
Mortgagors (as hereinafter defined). Except if resulting from the death or legal
incompetency of any individual, any conveyance, entering into a Contract to
Convey or Change in the Proportionate Ownership of any of the Mortgagors shall
constitute a default under the terms of this Mortgage.
For purposes of this Mortgage, a "Change in the Proportionate Ownership of any
of the Mortgagors" means any conveyance, assignment or transfer resulting in
Xxxx-Xxxx Realty Corporation ("MCRC") or Xxxx-Xxxx Realty, L.P. ("MCRLP"), or
both MCRC or MCRLP, owning, directly or indirectly (including through ownership
of intermediate entities), less than a one hundred percent (100%) interest in
any of the Mortgagors;
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notwithstanding the foregoing, however, MCRC and/or MCRLP may convey, assign or
transfer and otherwise may cause or permit the conveyance, assignment or
transfer of up to a forty-nine percent (49%) interest in any Mortgagor provided
that MCRC or MCRLP (either individually or collectively): (i) owns, directly or
indirectly (including through ownership of intermediate entities), no less than
a fifty-one percent (51%) interest in any Mortgagor; (ii) is, or controls,
directly or indirectly, the entity or entities that is (are) the general
partner(s) of such Mortgagor (for purposes of this provision only, "control"
means the ownership of at least a fifty-one percent (51%) interest in the entity
or entities that is (are) the general partner(s) of such Mortgagor); and (iii)
acknowledges in writing, at the time of any Change in the Proportionate
Ownership of any of the Mortgagors, that MCRC or MCRLP remains an "insider" of
such Mortgagor, as defined in the United States Bankruptcy Code, and Mortgagee
determines to its reasonable satisfaction that MCRC or MCRLP remains such an
"insider". In addition to the foregoing, and notwithstanding anything to the
contrary, any transfer, sale, distribution, redemption, issuance, exchange or
other disposition of the stock of MCRC or any units of MCRLP (or any successor
entity of MCRC and/or MCRLP), any merger, consolidation or other similar type of
transaction involving MCRC and/or MCRLP (or any successor entity of MCRC and/or
MCRLP), or any other transaction undertaken, or caused to be undertaken by MCRC
and/or MCRLP to preserve the REIT status of MCRC (or its successor entity) shall
not constitute a Change in the Proportionate Ownership of any of the Mortgagors
for any purpose of this Mortgage (even if a "Change in the Proportionate
Ownership of any of the Mortgagors", in fact, results from any such transaction
or transactions), and shall be disregarded for all purposes of this Mortgage.
FINANCIAL STATEMENTS. Mortgagors agree to furnish to Mortgagee, at Mortgagors'
expense and within ninety (90) days after the close of each fiscal year (each, a
"Financial Statements Due Date"), annual audited consolidated financial
statements on the Mortgagors (the "Audited Statements"), consisting of the
following:
(a) a statement of assets and liabilities;
(b) a statement of cash flows including a schedule detailing
expenditures for tenant improvements, leasing commissions and
capital improvements; and
(c) an income statement (statement of operations) including a
supplemental schedule detailing all expenses of the Mortgaged
Property.
Mortgagors also agree to furnish to Mortgagee a current rent roll
listing, with respect to all retail spaces, tenant sales, sales per square foot
and percentage rents (for retail tenants who are obligated to pay percentage
rent) (the "Rent Roll Report") by each Financial Statements Due Date. The Rent
Roll Report shall contain a certification by the managing general partner(s) of
MCRLP, stating that the Rent Roll Report is true and correct. Xxxxxxxxxx also
agree to furnish to Mortgagee a copy of any independent appraisals prepared for
Mortgagors (the "Appraisals") (the Audited Statements, the Rent
26
Roll Report and the Appraisals are hereinafter collectively referred to as the
"Financial Statements").
The Audited Statements shall (i) be stated at estimated fair market
value prepared based upon an independent appraisal in accordance with generally
accepted accounting principles by a certified public accountant satisfactory to
Mortgagee, and the expense thereof shall be borne by Mortgagors, and (ii)
include or be accompanied by a written statement by the accountants preparing or
opining in regard to such Audited Statements, in form and substance satisfactory
to Mortgagee, in the manner contemplated by New Jersey P.L. 1995, c.49, that
such accountants know that Mortgagee shall receive and rely upon such Audited
Statements.
In the event that the Audited Statements are not available by the
Financial Statements Due Date, Mortgagors shall submit unaudited financial
statements by the Financial Statements Due Date containing a certification by
the managing general partner(s) of MCRLP, stating that, to the best of its
knowledge and subject to audit adjustment, the financial statements are true and
correct, and shall supply the Audited Statements as soon thereafter as such
Audited Statements are available, but in no event later than three (3) months
after the Financial Statements Due Date.
Mortgagors acknowledge that Mortgagee requires such Audited Statements
and Rent Roll Report in order to record accurately the value of the Mortgaged
Property for financial and regulatory reporting. If Mortgagors do not furnish,
or cause to be furnished, the Audited Statements and Rent Roll Report to
Mortgagee, within thirty (30) days after Mortgagee shall have given written
notice to Mortgagors that the Audited Statements and Rent Roll Report have not
been received as required,
(i) interest on the unpaid principal balance of the Indebtedness shall,
as of the date which is thirty (30) days after Mortgagee shall have
given such written notice to Mortgagors, accrue and become payable at a
rate equal to (a) the sum of the Interest Rate (as such term is defined
in the 1995 Notes) plus one percent (1.0%) per annum for the 1995
Notes, and (b) the sum of the Interest Rate (as such term is defined in
the 2001 Notes) plus one percent (1.0%) per annum for the 2001 Notes
(together, the "Increased Rates"); and
(ii) Mortgagee may elect to obtain an independent appraisal and audit
of the Mortgaged Property at Mortgagors' expense, and Mortgagors agree
that they will, upon request, promptly make Mortgagors' books and
records regarding the Mortgaged Property available to Mortgagee and the
person(s) performing the appraisal and audit (which obligation
Mortgagors agree can be specifically enforced by Mortgagee).
The amount of the payments due under the 1995 Notes and the 2001 Notes
during the time in which the Increased Rates are in effect shall be increased
with no change in the amortization under the 1995 Notes or the 2001 Notes.
Commencing on the date on
27
which such Audited Statements and Rent Roll Report are received by Mortgagee,
interest on the unpaid principal balance shall again accrue at the Interest Rate
set forth in the 1995 Notes and the 2001 Notes, respectively, and the amount of
the payments shall be reduced accordingly. Notwithstanding the foregoing,
Mortgagee shall have the right to conduct an independent audit at its own
expense at any time; PROVIDED, HOWEVER, that such audit shall not be conducted
more than once in any fiscal year.
ADDITIONAL COVENANTS. The Mortgagors covenant, jointly and severally, as
follows:
A. The Plaza IV Land and the Plaza VI/VII Land shall be used for
surface parking or another Permitted Use unless released from the lien of this
Mortgage, but in no event shall the total parking spaces located on the
Mortgaged Property be less than the total parking spaces required by applying a
ratio of .666 parking spaces per 1000 square feet to the total square footage of
the improvements on the Mortgaged Property.
B. Mortgagors shall not amend, modify or supplement the ROEA including,
without limitation, the exhibits thereto, without the prior written consent of
Mortgagee in each instance including, without limitation, the provisions of
Sections 2.1, 2.2, 5.2, 6.8, 6.25, 7.1 and 15.1 of the ROEA.
C. Mortgagors shall not amend or cause to be amended their respective
partnership agreements without the prior written consent of Mortgagee in each
instance, which consent shall not be unreasonably withheld.
D. Mortgagors shall not amend or cause to be amended the ground leases
affecting any Section of the Property without the prior written consent of
Mortgagee in each instance, which consent shall not be unreasonably withheld.
E. Mortgagors shall comply with the terms and conditions of the
respective Financial Agreements between Mortgagors and the City of Jersey City
and shall provide Mortgagee with copies of the Annual Financial Reports filed
with the City of Jersey City pursuant to the Financial Agreements, together with
copies of all correspondence sent to or received from the City of Jersey City
with respect to the Financial Agreements alleging a default or purported default
thereunder by any Mortgagor.
F. If either or both of the North Pier Land and/or the South Pier Land
shall be developed, Cali Harborside shall cause Cal-Harbor No. Pier Urban
Renewal Associates, L.P. and Cal-Harbor So. Xxxx Xxxxx Renewal Associates L.P.
to develop the North Pier Land and the South Pier Land, respectively, only for
the Permitted Uses and subject to the provisions of the ROEA.
PARTIAL RELEASES. Upon (x) the sale or a transfer to a party who is not an
Affiliate of MCRC or MCRLP, or (y) the closing of a loan by Mortgagors or an
Affiliate to finance the construction of any portion of the
28
Mortgaged Property (other than Plaza II/III) for the Permitted Uses, or (z) the
commencement of construction of any portion of the Mortgaged Property (other
than Plaza II/III) for the Permitted Uses by Mortgagors or an Affiliate without
a loan, one or all of the Plaza IV Land and/or the Plaza VI/VII Land shall be
released from this Mortgage, subject to the following (the "Upland Parcel
Release Criteria"):
(i) there is then no (i) Non-Monetary Default under the Loan Documents
with respect to which Mortgagee shall have given Mortgagors notice
pursuant to the NOTICE OF DEFAULT provision herein, or (ii) Monetary
Default, or (iii) Event of Default and the continuance thereof;
(ii) Mortgagee is paid a total service fee of Ten Thousand Dollars
($10,000.00) for each release;
(iii) each release shall consist of not less than one Section of the
Property which shall be a tax parcel separate from the remaining
portions of the Mortgaged Property;
(iv) a boundary survey delineating the Section of the Property to be
released shall be furnished to Mortgagee at Mortgagors' sole cost and
expense;
(v) remaining portions of the Mortgaged Property shall not be deprived
of public access to roads or to the use of any utilities, water,
sanitary and storm sewers;
(vi) Mortgagee shall be satisfied that:
(a) following such transfer, the remaining Sections of
the Property shall meet zoning requirements for their
use;
(b) the total parking on the remaining Sections of the
Mortgaged Property following such transfer shall be no
less than the greater of (1) total parking spaces
required by all leases, (2) total parking spaces
required by zoning, or (3) total parking spaces
required by applying a ratio of .666 parking spaces
per 1000 square feet to the total square footage of
the improvements on the remaining Sections of the
Mortgaged Property;
(c) the rights and obligations of the parties under the
ROEA shall not be affected by the transfer and, in
particular, the tenants of Plaza II/III shall have
the right to access the parking on the Mortgaged
Property pursuant to the ROEA;
(vii) the Plaza IV Land and the Plaza VI/VII Land to be released may be
developed only for the Permitted Uses, which restrictions on uses shall
be incorporated into the deed of transfer, and subject to the
provisions of the ROEA;
29
(viii) Mortgagors shall pay all of Mortgagee's outside counsel fees
incurred for Mortgagee's due diligence and review of all documentation
relating to such release; and
(ix) Mortgagors shall satisfy such other conditions as Mortgagee may
reasonably require.
MODIFICATION OF TERMS. Without affecting the liability of Mortgagors or any
other person (except any person expressly released in writing) for payment of
the Indebtedness or for performance of any obligation contained herein and
without affecting the rights of Mortgagee with respect to any security not
expressly released in writing, Mortgagee may, at any time and from time to time,
either before or after the maturity of the 1995 Notes and the 2001 Notes,
without notice or consent: (i) release any person liable for payment of all or
any part of the Indebtedness or for performance of any obligation; (ii) make any
agreement extending the time or otherwise altering the terms of payment of all
or any part of the Indebtedness, or modifying or waiving any obligation, or
subordinating, modifying or otherwise dealing with the lien or charge hereof;
(iii) exercise or refrain from exercising or waive any right Mortgagee may have;
(iv) accept additional security of any kind; (v) release or otherwise deal with
any property, real or personal, securing the Indebtedness, including all or any
part of the Mortgaged Property.
NO ORAL MODIFICATION. This Mortgage may not be altered, amended, modified,
changed or terminated orally, but only by a written agreement signed by the
party against whom enforcement is sought.
EXERCISE OF OPTIONS. Whenever, by the terms of this Mortgage, the 1995 Notes,
the 2001 Notes or any of the other Loan Documents, Mortgagee is given any
option, such option may be exercised when the right accrues or at any time
thereafter, and no acceptance by Mortgagee of payment of Indebtedness in default
shall constitute a waiver of any default then existing and continuing or
thereafter occurring.
NATURE AND SUCCESSION OF AGREEMENTS. Each of the provisions, covenants and
agreements contained herein are joint and several and shall inure to the benefit
of, and be binding on, the heirs, executors, administrators, successors,
grantees, lessees and assigns of the parties hereto, respectively, and the term
"Mortgagee" shall include the owner and holder of the 1995 Notes and the 2001
Notes.
LEGAL ENFORCEABILITY. No provision of this Mortgage, the 1995 Notes, the 2001
Notes or any other Loan Documents shall require the payment of interest or other
obligation in excess of the maximum permitted by law. If any such excess payment
is provided for in any Loan Documents or shall be adjudicated to be so provided,
the provisions of this paragraph shall govern and Mortgagors shall not be
obligated to pay the amount of such interest or other obligation to the extent
that it is in excess of the amount permitted by law.
30
TAXATION OF THE 1995 NOTES AND THE 2001 NOTES. If by the laws of the United
States of America or of any state or governmental subdivision thereof having
jurisdiction of the Mortgagors or of the Mortgaged Property or of the
transaction evidenced by the 1995 Notes and the 2001 Notes and this Mortgage,
any tax or fee is due or becomes due in respect of the issuance of the 1995
Notes and the 2001 Notes hereby secured or the making, recording and
registration of this Mortgage, except for Mortgagee's income tax, Mortgagors
covenant and agree to pay such tax or fee in the manner required by such law,
and to hold harmless and indemnify Mortgagee, its successors and assigns,
against any liability incurred by reason of the imposition of any such tax or
fee.
PREPAYMENT OF THE 1995 NOTES AND/OR THE 2001 NOTES. Mortgagors shall have the
right, upon thirty (30) days advance written notice, to prepay the 1995 Notes
and/or the 2001 Notes in full with a prepayment fee. This fee represents
consideration to Mortgagee for loss of yield and reinvestment costs. The fee
shall be the greater of Yield Maintenance (as hereinafter defined) or one
percent (1.0%) of the outstanding principal balance of the 1995 Notes and/or the
2001 Notes.
As used herein, "Yield Maintenance" means the amount, if any, by which
(i) the present value of the Then Remaining Payments (as
hereinafter defined) calculated using a periodic discount rate
(corresponding to the payment frequency under the Notes being
prepaid) which, when compounded for such number of payment
periods in a year, equals the sum of .25% and the per annum
effective yield of the Most Recently Auctioned United States
Treasury Obligation having a maturity date equal to the
Maturity Date (or, if there is no such equal maturity date,
then the linearly interpolated per annum effective yield of
the two (2) Most Recently Auctioned United States Treasury
Obligations having maturity dates most nearly equivalent to
the Maturity Date) as reported by THE WALL STREET JOURNAL five
(5) business days preceding the prepayment date; exceeds
(ii) the outstanding principal balance of the 1995 Notes and/or the
2001 Notes (whichever is being prepaid) (exclusive of all
accrued interest).
If such United States Treasury Obligation yields shall not be reported
as of such time or the yields reported as of such time shall not be
ascertainable, then the periodic discount rate shall be equal to the sum of .25%
and the Treasury Constant Maturity Series yields reported, for the latest day
for which such yields shall have been so reported, as of five (5) business days
preceding the prepayment date, in Federal Reserve Statistical Release H. 15
(519) (or any comparable successor publication) for actively traded United
States Treasury obligations having a constant maturity most nearly equivalent to
the Maturity Date.
As used herein, "Then Remaining Payments" means payments in such
amounts
31
and at such times as would have been payable subsequent to the date of such
prepayment in accordance with the terms of the 1995 Notes and/or the 2001 Notes.
ESTOPPEL CERTIFICATE. Within fifteen (15) days after any written request by
either party, the other party shall certify, by a written statement duly
acknowledged, the amount of principal and interest then owing on the Notes and
whether any offsets or defenses exist against the indebtedness secured thereby.
LIMITATION OF LIABILITY. Notwithstanding any provision contained herein to the
contrary, the personal liability of Mortgagors shall be limited as provided in
the 1995 Notes and the 2001 Notes.
NOTICES. Any notices, demands, requests and consents permitted or required
hereunder or under any other Loan Document shall be in writing, may be delivered
personally or sent by certified mail with postage prepaid, by reputable courier
service with charges prepaid, by telecopier or by such other method whereby the
receipt thereof may be confirmed. Any notice or demand sent to Mortgagor by
certified mail or reputable courier service shall be addressed to Mortgagor at
c/o Xxxx-Xxxx Realty Corporation, 000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
or such other address in the United States of America as Mortgagor shall
designate in a notice to Mortgagee given in the manner described herein, with a
copy to Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-4441. Attention: Xxxxxxx X. Xxxxxxx, Esq., telecopier (000) 000-0000. Any
notice sent to Mortgagor by telecopier shall be sent to (000) 000-0000. Any
notice sent to Mortgagee by certified mail or reputable courier service shall be
addressed to The Northwestern Mutual Life Insurance Company to the attention of
the Real Estate Investment Department at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
XX 00000, or at such other addresses as Mortgagee shall designate in a notice
given in the manner described herein. Any notice sent to Mortgagee by telecopier
shall be sent to (000) 000-0000. Any notice given to Mortgagee shall refer to
the Loan No. set forth above. Any notice or demand which is rejected, the
acceptance of delivery of which is refused or which is incapable of being
delivered during normal business hours at the address specified herein or
such other address designated pursuant hereto shall be deemed received as of
the date of attempted delivery.
SEVERABILITY. If any of the provisions of this Mortgage or the application
thereof to any persons or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Mortgage, and the application of such
provision or provisions to persons or circumstances other than those as to whom
or which it is held invalid or unenforceable, shall not be affected thereby, and
every provision of this Mortgage shall be valid and enforceable to the fullest
extent permitted by law.
CAPTIONS. The captions contained herein are for convenience and reference only
and in no way define, limit or describe the scope or intent of, or in any way
affect this Mortgage.
32
GOVERNING LAW. This Mortgage shall be governed by and construed in accordance
with the laws of the state in which the Mortgaged Property is located.
CO-INVESTMENT AND SERVICING OF THE NOTES. The Northwestern Mutual Life
Insurance Company ("Northwestern") shall service the Loan Documents and shall
be authorized to act on behalf of Principal Life Insurance Company (f/k/a
Principal Mutual Life Insurance Company) ("Principal") and/or any other
lenders holding an interest in the Loan Documents in accordance with the
terms of a Co-Lending and Servicing Agreement between Northwestern and
Principal dated as of December 11, 1995, as amended May 18, 2001 throughout
the term of the Indebtedness provided no Event of Default exists under the
Loan Documents.
Any notices, requests, approvals, consents, deliveries or other forms
of communication between Mortgagors and Northwestern shall be deemed adequate
and sufficient as if given by or to Principal.
If Northwestern ceases to service the Loan Documents, a new servicer
will be appointed by Northwestern and Mortgagors shall be provided with written
notice as to the name and address of the new servicer; PROVIDED, HOWEVER, that
Xxxxxxxxxx shall only be required to communicate with one servicer at any time
with respect to the Loan Documents, and any notices, requests, approvals,
consents, deliveries or other forms of communication between Mortgagors and each
servicer shall be deemed adequate and sufficient as if given by or from all of
the holders of the Loan Documents. Notwithstanding the foregoing, however, both
Northwestern and Principal shall have the right to give Mortgagors a notice of
default and such notice will have the same effect as if given by Northwestern.
RELEASES. If the Mortgagors shall pay or cause to be paid the principal of and
interest on the 1995 Notes and the 2001 Notes in full at maturity, or earlier,
as permitted in accordance with the terms thereof, and all other Indebtedness
payable to Mortgagee hereunder by the Mortgagors or secured hereby or by the
other Loan Documents, then this Mortgage and all of the other Loan Documents
shall be discharged and satisfied or assigned (to the Mortgagors or to any other
person at the Mortgagors' direction and without recourse to the Mortgagee), at
the Mortgagors' option, without warranty (except as to acts of Mortgagee) at the
expense of the Mortgagors upon their written request. Concurrently with such
release and satisfaction or assignment of this Mortgage and all of the other
Loan Documents, the Mortgagee will return to the Mortgagors the 1995 Notes and
the 2001 Notes and all insurance policies relating to the Mortgaged Property
which may be held by the Mortgagee and, on the written request and at the
expense of the Mortgagors, will execute and deliver such proper instruments of
release (including appropriate UCC-3 termination statements) as may reasonably
be requested by the Mortgagors to evidence such release and satisfaction or
assignment, and any such instrument, when duly executed by the Mortgagee and
duly recorded in the places where this Mortgage and each other Loan Document is
recorded, shall conclusively evidence the release and satisfaction or
assignment, as appropriate, of this Mortgage and the other
33
Loan Documents.
IN WITNESS WHEREOF, this Mortgage has been executed by the Mortgagors as of the
day and year first above written.
34
XXXXXXXXXX HEREBY ACKNOWLEDGE THAT XXXXXXXXXX HAVE RECEIVED FROM THE MORTGAGEE
WITHOUT CHARGE A TRUE COPY OF THIS INSTRUMENT STAMPED "COPY" AND ON WHICH SUCH
COPY IS A CERTIFICATION BY THE MORTGAGEE OR THE MORTGAGEE'S ATTORNEY THAT SUCH
INSTRUMENT IS A TRUE COPY OF THIS MORTGAGE.
MORTGAGOR:
CALI HARBORSIDE (FEE)
ASSOCIATES L.P., a New Jersey
limited partnership
Signed, sealed and delivered By: Xxxx-Xxxx Sub X, Inc., a Delaware
in the presence of: corporation, General Partner
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxx (SEAL)
------------------------------- --------------------------
Xxxxxxx X. Xxxxxxx Xxxxx Xxxxxxxxx
Associate General Counsel Executive Vice President &
Chief Financial Officer
(corporate seal)
CAL-HARBOR II & III URBAN
RENEWAL ASSOCIATES L.P., a New
Jersey limited partnership
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxx (SEAL)
------------------------------- --------------------------
Xxxxxxx X. Xxxxxxx Xxxxx Xxxxxxxxx
Associate General Counsel Executive Vice President &
Chief Financial Officer
(corporate seal)
CAL-HARBOR IV URBAN
RENEWAL ASSOCIATES L.P., a New
Jersey limited partnership
Signed, sealed and delivered By: Xxxx-Xxxx Sub X, Inc., a Delaware
in the presence of: corporation, General Partner
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxx (SEAL)
------------------------------- --------------------------
Xxxxxxx X. Xxxxxxx Xxxxx Xxxxxxxxx
Associate General Counsel Executive Vice President &
Chief Financial Officer
(corporate seal)
(SIGNATURES CONTINUED ON NEXT PAGE)
35
(SIGNATURES CONTINUED FROM PREVIOUS PAGE)
CAL-HARBOR VI URBAN
RENEWAL ASSOCIATES L.P., a New
Jersey limited partnership
Signed, sealed and delivered By: Xxxx-Xxxx Sub XI, Inc., a Delaware
in the presence of: corporation, General Partner
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxx (SEAL)
------------------------------- --------------------------
Xxxxxxx X. Xxxxxxx Xxxxx Xxxxxxxxx
Associate General Counsel Executive Vice President &
Chief Financial Officer
(corporate seal)
(SIGNATURES CONTINUED ON NEXT PAGE)
36
(SIGNATURES CONTINUED FROM PREVIOUS PAGE)
MORTGAGEE:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY, a Wisconsin
corporation
By: Northwestern Investment
Management Company, LLC, a Delaware
limited liability company, its
wholly owned affiliate and authorized
Signed, sealed and delivered representative
in the presence of:
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx (SEAL)
------------------------------- ---------------------------
Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxx, Managing Director
/s/ Xxxxxxxx Xxxxxxx Attest: /s/ Xxxxxxx X. Xxxxxxx (SEAL)
------------------------------- -----------------------
Xxxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx, Assistant Secretary
(corporate seal)
PRINCIPAL LIFE INSURANCE
COMPANY, formerly known as
Signed, sealed and delivered Principal Mutual Life Insurance
in the presence of: Company, an Iowa corporation
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx (SEAL)
------------------------------- -----------------------------
Xxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxx, Its
Vice President and
Corporate Secretary
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx (SEAL)
------------------------------- -----------------------------
Xxxxx X. Xxxxxxx Xxxxxxxxxxx X. Xxxxxxxxx, Its Counsel
Vice President and
Corporate Secretary
(corporate seal)
37
STATE OF NEW JERSEY )
)ss.
COUNTY OF UNION )
Be it remembered that on the 18th day of May, 2001, before me, the
subscriber, personally appeared Xxxxx Xxxxxxxxx who, I am satisfied, is the
person in the within instrument named, who being duly sworn by me, did depose
and say that he is the CFO of Xxxx-Xxxx Sub X, Inc., a Delaware corporation,
which is the General Partner of CALI HARBORSIDE (FEE) ASSOCIATES L.P., a New
Jersey limited partnership who, I am satisfied, is the person who signed the
within instrument, and I having first made known to him the contents thereof,
he thereupon acknowledged that said instrument made by CALI HARBORSIDE (FEE)
ASSOCIATES L.P., and signed, sealed and delivered by him, is the voluntary
act and deed of CALI HARBORSIDE (FEE) ASSOCIATES L.P. made by virtue of his
authority as CFO of Xxxx-Xxxx Sub X, Inc., the General Partner of CALI
HARBORSIDE (FEE) ASSOCIATES L.P.
Sworn to and subscribed before me
the day and year aforesaid.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
Notary Public of New Jersey
38
STATE OF NEW JERSEY )
)ss.
COUNTY OF UNION )
Be it remembered that on the 18th day of May, 2001, before me, the
subscriber, personally appeared Xxxxx Xxxxxxxxx who, I am satisfied, is the
person in the within instrument named, who being duly sworn by me, did depose
and say that he is the CFO of Xxxx-Xxxx Sub X, Inc., a Delaware corporation,
which is the General Partner of CAL-HARBOR II & III URBAN RENEWAL ASSOCIATES
L.P., a New Jersey limited partnership who, I am satisfied, is the person who
signed the within instrument, and I having first made known to him the
contents thereof, he thereupon acknowledged that said instrument made by
CAL-HARBOR II & III URBAN RENEWAL ASSOCIATES L.P., and signed, sealed and
delivered by him, is the voluntary act and deed of CAL-HARBOR II & III URBAN
RENEWAL ASSOCIATES L.P. made by virtue of his authority as CFO of Xxxx-Xxxx
Sub X, Inc., the General Partner of CAL-HARBOR II & III URBAN RENEWAL
ASSOCIATES L.P.
Sworn to and subscribed before me
the day and year aforesaid.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
Notary Public of New Jersey
39
STATE OF NEW JERSEY )
)ss.
COUNTY OF UNION )
Be it remembered that on the 18th day of May, 2001, before me, the
subscriber, personally appeared Xxxxx Xxxxxxxxx who, I am satisfied, is the
person in the within instrument named, who being duly sworn by me, did depose
and say that he is the CFO of Xxxx-Xxxx Sub X, Inc., a Delaware corporation,
which is the General Partner of CAL-HARBOR IV URBAN RENEWAL ASSOCIATES L.P.,
a New Jersey limited partnership who, I am satisfied, is the person who
signed the within instrument, and I having first made known to him the
contents thereof, he thereupon acknowledged that said instrument made by
CAL-HARBOR IV URBAN RENEWAL ASSOCIATES L.P., and signed, sealed and delivered
by him, is the voluntary act and deed of CAL-HARBOR IV URBAN RENEWAL
ASSOCIATES L.P. made by virtue of his authority as CFO of Xxxx-Xxxx Sub X,
Inc., the General Partner of CAL-HARBOR IV URBAN RENEWAL ASSOCIATES L.P.
Sworn to and subscribed before me
the day and year aforesaid.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
Notary Public of New Jersey
40
STATE OF NEW JERSEY )
)ss.
COUNTY OF UNION )
Be it remembered that on the 18th day of May, 2001, before me, the subscriber,
personally appeared Xxxxx Xxxxxxxxx who, I am satisfied, is the person in the
within instrument named, who being duly sworn by me, did depose and say that he
is the CFO of Xxxx-Xxxx Sub XI, Inc., a Delaware corporation,
which is the General Partner of CAL-HARBOR VI URBAN RENEWAL ASSOCIATES L.P., a
New Jersey limited partnership who, I am satisfied, is the person who signed the
within instrument, and I having first made known to him the contents thereof, he
thereupon acknowledged that said instrument made by CAL-HARBOR VI URBAN RENEWAL
ASSOCIATES L.P., and signed, sealed and delivered by him, is the voluntary act
and deed of CAL-HARBOR VI URBAN RENEWAL ASSOCIATES L.P. made by virtue of his
authority as CFO of Xxxx-Xxxx Sub XI, Inc., the General Partner
of CAL-HARBOR VI URBAN RENEWAL ASSOCIATES L.P.
Sworn to and subscribed before me
the day and year aforesaid.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
Notary Public of New Jersey
41
STATE OF WISCONSIN )
)ss.
COUNTY OF MILWAUKEE )
Be it remembered that on the 16th day of May, 2001, before me, the
subscriber, personally appeared Xxxxxxx X. Xxxxxxx, to me known who being by
me duly sworn according to law, on his/her oath does depose and make proof to
my satisfaction that he/she is the Assistant Secretary of Northwestern
Investment Management Company, LLC, on behalf of THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY and well knows the seal of THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY the Lender in the foregoing mortgage named; that the seal
affixed to said instrument is the corporate seal of said corporation, that it
was so affixed by virtue of the authority from the Board of Trustees of said
corporation; that Xxxxxx X. Xxxxxx is the Managing Director of Northwestern
Investment Management Company, LLC; that he/she saw said Xxxxxx X. Xxxxxx
as such Managing Director affix said seal thereto, sign and deliver said
mortgage, and heard Xxxxxx X. Xxxxxx declare that he/she signed, sealed and
delivered the same as the voluntary act and deed of said corporation, by
virtue of such authority, and that this deponent signed his/her name xxxxxxx,
at the same time as a subscribing witness.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx, Ass't Secretary
Sworn to and subscribed before me
the day and year aforesaid.
/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxx
Notary Public of Wisconsin
My commission expires: May 9, 2004
42
STATE OF IOWA )
)ss.
COUNTY OF POLK )
Be it remembered that on the 15th day of May, 2001, before me, the
subscriber, Xxxx Xxxxxxxxx, personally appeared Xxxxxxx X. Xxxxxxxxx and
Xxxxxxxxxxx X. Xxxxxxxxx, to me known who being by me duly sworn according to
law, on his/her oath does depose and make proof to my satisfaction that they
are the Counsel and Counsel of PRINCIPAL LIFE INSURANCE COMPANY, formerly
known as Principal Mutual Life Insurance Company and well knows the seal of
PRINCIPAL LIFE INSURANCE COMPANY, formerly known as Principal Mutual Life
Insurance Company, the Lender in the foregoing mortgage named; that the seal
affixed to said instrument is the corporate seal of said corporation, that it
was so affixed by virtue of the authority from the Board of Directors of said
corporation; that Xxxxx X. Xxxxxxx is the Corporate Secretary of said
corporation; that she saw said Xxxxxxx X. Xxxxxxxxx and Xxxxxxxxxxx X.
Xxxxxxxxx as such Counsel and Counsel affix said seal thereto, sign and
deliver said mortgage, and heard Xxxxxxx X. Xxxxxxxxx and Xxxxxxxxxxx X.
Xxxxxxxxx declare that they signed, sealed and delivered the same as the
voluntary act and deed of said corporation, by virtue of such authority, and
that this deponent signed his/her name xxxxxxx, at the same time as a
subscribing witness.
/s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
Vice President and Corporate
Secretary
Sworn to and subscribed before me
the day and year aforesaid.
/s/ Xxxx Xxxxxxxxx
-------------------------------------
Xxxx Xxxxxxxxx
Notary Public of Iowa
My commission expires: April 21, 2003
43
