Exhibit 10.222
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CREDIT AGREEMENT
Dated as of December 10, 1997
among
CALI REALTY, L.P.
AND
THE PARTIES LISTED ON SCHEDULE I HERETO
as Borrower,
THE LENDERS PARTIES HERETO,
and
PRUDENTIAL SECURITIES CREDIT CORPORATION,
as Administrative Agent
$200,000,000
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TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS; ACCOUNTING MATTERS . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.01. Certain Defined Terms . . . . . . . . . . . . . . . 2
SECTION 1.02. Other Definitional Provisions . . . . . . . . . . . 14
SECTION 1.03. Accounting Terms and Determinations . . . . . . . . 15
ARTICLE II.
COMMITMENTS; LOAN; NOTE; PREPAYMENTS . . . . . . . . . . . . . . . . . 15
SECTION 2.01. Loan. . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.02. Full Recourse . . . . . . . . . . . . . . . . . . . 16
SECTION 2.03. Note. . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.04. Optional Prepayments. . . . . . . . . . . . . . . . 16
SECTION 2.05. Mandatory Prepayments; Permanent
Reduction of Commitments. . . . . . . . . . . . . . . . . . . 17
SECTION 2.06. Release of Mortgaged Property. . . . . . . . . . . 17
ARTICLE III.
PAYMENT OF PRINCIPAL AND INTEREST . . . . . . . . . . . . . . . . . . . 18
SECTION 3.01. Repayment of Loan . . . . . . . . . . . . . . . . . 18
SECTION 3.02. Interest. . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.03. Interest Adjustments. . . . . . . . . . . . . . . . 18
ARTICLE IV.
PAYMENTS AND COMPUTATIONS . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.01. Payments.. . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.02. Computations. . . . . . . . . . . . . . . . . . . . 20
SECTION 4.03. Minimum Amounts. . . . . . . . . . . . . . . . . . 20
SECTION 4.04. Certain Notices. . . . . . . . . . . . . . . . . . 20
SECTION 4.05. Set-Off. . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE V.
YIELD PROTECTION, ETC.. . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.01. Additional Costs. . . . . . . . . . . . . . . . . . 21
SECTION 5.02. Illegality. . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.03. Treatment of Affected Loan. . . . . . . . . . . . 24
SECTION 5.04. Compensation. . . . . . . . . . . . . . . . . . . . 24
SECTION 5.05. Withholding Taxes.. . . . . . . . . . . . . . . . . 25
SECTION 5.06. Indemnity. . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.07. Duty to Mitigate. . . . . . . . . . . . . . . . . . 28
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ARTICLE VI.
CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.01. Conditions to the Loan. . . . . . . . . . . . . . 29
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.01. Partnership Existence. . . . . . . . . . . . . . . 35
SECTION 7.02. Financial Condition.. . . . . . . . . . . . . . . . 35
SECTION 7.03. Litigation. . . . . . . . . . . . . . . . . . . . 37
SECTION 7.04. No Breach. . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.05. Partnership Power; Authorization;
Enforceable Obligations. . . . . . . . . . . . . . . . . . . 37
SECTION 7.06. Approvals. . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.07. No Default. . . . . . . . . . . . . . . . . . . . 38
SECTION 7.08. Ownership of Property. . . . . . . . . . . . . . . 38
SECTION 7.09. Taxes. . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.10. Use of Credit. . . . . . . . . . . . . . . . . . . 39
SECTION 7.11. ERISA. . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.12. Investment Company Act. . . . . . . . . . . . . . 39
SECTION 7.13. Public Utility Holding Company Act. . . . . . . . 40
SECTION 7.14. Environmental Matters. . . . . . . . . . . . . . . 40
SECTION 7.15. True and Complete Disclosure. . . . . . . . . . . 42
SECTION 7.16. Labor Matters. . . . . . . . . . . . . . . . . . . 42
ARTICLE VIII.
COVENANTS OF THE BORROWER . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.01. Financial Statements. . . . . . . . . . . . . . . . 42
SECTION 8.02. Certificates and Other Information. . . . . . . . 44
SECTION 8.03. Litigation. . . . . . . . . . . . . . . . . . . . 45
SECTION 8.04. Conduct of Business, Existence, Etc. . . . . . . . 45
SECTION 8.05. Payment of Obligations. . . . . . . . . . . . . . 47
SECTION 8.06. Insurance. . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.07. Limitation on Liens. . . . . . . . . . . . . . . . 50
SECTION 8.08. ERISA. . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.09. Use of Proceeds. . . . . . . . . . . . . . . . . . 51
SECTION 8.10. Environmental Laws. . . . . . . . . . . . . . . . 51
SECTION 8.11. Hazardous Substances. . . . . . . . . . . . . . . 53
SECTION 8.12. Claims. . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.13. Estoppel Certificates, Subordination
Agreements, etc.. . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE IX.
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.01. . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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ARTICLE X.
THE ADMINISTRATIVE AGENT. . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.01. Appointment. . . . . . . . . . . . . . . . . . . . 58
SECTION 10.02. Delegation of Duties . . . . . . . . . . . . . . . 58
SECTION 10.03. Exculpatory Provisions . . . . . . . . . . . . . . 59
SECTION 10.04. Reliance by Administrative Agent . . . . . . . . . 59
SECTION 10.05. Notice of Default. . . . . . . . . . . . . . . . . 60
SECTION 10.06. Non-Reliance on Administrative Agent
and Lender. . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.07. Reimbursement and Indemnification. . . . . . . . . 61
SECTION 10.08. Administrative Agent in Its Individual
Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.09. Successor Administrative Agent . . . . . . . . . . 62
SECTION 10.10. Collateral Holder. . . . . . . . . . . . . . . . . 63
ARTICLE XI.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.01. No Waiver; Cumulative Remedies . . . . . . . . . . 64
SECTION 11.02. Notices. . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.03. Expenses . . . . . . . . . . . . . . . . . . . . . 65
SECTION 11.04. Amendments . . . . . . . . . . . . . . . . . . . . 67
SECTION 11.05. Successors and Assigns . . . . . . . . . . . . . . 68
SECTION 11.06. Assignments and Participations . . . . . . . . . . 68
SECTION 11.07. Adjustments. . . . . . . . . . . . . . . . . . . . 71
SECTION 11.08. Survival . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.09. Captions . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.10. Counterparts . . . . . . . . . . . . . . . . . . . 72
SECTION 11.11. Severability . . . . . . . . . . . . . . . . . . . 72
SECTION 11.12. Integration. . . . . . . . . . . . . . . . . . . . 73
SECTION 11.13. GOVERNING LAW. . . . . . . . . . . . . . . . . . . 73
SECTION 11.14. Submission to Jurisdiction . . . . . . . . . . . . 73
SECTION 11.15. Acknowledgments. . . . . . . . . . . . . . . . . . 74
SECTION 11.16. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . 74
EXHIBIT A FORM OF ASSUMPTION AGREEMENT
EXHIBIT B FORM OF NOTE
EXHIBIT C FORM OF NOTICE OF BORROWING
EXHIBIT D FORM OF ASSIGNMENT AND ACCEPTANCE
SCHEDULE I MORTGAGED PROPERTY
SCHEDULE II COMMITMENTS
SCHEDULE III VALUE OF ASSETS
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THIS CREDIT AGREEMENT (this "AGREEMENT") dated as of December 10, 1997, is
entered into by and among Cali Realty, L.P. , a Delaware limited partnership
(the "OPERATING PARTNERSHIP") and the Parties listed on Schedule I attached
hereto (each a "PROPERTY PARTNERSHIP" and collectively with the Operating
Partnership, "BORROWER"), the several lenders from time to time parties hereto
("LENDER"), and Prudential Securities Credit Corporation ("PSC"), a Delaware
corporation, as administrative agent for the Lender (in such capacity, the
"ADMINISTRATIVE AGENT").
WHEREAS, Cali Realty Corporation ("CALI"), a Maryland corporation, the sole
general partner of the Operating Partnership, proposes to combine with The Xxxx
Company, a New Jersey based company ("XXXX") and Patriot American Office Group,
a Texas based company ("PATRIOT" and together with Xxxx, the "XXXX COMBINATION")
pursuant to a contribution and exchange agreement dated as of September 18, 1997
(the "MERGER AGREEMENT") as amended, among Cali, the Operating Partnership and
the Xxxx Combination, whereby Cali will become Xxxx-Xxxx Corporation (the
"COMPANY") and the Operating Partnership will become Xxxx-Xxxx Realty, L.P. (the
"MERGER"); and
WHEREAS, in connection with the Merger, Cali proposes to have the Company
assume certain indebtedness of Xxxx in aggregate principal amount of
approximately $300,000,000 (the "EXISTING XXXX DEBT") which is secured by
mortgages on certain property owned by Xxxx which will become assets of the
Company, and that each such assumption by the Company requires the consent of
the respective holders of the Existing Xxxx Debt; and
WHEREAS, the Company has requested Lender to make a single loan to Borrower
for the purpose of prepaying the Existing Xxxx Debt, where the holders of such
debt have not consented to the assumption by the Company, to pay certain fees
and expenses incurred in connection therewith, and to make payments in
connection with the consummation of the Merger, up to an aggregate principal
amount at any one time outstanding equal to $200,000,000, pursuant to and
subject to the terms and conditions set forth herein, and Lender is willing to
make such loan on and subject to the terms and conditions hereof in the maximum
amount equal to $200,000,000; and
WHEREAS, the Operating Partnership and its affiliates own 100% of the legal
and beneficial ownership of the Property Partnerships; and
WHEREAS, to secure repayment of the Obligations (as hereinafter defined)
the Property Partnerships have agreed to provide to the Administrative Agent,
for the benefit of Lender, a first mortgage lien on each of the Mortgaged
Properties (as hereinafter defined) and an assignment of all leases and rents
with respect to the Mortgaged Properties; and
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WHEREAS, if the Property Partnerships did not provide Lender a first
mortgage lien on the Mortgaged Property, Lender would not have made the Loan (as
hereinafter defined); and
WHEREAS, each Property Partnership is obtaining a material benefit from the
Loan.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, Borrower, Lender and the Administrative Agent hereby agree as
follows:
ARTICLE I
DEFINITIONS; ACCOUNTING MATTERS
SEXTION 1.01 CERTAIN DEFINED TERMS. As used herein, the following
terms shall have the following meanings:
"ADDITIONAL COSTS" has the meaning set forth in SECTION 5.01(A).
"ADMINISTRATIVE AGENT" means Prudential Securities Credit Corporation,
a Delaware corporation, as administrative agent for Lender, or any successor
administrative agent approved in accordance with SECTION 10.09.
"AFFILIATE" means any Person that directly or indirectly controls, or
is under common control with, or is controlled by, any other Person. As used in
this definition, "CONTROL" (including, with its correlative meaning, "CONTROLLED
BY" and "UNDER COMMON CONTROL WITH") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the other Person (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"AGREEMENT" means this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"ALLOCATED MORTGAGED PROPERTY LOAN AMOUNT" means the aggregated
amounts listed on SCHEDULE III hereto for those properties owned by the Property
Partnership.
"APPLICABLE LENDING OFFICE" means, with respect to any Lender or
Reference Banks, the branch or branches (or Affiliate or Affiliates) from which
any Loan of Lender or Reference Bank, as the case may be, are made or maintained
under this Agreement, as designated by, or by notice provided to, the
Administrative Agent from time to time.
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"ASSIGNEE" means Lender or any Affiliate thereof, or, with the consent
of the Administrative Agent and Borrower (which shall not be unreasonably
withheld), any additional lender or financial institution, who receives an
assignment of all or any part of Lender's rights and obligations under the
Agreement, the Note and the other Credit Facility Documents pursuant to SECTION
11.06.
"ASSIGNMENT AND ACCEPTANCE" means an agreement in the form of EXHIBIT
B hereto, executed by the assignor, assignee and other parties as contemplated
thereby.
"ASSIGNMENT OF LEASES" means the present Assignment of Leases and
Rents, made by Property Partnership in favor of the Administrative Agent.
"ASSUMPTION AGREEMENT" means the Assumption Agreement in the form of
EXHIBIT A, to be entered into by Xxxx-Xxxx Realty, L.P. upon the consummation of
the Merger.
''BANKRUPTCY CODE" means the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BASLE ACCORD" has the meaning set forth in SECTION 5.01(C).
"BENEFITTED LENDER" has the meaning set forth in SECTION 11.07.
"BUSINESS DAY" means any day on which both (a) commercial banks are
not authorized or required to close in New York City, and (b) dealings in Dollar
deposits are carried out in the London interbank market.
"CALI PLEDGE AGREEMENT" means the pledge agreement between Cali and
the Administrative Agent dated November 1, 1996, as amended by the Modification
to Revolving Credit Facility Agreement and Other Credit Facility Documents dated
August 12, 1997, among the Operating Partnership, the lenders party thereto and
the Administrative Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"CAPITALIZED LEASE" shall mean, with respect to any Person, any lease
or other agreement with respect to the use of Property that, in accordance with
GAAP, must be capitalized on the lessee's or user's balance sheet or the amount
of the liability which, if so capitalized, must be disclosed in a note to such
balance sheet.
"CAPITALIZED LEASE OBLIGATION" of any Person shall mean, as of any
date as of which the amount thereof is to be determined, the amount of the
liability capitalized or disclosed (or which should be disclosed), in accordance
with GAAP, on a balance sheet (or in a note to such balance sheet) of such
Person in respect of a Capitalized Lease of such Person.
3
"CHANGE OF CONTROL" means, at any time after the Closing Date, (i) if
any Person or group shall own or control more than 30% of either (x) the Company
on a fully diluted basis assuming the conversion of all its Preferred Stock and
its Ownership interest in the Operating Partnership or (y) the Operating
Partnership's Common Units and Preferred Units or (ii) the acquisition of
beneficial ownership, directly or indirectly, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
Exchange Commission thereunder as in effect on the date hereof) .
"CLOSING DATE" means the date on which the conditions precedent to the
making of the Loan as set forth in SECTION 6.01 shall be satisfied or waived by
Lender and the Loan is made hereunder, which in no event shall be later than
December __, 1997.
"COLLATERAL" means the Property described in the Cali Pledge Agreement
and the Operating Partnership Pledge Agreement.
"COLLATERAL HOLDER" means PSC in its capacity (i) as Administrative
Agent and as custodian of the Collateral under the Cali Pledge Agreement and the
Operating Partnership Pledge Agreement and (ii) as Mortgagee under the Mortgage,
and any successor thereto appointed in accordance with SECTION 10.09.
"COMPANY" has the meaning set forth in the recitals hereto.
"CONSOLIDATED SUBSIDIARY" means, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired), the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking (including, without limitation, its charter, bylaws or other
organizational documents) to which such Person is a party or by which it or any
of its Property is bound.
"CREDIT FACILITY DOCUMENTS" means this Agreement, the Note issued
under this Agreement, the Mortgage, the Assignment of Leases, and any other
ancillary documentation which is required to be otherwise executed by Borrower
or any Third Party and delivered to the Administrative Agent in connection with
this Agreement, together with any rider, addendum or amendment thereto, as
amended from time to time.
"DEFAULT" means an Event of Default or any event, act or condition
which merely with notice or lapse of time, or both, would become an Event of
Default.
"DOLLARS" and "$" means lawful money of the United States of America.
4
"EBITDA" means as to any Person, for any determination period,
earnings before interest, taxes, depreciation and amortization, determined in
accordance with GAAP.
"ENVIRONMENTAL INDEMNITY" means the Environmental Indemnity Agreement
dated as of December __, 1997 made by Borrower to the Administrative Agent.
"ENVIRONMENTAL LAWS" means any and all present and future federal,
state, municipal and local laws, rules, regulations, statutes, ordinances or
codes, common law causes of action, judicial and administrative decisions, and
any orders or decrees of any Governmental Authority, in each case as now or
hereafter in effect, relating to the regulation or protection of the environment
or to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes into the
indoor or outdoor environment, including, without limitations, ambient air,
soil, surface water, ground water, wetlands, land or subsurface strata, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, chemicals
or toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA AFFILIATE" means any corporation or trade or business that is a
member of any group of organizations (a) described in Section 414(b) or 414(c)
of the Internal Revenue Code of which Borrower is a member, and (b) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Internal Revenue Code and the Lien created under Section
302(f) of ERISA and Section 412(n) of the Internal Revenue Code, described in
Section 414(m) or 414(o) of the Internal Revenue Code of which Borrower is a
member.
"EVENT OF DEFAULT" means any of the events specified in Article IX.
"EXISTING CREDIT FACILITY DOCUMENTS" means (i) the Revolving Credit
Facility Agreement dated November 1, 1996 among the Operating Partnership, the
lenders party thereto and the Administrative Agent as amended by the
Modification to Revolving Credit Facility Agreement and Other Credit Facility
Documents dated August 12, 1997 among the Operating Partnership, the lenders
party thereto and the Administrative Agent, and the Second Modification to
Revolving Credit Facility Agreement and Other Credit Facility documents dated as
of the date hereof among the Operating Partnership, the lenders party thereto
and the Administrative Agent (the "Second Modification"), as amended from time
to time, and the other Credit Facility Documents (as that term is defined in
said Revolving Credit Facility Agreement), as amended from time to time,
pursuant to which the Pledged Partnership Interests and
5
Pledged Stock were pledged by the Operating Partnership and Cali respectively to
the Administrative Agent, for the benefit of the Lenders.
"FINANCING STATEMENTS" means the UCC financing statements executed by
each Property Partnership, as debtor, in favor of the Administrative Agent, as
secured party.
"GAAP" means generally accepted accounting principles in the United
States of America as of the date of the applicable financial report or
determination.
"GOVERNMENTAL AUTHORITY" means any federal, state or other political
subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"GUARANTY OBLIGATION" means all obligations, contingent or otherwise,
of any Person guaranteeing or having the economic effect of guaranteeing in any
manner, whether directly or indirectly, any Indebtedness of any other Person,
including any obligation (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or to purchase (or advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness, (ii) to purchase or lease (or advance or supply funds for the
purchase or lease of) any Property, securities or services for the purpose of
assuring the owner of such Indebtedness of the payment of such Indebtedness, or
(iii) to maintain working capital, equity capital or compliance with any other
financial condition of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or satisfy such condition.
"HAZARDOUS SUBSTANCES" means, collectively, (a) any petroleum or
petroleum products or by-products, flammable materials, explosives, radioactive
materials, asbestos-containing materials, urea formaldehyde foam insulation, and
transformers or other equipment that contain dielectric fluid containing
polychlorinated biphenyls (PCB's), (b) any infectious, carcinogenic, mutagenic,
or etiologic agents, pesticides, defoliants or any other chemicals or other
materials or substances which are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import or meaning under any Environmental Law, and (c) any other
chemical or other material or substance, exposure to which is now or hereafter
prohibited, limited or regulated under any Environmental Law.
"INDEBTEDNESS" means, for any Person, as of any date as of which the
amount thereof is to be determined, whether secured or unsecured, (a) all
obligations of such Person evidenced by bonds, debentures, Note or similar
instruments, (b) all obligations of such Person upon which interest charges are
customarily paid, (c) al1 obligations of such Person under conditional sale or
other title retention agreements relating to Property purchased by such Person,
(d) all obligations of such Person issued
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or assumed as the deferred purchase price of Property or services (other than
accounts payable to suppliers incurred in the ordinary course of business and
paid within ninety (90) days after the same are due), (e) all Indebtedness of
other Persons to the extent secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any lien or security interest on Property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (f) all
Capitalized Lease Obligations of such Person, (g) all Guaranty Obligations, (h)
obligations of such Person in respect of any Interest Rate Protection
Agreements, and (i) obligations of such Person in respect of commercial letters
of credit, acceptance facilities, drafts or similar instruments issued or
accepted by banks and other financial institutions for the account of such
Person and matured reimbursement obligations in respect of standby letters of
credit.
"INITIAL DATE" means (a) in the case of the Administrative Agent and
Lender, the date of this Agreement, and (b) in the case of each other Lender or
a Participant, the date upon which it became a Lender or Participant.
"INTEREST DEFICIT" has the meaning set forth in SECTION 3.03(A).
"INTEREST PAYMENT DATE" means (a) the last Business Day of each month
or (b) the Maturity Date, as applicable.
"INTEREST PERIOD" means with respect to the Loan, (i) initially, the
period commencing on the date such Loan is made and ending on the day
immediately preceding the Interest Payment Date; and (ii) thereafter each period
commencing on the Interest Payment Date and ending on the day immediately
preceding the Interest Payment Date.
"INTEREST RATE" means with respect to any Interest Period, an interest
rate per annum equal to LIBOR Base Rate plus 110 basis points.
"INTEREST RATE PROTECTION AGREEMENT" means, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
For purposes hereof, the "CREDIT EXPOSURE" at any time of any Person under an
Interest Rate Protection Agreement to which such Person is a party shall be
determined in accordance with the standard methods of calculating credit
exposure under similar arrangements as prescribed from time to time by the
Administrative Agent, taking into account potential interest rate movements and
the termination provisions and notional principal amount and term of such
Interest Rate Protection Agreement.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986 and
the rules and regulations issued thereunder, as amended from time to time, or
any successor provision thereto.
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"LENDER" means the several lenders from time to time parties hereto as
set forth in the recitals of this Agreement.
"LIBOR BASE RATE" means, for any Interest Period,
(a) the rate per annum determined by the Administrative Agent to be
the offered rate for dollar deposits with a term comparable to such Interest
Period that appears on the display designated as Page 3750 on the Dow Xxxxx
Telerate Service (or such other page as may replace such page on such service,
or on another service designated by the British Bankers' Association, for the
purpose of displaying the rates at which dollar deposits are offered by leading
banks in the London interbank deposit market) at approximately 11:00 A.M.,
London time, on the second Business Day preceding the first day of such Interest
Period. If such rate does not appear on such page, "LIBOR" shall mean the rate
of interest communicated by the LIBOR Reference Bank to the Administrative Agent
as the rate at which U.S. dollar deposits are offered to the LIBOR Reference
Bank by leading banks in the London interbank deposit market at approximately
11:00 A.M., London time, on the second Business Day preceding the first day of
such Interest Period in an amount substantially equal to the LIBOR Reference
Amount for a term equal to such Interest Period; or
(b) if (i) on any LIBOR Determination Date the Administrative Agent is
unable to determine the LIBOR Base Rate in the manner provided in paragraph (a)
above, or (ii) setting the LIBOR Rate at the rate computed based on the
determination of LIBOR Base Rate as provided in paragraph (a) above would be
unlawful, then the LIBOR Base Rate for such Interest Period shall be the LIBOR
Base Rate as determined on the previous LIBOR Determination Date or, in the case
of the first LIBOR Determination Date, the rate determined by the Administrative
Agent subject to reasonable approval of the Borrower.
"LIBOR DETERMINATION DATE" shall mean the second Business Day
preceding the first day of each Interest Period.
"LIBOR RATE" means, for each Loan and for any Interest Period, a rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined
by the Administrative Agent to be equal to the LIBOR Base Rate for such Loan for
such Interest Period divided by 1 minus the Reserve Requirement, if any, for
such Loan for such interest Period.
"LIEN" means any mortgage, lien, pledge, charge, security interest,
negative pledge or encumbrance of any kind or restriction on the creation of any
of the foregoing whether relating to any property or right or the income or
profits therefrom for the purpose of subjections of such property to the payment
of any indebtedness. For purposes of this Agreement, a Person shall be deemed
to own subject to a Lien any Property that it has acquired or holds subject to
the interest of a vendor or lessor under
8
any conditional sale agreement, capital lease, other title retention agreement
(other than an operating lease) or agreement to give any financing statement
under the Uniform Commercial Code of any jurisdiction relating to such Property.
"LOAN" means the loan by Lender to Borrower under SECTION 2.01.
"MATERIAL ADVERSE EFFECT" means, with respect to any Person, a
material adverse effect on the consolidated business or consolidated financial
condition of such Person and its Subsidiaries taken as a whole or, in the case
of Borrower, on the ability of Borrower to perform its obligations hereunder.
"MATURITY DATE" means the one year anniversary of the Closing Date.
"MERGER" shall have the meaning set forth in the recitals hereto.
"MERGER AGREEMENT" shall have the meaning set forth in the recitals
hereto.
"MERGER CONSUMMATION DATE" means the date on which the Merger as
contemplated by the Merger Agreement has been consummated.
"MORTGAGE" means the Mortgage, Security Agreement and Assignment of
Leases and Rents dated as of December __, 1997 made by Property Partnerships in
favor of the Administrative Agent.
"MORTGAGED PROPERTY" means the real property, buildings and other
improvements thereon listed on SCHEDULE I.
"MULTIEMPLOYER PLAN" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by Borrower and
which is covered by Title IV of ERISA.
"NOTE" has the meaning set forth in SECTION 2.04.
"NOTICE OF BORROWING" shall have the meaning set forth in SECTION
2.01.
"OBLIGATIONS" means the unpaid principal of and interest on the Note
and all other obligations and liabilities of Borrower to the Administrative
Agent or Lender, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which may arise under, out of,
or in connection with, this Agreement, the Note, the other Credit Facility
Documents or the Existing Credit Facility Documents, or any other document made,
delivered or given in connection with therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, after the occurrence of
9
a Default or Event of Default, all reasonable fees and disbursements of counsel
to the Administrative Agent or any Lender) or otherwise.
"OPERATING PARTNERSHIP" means Cali Realty, L.P., a Delaware limited
partnership.
"OPERATING PARTNERSHIP PLEDGE AGREEMENT" means the pledge agreement
dated November 1, 1996 as amended by the Modification to Revolving Credit
Facility Agreement and Other Credit Facility Documents dated August 12, 1997,
among the Operating Partnership, the lenders party thereto and the
Administrative Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"PARTICIPANT" has the meaning set forth in SECTION 11.06(B).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means any individual, corporation, company, division of a
corporation, voluntary association, partnership, limited liability company,
joint venture, trust, association, estate, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"PLAN" means an employee benefit or other plan established or
maintained by Borrower that is covered by Title IV or ERISA, other than a
Multiemployer Plan.
"PLEDGED PARTNERSHIP INTERESTS" means a 99% limited partnership
interest owned by the Operating Partnership in Holdings (as defined in the
Existing Credit Facility Documents) and a 99% limited partnership interest
owned by the Operating Partnership in each of the UREs (as defined in the
Existing Credit Facility Documents), all to be pledged to the Administrative
Agent as security for the Obligations pursuant to the Operating Partnership
Pledge Agreement.
"PLEDGED STOCK" means 100% of the issued and outstanding capital stock
of the G.P. Subs owned by the Company to be pledged to the Administrative Agent
as security for the Obligations pursuant to the Cali Pledge Agreement.
"POST-DEFAULT RATE" means, in respect of any principal of or interest
on any Loan or any other amount whatsoever payable by Borrower under this
Agreement or the Note that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum during the period from and including the due date of such amount to but
excluding the date on which such amount is paid in full (after as well as before
judgment) equal to 300 basis points in excess of the Interest-Rate.
10
"PRO FORMA CLOSING DATE BALANCE SHEET" shall mean the PRO FORMA
balance sheet of the Company and its Subsidiaries, as provided in the Prospectus
dated November 10, 1997, prepared by a Responsible Officer of Cali, giving
effect to the transactions thereunder, and certified by such Responsible Officer
that such PRO FORMA balance sheet was prepared in good faith, represents the
Company's best estimate of the information set forth therein, is based upon
reasonable assumptions and all relevant information available to Cali, and such
balance sheet has not changed except for the Loan.
"PROPERTY" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"PROPERTY PARTNERSHIP" has the meaning set forth in the recitals
hereto.
"PROPERTY RELEASE" shall have the meaning set forth in SECTION 2.06.
"PRUDENTIAL" shall mean The Prudential Insurance Company of America or
any of its Affiliates.
"PSC" means Prudential Securities Credit Corporation.
"REFERENCE BANKS" initially shall be Bank of Tokyo Ltd., Barclay's
Bank, plc, National Westminster Bank plc, and Bankers Trust Company. Each
Reference Bank shall (a) be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, and (b) have an established
place of business in London. If any such Reference Bank should be unwilling or
unable to act as such, or if any Reference Bank in any other way fails to meet
the qualifications of a Reference Bank, the Administrative Agent shall designate
alternative Reference Banks meeting the criteria specified in this paragraph.
The Administrative Agent shall have no liability or responsibility to any Person
for: (1) the selection of any Reference Bank for purposes of determining the
LIBOR Base Rate; (ii) the inability to retain at least four Reference Banks that
is caused by circumstances beyond its reasonable control; (iii) the selection of
any New York or European banks pursuant to clause (a)(ii) of the definition of
"LIBOR BASE RATE" for purposes of determining the LIBOR Base Rate; or (iv) the
inability to select such New York or European banks that is caused by
circumstances beyond its reasonable control.
"REGISTER" has the meaning set forth in SECTION 11.06(D).
"REGULATIONS D, G, T, U AND X" mean, respectively, Regulations D, G,
T, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"REGULATORY CHANGE" means any change after the date of this Agreement
in federal, state or foreign laws or regulations (including, without limitation,
11
Regulation D) or the adoption or making after such date of any interpretation,
directive, guideline, policy or request applying to a class of banks or other
financial institutions, including the Lenders, of or under any federal, state or
foreign laws or regulations (whether or not having the force of law and whether
or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"REIT" means a real estate investment trust as defined in the Internal
Revenue Code.
"REIT GROUP" means the Company and all of its Affiliates.
"RELEASE" means any material release, spill, emission, leaking,
pumping, injection deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including, without limitation,
the movement of Hazardous Substances through ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata.
"REQUIREMENT OF LAW" means, as to any Person, all provisions of any
law, statute, treaty, rule or regulation or determination of an arbitrator or a
court or other Governmental Authority of competent jurisdiction, in each case
applicable to or binding upon such Person or any of its Property or to which
such Person or any of its Property is subject.
"RESERVE REQUIREMENT" means, for any Interest Period for Loan, the
average maximum rate at which reserves (including, without limitation, any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by the Administrative Agent (as
determined by the Administrative Agent in its sole discretion) against
"Eurocurrency Liabilities" (as such term is used Regulation D); PROVIDED,
HOWEVER, that allocation of such reserves (if any) to the Loan or the
transactions contemplated hereby shall be in the sole discretion of the
Administrative Agent. Without limiting the effect of the foregoing, the Reserve
Requirement shall include any other reserves required to be maintained by the
Administrative Agent (as determined by the Administrative Agent in its sole
discretion) by reason of any Regulatory Change with respect to (a) any category
of liabilities that includes deposits by reference to which the LIBOR Base Rate
for the Loan is to be determined as provided in the definition of "LIBOR Base
Rate" in this SECTION 1.01 or (b) any category of extensions of credit or other
assets that includes the Loan.
"RESIDENTIAL LEASE" has the meaning set forth in SECTION 8.17.
"RESPONSIBLE OFFICER'' means the chief executive officer, executive
vice president, the president or Controller of Cali or, with respect to
financial matters, the chief financial officer of Cali.
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"SECURITIES ACT" means the Securities Act of 1933, as from time to
time amended.
"SUBSIDIARY" means, for any Person, any corporation, partnership or
other entity (whether now existing or hereafter organized) of which at least a
majority of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation, partnership or
other entity (irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such corporation,
partnership or other entity shall have or might have voting power by reason of
the happening of any contingency) is at the time directly or indirectly owned or
controlled by such Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person.
"TAXES" means all non-excluded taxes, levies, imposts, duties,
charges, fees, deductions and withholdings, as set forth in SECTION 5.05(A).
"THIRD PARTY" means any Person who guarantees or pledges collateral to
secure the obligations of Borrower under this Agreement.
"TRANSFEREE" means any Participant or assignee as set forth in SECTION
11.06(F).
SECTION 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings specified herein when used in the Note
or the other Credit Facility Documents or any certificate or other document made
or delivered pursuant hereto.
(b) The words "HEREOF","HEREIN" and "HEREUNDER" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Article, Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(c) The meanings given to terms defined in SECTION 1.01 and in other
provisions of this Agreement shall be equally applicable to both the singular
and plural forms of such terms.
SECTION 1.03 ACCOUNTING TERMS AND DETERMINATIONS.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Administrative Agent and the Lender hereunder shall unless otherwise disclosed
to Lender in writing at the time of
13
delivery thereof) be prepared, in accordance with GAAP consistently applied
throughout the periods involved (except as otherwise noted therein). All
calculations made for the purposes of determining compliance with this Agreement
shall be made by application of GAAP consistently applied throughout the periods
involved (except as otherwise noted therein).
(b) Borrower shall deliver to Lender at the same time as the delivery
of any annual or quarterly financial statement under SECTION 8.01 (i) a
description in reasonable detail of any material variation between the
application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements, and
(ii) reasonable estimates of the difference between such statements arising as a
consequence thereof.
ARTICLE II
COMMITMENTS; LOAN; NOTE; PREPAYMENTS
SECTION 2.01 LOAN. Subject to the terms and conditions of this
Agreement, Lender agrees, to extend credit to Borrower by making a term loan in
Dollars ("LOAN") to Borrower, on the Closing Date, in an aggregate principal
amount of TWO HUNDRED MILLION DOLLARS ($200,000,000). Borrower shall give the
Administrative Agent an irrevocable notice (a "NOTICE OF BORROWING") for the
Loan. The Notice of Borrowing shall be substantially in the form of EXHIBIT C.
SECTION 2.02 FULL RECOURSE. The Obligations, including the Loan
made hereunder, shall be with full recourse to the assets of each constituent
Borrower, the Operating Partnership, and its general partner, Cali.
SECTION 2.03 NOTE.
(a) The Loan made by Lender shall be evidenced by a promissory note
of Borrower payable to Lender in substantially the form of EXHIBIT B, dated the
date hereof, with appropriate insertions as to payee, date and principal amount,
payable to the order of such Lender and in a principal amount equal to
$200,000,000. The outstanding principal balance of the Loan as evidenced by the
Note shall be payable on the Maturity Date, unless the same becomes due and
payable on an earlier date pursuant to the terms hereof. The Note will bear
interest on the outstanding principal balance thereof as set forth in SECTION
3.02 hereof.
(b) The date, amount, interest rate and duration of each Interest
Period of the Loan, and each payment made on account of the principal thereof,
shall be recorded by Lender on its books and, prior to any transfer of the Note,
endorsed by Lender on the schedule attached to and constituting a part of the
Note; PROVIDED, HOWEVER, that the failure of Lender to make any such recordation
or endorsement shall not affect the obligations of Borrower to make any payment
when due hereunder;
14
PROVIDED FURTHER, HOWEVER, that any such recordation or endorsement shall
constitute PRIMA FACIE evidence of the accuracy of the information so recorded
absent manifest error.
SECTION 2.04 OPTIONAL PREPAYMENTS. (a) Subject to SECTIONS 4.04 AND
5.04, Borrower shall have the right to prepay the Loan, in whole or in part, at
any time or from time to time without premium or penalty (other than customary
LIBOR breakage costs); PROVIDED, HOWEVER, that Borrower shall give the
Administrative Agent notice of each such prepayment as provided in SECTION 4.04
(and, upon the date specified in any such notice of prepayment, the amount to be
prepaid shall become due and payable hereunder). Partial repayments shall be in
an aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof. All prepayments shall be accompanied by accrued but unpaid
interest on the principal amount being prepaid to the date of prepayment.
Amounts repaid may not be reborrowed.
SECTION 2.05 MANDATORY PREPAYMENTS; PERMANENT REDUCTION OF
COMMITMENTS. Subject to SECTIONS 4.04 AND 5.04, in the event of a Change of
Control with respect to the REIT Group, Borrower shall repay the outstanding
principal of the Loan, in full, with, (i) accrued interest and fees and (ii)
customary breakage costs for LIBOR. If Borrower shall receive any proceeds from
loans made by Prudential, other than borrowing under the Existing Credit
Facility Documents or under this Agreement, and Prudential in its sole
discretion requires the Borrower to use the proceeds of such loans to repay the
Loan, then Borrower shall repay the Loan in an amount equal to the aggregate net
proceeds of such loans, with, (i) accrued interest and fees and (ii) customary
breakage costs for LIBOR. All prepayments hereunder shall be accompanied by
accrued but unpaid interest on the principal amount being prepaid to the date of
prepayment.
SECTION 2.06 RELEASE OF MORTGAGED PROPERTY. Borrower may obtain the
release of one or more of the Mortgaged Properties (a "PROPERTY RELEASE") from
the lien of this Agreement, the Mortgage and the other Credit Facility
Documents, provided the following conditions are met:
(a) Borrower gives the Administrative Agent at least ten (10)
Business Days prior written notice;
(b) no Event of Default shall have occurred and be continuing as of
the date of such notice and the date of the Property Release;
(c) the Loan outstanding at the time of the Property Release are
reduced by an amount equal to 125% of the Allocated Mortgaged
Property Loan Amount; and
(d) the Administrative Agent shall have determined, in its reasonable
discretion that, after giving effect to the Property Release,
15
the Loan amount does not exceed 65% of the value of the Mortgaged
Properties at the time of the Property Release.
ARTICLE III
PAYMENT OF PRINCIPAL AND INTEREST
SECTION 3.01 REPAYMENT OF LOAN. Borrower agrees to repay on the
Maturity Date the aggregate outstanding principal amount of the Loan, together
with all accrued and unpaid interest thereon and all other amounts due under the
Note and the other Credit Facility Documents.
SECTION 3.02 INTEREST.
(a) Borrower agrees to pay interest on the unpaid principal amount of
the Loan for the period from and including the date of such Loan to but
excluding the date such Loan shall be paid in full, for each Interest Period
relating thereto, at a rate per annum (computed on the basis set forth in
SECTION 4.02(a) equal to the Interest Rate for such Loan.
(b) Notwithstanding the foregoing, Borrower hereby promises to pay
interest at the applicable Post-Default Rate on the principal of or interest on
the Loan and on any other amount payable by Borrower hereunder or under the Note
which shall not be paid in full when due (whether at stated maturity, by
acceleration, by mandatory prepayment or otherwise), for the period from and
including the due date thereof to and including the date the same is paid in
full (after as well as before judgment).
(c) Accrued interest on the Loan shall be payable on the Interest
Payment Date; PROVIDED, HOWEVER, that interest payable at the Post-Default Rate
shall be payable from time to time on demand.
SECTION 3.03 INTEREST ADJUSTMENTS.
(a) If the provisions of this Agreement or the Note would at any time
require payment by Borrower to Lender of an amount of interest in excess of the
maximum amount then permitted by the law applicable to the Loan, the interest
payments to Lender shall be reduced to the extent necessary so that Lender shall
not receive interest in excess of such maximum amount. If, as a result of the
foregoing, Lender shall receive interest payments hereunder or under the Note in
an amount less than the amount otherwise provided hereunder, such deficit
(hereinafter called the "INTEREST DEFICIT") will, to the fullest extent
permitted by Requirements of Law, cumulate and will be carried forward (without
interest) until the termination of this Agreement. Interest otherwise payable
to Lender hereunder and under the Note for any subsequent period shall be
increased by the maximum amount of the Interest Deficit
16
that may be so added without causing Lender to receive interest in excess of the
maximum amount then permitted by the law applicable to the Loan.
(b) The amount of the Interest Deficit relating to the Loan shall be
paid in full at the time of any optional prepayment by Borrower to Lender
pursuant to SECTIONS 2.05 OR 2.06. The amount of the Interest Deficit relating
to the Loan at the time of any complete payment of the Loan at that time
outstanding (other than an optional prepayment thereof pursuant to SECTION 2.05
or mandatory prepayment pursuant to SECTION 2.06) shall be canceled and not
paid.
ARTICLE IV
PAYMENTS AND COMPUTATIONS
SECTION 4.01 PAYMENTS.
(a) All payments (including prepayments) to be made by Borrower
hereunder and under the Note, whether on account of principal, interest, fees or
otherwise, shall be made without deduction, set off or counterclaim and shall be
made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lender, at the Administrative
Agent's office specified in SECTION 11.02, in Dollars and in immediately
available funds. If any payment on the Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day.
(b) Lender may (but shall not be obligated to) debit the amount of
any payment that is not made when due to any ordinary deposit account of the
Borrower with Lender.
SECTION 4.02 COMPUTATIONS.
(a) Interest shall be computed on the basis of a year of 360 days and
the actual number of days elapsed in each Interest Period occurring in the
period for which payable. Other amounts owing hereunder shall be computed on
the basis of a year of 360 days and the actual number of days elapsed in each
Interest Period occurring in the period for which payable. The Administrative
Agent shall as soon as practicable notify Borrower of each determination of a
Interest Rate. Any change in the interest rate on the Loan resulting from a
change in the Reserve Requirement shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify Borrower of the effective date and the
amount of each such change in interest rate.
(b) The establishment of the LIBOR Base Rate on each LIBOR
Determination Date by the Administrative Agent and the Administrative Agent's
17
calculation of the rate of interest for the related Interest Period shall (in
the absence of manifest error) be final and binding on Borrower and Lender. The
Administrative Agent shall make available the then current LIBOR Base Rate to
any Lender upon request. Furthermore, the Administrative Agent shall promptly
send written notice of its determination of the LIBOR Base Rate to Borrower
prior to the close of business on each LIBOR Determination Date.
SECTION 4.03 MINIMUM AMOUNTS. Except for mandatory prepayments made
pursuant to SECTION 2.06 and prepayments made pursuant to SECTION 5.03, each
partial prepayment of principal of the Loan shall be in an aggregate principal
amount at least equal to $1,000,000 or in multiples of $500,000 in excess
thereof.
SECTION 4.04 CERTAIN NOTICES. Written or telephonic (promptly
confirmed in writing) notices by Borrower of optional prepayments of the Loan
shall be irrevocable and shall be effective only if received by the
Administrative Agent not later than 10:00 a.m., New York time, ten (10) Business
Days prior to the date of the relevant prepayment or the first day of such
Interest Period. Each such notice of optional prepayment shall specify the
amount (subject to SECTION 4.03) of the Loan to be prepaid and the date (which
shall be a Business Day) of such proposed prepayment.
SECTION 4.05. SET-OFF. In addition to any rights and remedies of
Lender provided by law, Lender shall have the right, if an Event of Default
shall have occurred and be continuing, without prior notice to Borrower, any
such notice being expressly waived by Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by Borrower hereunder
or under the Note (whether at the stated maturity, by acceleration or otherwise)
to set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by the Lender or any branch or agency thereof to or for the credit
or the account of Borrower. Lender agrees promptly to notify Borrower and the
Administrative Agent after any such set-off and application made by Lender;
PROVIDED, HOWEVER, that the failure to give such notice shall not affect the
validity of such set-off and application.
ATICLE V
YIELD PROTECTION, ETC.
SECTION 5.01 ADDITIONAL COSTS.
(a) Borrower shall pay directly to the Administrative Agent for the
account of Lender from time to time such amounts as Lender may (in its sole
judgment) determine to be necessary to compensate Lender for any costs that
Lender determines are attributable to its making or maintaining of the Loan or
its obligation to make the Loan hereunder, or any reduction in any amount
receivable by Lender
18
hereunder in respect of any of the Loan or such obligation (such increases in
costs and reductions in amounts receivable being herein called "ADDITIONAL
COSTS"), resulting from any Regulatory Change that:
(i) subjects Lender to, or increases the net amount of, any tax,
levy, impost, duty, charge, fee, deduction or withholding with respect to
the Loan, or changes the basis of taxation of any amounts payable to Lender
under this Agreement or the Note in respect of any of the Loan (other than
taxes imposed on or measured by the overall net income of Lender or of the
Applicable Lending Office for any of the Loan by the jurisdiction in which
Lender has its principal office or such Applicable Lending Office) and
other than changes generally affecting the manner in which the income of
the Lender or its Applicable Lending Office is subjected to taxation;
(ii) imposes, modifies or deems applicable any reserve, deposit or
similar requirements (other than the Reserve Requirement utilized in the
determination of the LIBOR Rate for such Loan) relating to any extensions
of credit or other assets of, or any deposits with or other liabilities of,
the Lender (including, without limitation, any of the Loan or any deposits
referred to in the definition of "LIBOR Base Rate" in SECTION 1.01; or
(iii) imposes any other condition affecting this Agreement or the
Note (or any of such extensions of credit or liabilities).
If Lender requests compensation from Borrower under this SECTION 5.01(A),
Borrower may, by notice to the Administrative Agent (who shall forward it to the
Lender), (A) suspend the obligation of Lender thereafter to make the Loan, until
the Regulatory Change giving rise to such request ceases to be in effect (in
which case the provisions of SECTION 5.03 shall be applicable), PROVIDED,
HOWEVER, that such suspension shall not affect the right of Lender to receive
the compensation so requested, or (B) prepay the Loan in full (subject always to
SECTION 5.04).
(b) Without limiting the effect of the provisions of SECTION 5.01(A),
in the event that, by reason of any Regulatory Change, Lender either (i) incurs
Additional Costs based on or measured by the excess above a specified level of
the amount of a category of deposits or other liabilities of the Lender that
includes deposits by reference to which the interest rate on the Loan is
determined as provided in this Agreement or a category of extensions of credit
or other assets of Lender that includes the Loan, or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets that it
may hold, then, if Lender so elects by notice to Borrower (with a copy to the
Administrative Agent), the obligation of Lender to make the Loan hereunder shall
be suspended until such Regulatory Change ceases to be in effect (in which case
the provisions of SECTION 5.03 shall be applicable).
19
(c) Without limiting the effect of the foregoing provisions of this
SECTION 5.01 (but without duplication), Borrower shall pay from time to time on
request such amounts as Lender may determine to be necessary to compensate
Lender for any costs that it determines are attributable to maintenance by
Lender (or any Applicable Lending Office) or the Lender's holding company,
pursuant to any law, rule or regulation or any interpretation, guideline,
directive or request (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) of any court or governmental or
monetary authority (i) following any Regulatory Change, or (ii) implementing any
risk-based capital guideline or other requirement (whether or not having the
force of law and whether or not the failure to comply therewith would be
unlawful) heretofore or hereafter issued by any government or governmental or
supervisory authority implementing at the national level the Basle Accord, of
capital in respect of the Loan (such compensation to include, without
limitation, an amount equal to any reduction of the rate of return on assets or
equity of the Lender (or any Applicable Lending Office) or Lender's holding
company to a level below that which Lender (or any Applicable Lending Office)
or the Lender's holding company could have achieved but for such law,
regulation, interpretation, directive or request). For purposes of this SECTION
5.01(C), "Basle Accord" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards," dated July 1988, as amended,
modified and supplemented and in effect from time to time or any replacement
thereof.
(d) The Administrative Agent shall notify Borrower of any event
occurring after the date of this Agreement entitling Lender to compensation
under SECTION 5.01(A) or 5.01(C) as promptly as practicable after the
Administrative Agent obtains actual knowledge thereof. Lender will designate a
different Applicable Lending Office for the Loan affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of Lender, be materially disadvantageous to
Lender; PROVIDED, HOWEVER, that Lender shall have no obligation to designate an
Applicable Lending Office located in the United States of America. Lender will
furnish to Borrower (through the Administrative Agent) a certificate setting
forth the basis and amount of each request by Lender for compensation under
SECTION 5.01(A) or 5.01(C). Determinations and allocations by Lender for
purposes of this SECTION 5.01 of the effect of any Regulatory Change pursuant to
SECTION 5.01(A) or SECTION 5.01(B), or of the effect of capital maintained
pursuant to SECTION 5.01(C), on its costs or rate of return of maintaining the
Loan or its obligation to make the Loan, or on amounts receivable by it in
respect of the Loan, and of the amounts required to compensate Lender under this
SECTION 5.01, shall be conclusive and binding on the Borrower in the absence of
manifest error; PROVIDED, HOWEVER, that such determinations and allocations are
made on a reasonable basis. Borrower shall pay to the Administrative Agent, for
the account of Lender, the amounts shown as due on any such certificate within
ten (10) Business Days after its receipt of the same. No failure on the part of
Lender to demand compensation under paragraph (a) or (c) above on any one
occasion shall constitute a waiver of its rights to
20
demand compensation on any other occasion. The protection of this Section shall
be available to Lender regardless of any possible contention of the invalidity
or inapplicability of any law, regulation or other condition which shall give
rise to any demand by such Lender for compensation thereunder. This covenant
shall survive the termination of this Agreement and the payment of the Note and
all other amounts payable hereunder.
SECTION 5.02 ILLEGALITY. Notwithstanding any other provision of
this Agreement, if any change after the date hereof in Applicable law, guideline
or order, or in the interpretation thereof by any Governmental Authority charged
with the administration thereof, shall make it unlawful for Lender to honor its
obligations to make, maintain the Loan hereunder, then the Lender shall promptly
notify Borrower and the Administrative Agent thereof and Lender's obligation to
make, maintain the Loan shall be suspended until such time as Lender may again
make and maintain the Loan (in which case the provisions of SECTION 5.03 shall
be Applicable).
SECTION 5.03 TREATMENT OF AFFECTED LOAN. If the obligation of
Lenders to make the Loan shall be suspended pursuant to SECTION 5.01 or 5.02,
Borrower may, by notice to Lender as provided in SECTION 4.04, elect to prepay
the Loan in full (subject always to SECTION 5.04).
SECTION 5.04 COMPENSATION.
(a) Borrower shall pay to Lender, upon the request of Lender, such
amount or amounts as shall be sufficient (in the reasonable opinion of Lender)
to compensate it for any loss, cost or expense that Lender determines is
attributable to any payment or mandatory or optional prepayment of the Loan for
any reason (including, without limitation, the acceleration of the maturity of
the Loan pursuant to ARTICLE IX) on a date other than the last day of an
Interest Period for the Loan.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount as reasonably determined by Lender equal to the excess, if
any, of (A) the amount of interest, computed at a rate equal to the LIBOR Base
Rate, that otherwise would have accrued on the principal amount so paid, prepaid
or not borrowed for the period from the date of such payment, prepayment, or
failure to borrow to the last day of the then current Interest Period for the
Loan at the applicable rate of interest for the Loan provided for herein over
(B) the amount of interest that would have accrued for such period on such
principal amount at a rate per annum equal to the interest component of the
amount the Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by the
Lender). Lender shall deliver to Borrower from time to time one or more
certificates setting forth the amount of such loss (and in reasonable detail the
manner of computation thereof) as determined by Lender, which certificates shall
be conclusive absent manifest error.
21
(b) If Borrower fails to prepay the Loan on the date specified in any
prepayment notice delivered pursuant to SECTION 2.05 or 2.06, Borrower on demand
by Lender shall pay to the Administrative Agent for the account of Lender any
amounts required to compensate Lender for any loss incurred by Lender as a
result of such failure to prepay, including, without limitation, any loss, cost
or expenses incurred by reason of the acquisition of deposits or other funds by
Lender to fulfill deposit obligations incurred in anticipation of such
prepayment. Lender shall deliver to Borrower and the Administrative Agent from
time to time one or more certificates setting forth the amount of such loss (and
in reasonable detail the manner of computation thereof) as determined by Lender,
which certificates shall be conclusive absent manifest error.
SECTION 5.05 WITHHOLDING TAXES.
(a) Unless otherwise provided in this SECTION 5.05, all payments made
by Borrower under this Agreement and the Note shall be made free and clear of,
and without deductions or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding, in the case of
the Administrative Agent and Lender, net income taxes and franchise taxes and
other taxes based upon net income imposed on the Administrative Agent or Lender,
as the case may be (all such non-excluded taxes, levies, imposts, dudes,
charges, fees, deductions and withholdings being hereinafter called "Taxes").
Subject to clauses (b) through (e) of this SECTION 5.05, if any Taxes are
required to be withheld from any amounts payable to the Administrative Agent or
Lender, the amounts so payable to the Administrative Agent or Lender shall be
increased to the extent necessary to ensure that (after payment of all Taxes and
any other taxes including income taxes payable by the Administrative Agent or
Lender by reason of the receipt of such increased amount in any jurisdiction in
which the Administrative Agent or Lender is subject to tax) the Administrative
Agent or Lender receives an amount equal to the sum it would have received had
no such withholding been required. Whenever any Taxes are so required to be
withheld by Borrower, as promptly as possible thereafter it shall pay such Taxes
to the relevant Governmental Authority and send to the Administrative Agent, for
its own account or for the account of Lender as the case may be, a certified
copy of an original official receipt received by Borrower showing payment
thereof. If Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, Borrower shall (in addition to the
foregoing) indemnify the Administrative Agent or Lender for any incremental
taxes, interest or penalties that may become payable by the Administrative Agent
or Lender as a result of any such failure.
(b) The Administrative Agent and Lender shall, prior to the Closing
Date or (if later) the date of the initial Loan for the Lender, deliver to
Borrower and the Administrative Agent (i) two copies of a statement that it is
incorporated under the laws of the United States or a state thereof, containing
such information as is required
22
by U.S. Treasury Regulation Section l.1441-5(b), together with two duly
completed copies of Internal Revenue Service Form W-9 (or successor forms), or
(ii) if Lender is not incorporated under the laws of the United States or a
state thereof (A) two duly completed copies of United States Internal Revenue
Service Form 1001 (and Form 8306 if required by applicable law) or 4224 or
successor applicable form, as the case may be, and (B) Internal Revenue Service
Form W-8 or W-9 or successor applicable form. The Administrative Agent and
Lender also agree to deliver to Borrower and (in the case of a Lender) the
Administrative Agent two further copies of the said Form 1001 (and Form 8306 if
required by applicable law) or 4224 and Form W-8 or W-9, or successor applicable
forms or other statement, form or manner of certification, as the case may be,
on or before the date that any such statement, form or other certification
expires or becomes obsolete or after the occurrence of any event requiring a
change in or addition to the most recent statement, form or other certification
previously delivered by it to Borrower, and such extensions or renewals thereof
as may reasonably be requested by Borrower or the Administrative Agent, unless
in any such case any change in treaty, law or regulation has occurred after the
Initial Date with respect to Lender and prior to the date on which any such
delivery would otherwise be required which renders all such statements, forms or
other certifications inapplicable or which would prevent Lender from duly
completing and delivering any such statement, form or other certification with
respect to it and Lender so advises Borrower and the Administrative Agent. The
Administrative Agent and the Lender, as the case may be, shall certify (1) in
the case of a Form 1001 or 4224, that it is entitled to receive payments from
Borrower under this Agreement without deduction or withholding of any United
States federal income taxes, (2) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States backup withholding tax, and (3) in
the case of a Form 8306, that is a bona fide resident of the relevant foreign
country.
(c) If the Administrative Agent or Lender receives a refund in
respect of Taxes (whether directly or by way of offset) paid by Borrower (for
which Borrower has made additional payments pursuant to SECTION 5.05(A) to the
Administrative Agent or such Lender, as the case may be), it shall promptly pay
such refund to the Borrower; PROVIDED, HOWEVER, that Borrower agrees to promptly
return such refund to the Administrative Agent or Lender, as the case may be,
after it receives notice from Lender that it is required to repay such refund.
(d) Borrower shall have no obligation to pay additional amounts
pursuant to clause (a) of this SECTION 5.05 to the Administrative Agent or
Lender with respect to Taxes to the extent that such Taxes or additional amounts
result from (i) the failure of Lender or the Administrative Agent to comply with
its obligations or agreements under this SECTION 5.05, or (ii) any
representation or warranty made in any certificate or otherwise by Lender or the
Administrative Agent pursuant to this SECTION 5.05 proving to have been
incorrect in any material respect when made.
(e) The agreements in this SECTION 5.05 shall survive the termination
of this Agreement and the payment of all obligations payable hereunder.
23
(f) Each assignee of Lender's interest in this Agreement in
conformity with SECTION 11.06 shall be bound by this SECTION 5.05, so that such
assignee will have all of the obligations and provide all of the forms and
statements and all indemnities, representations and warranties required to be
given under this SECTION 5.05.
SECTION 5.06 INDEMNITY. Borrower agrees to indemnify Lender and to
hold Lender harmless from any loss or expense which Lender may sustain or incur
as a consequence of (a) default by Borrower in making any prepayment after
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (b) the making of a prepayment on a day which is not the last day
of an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, for the period from
the date of such prepayment or of such failure to borrow to the last day of such
Interest Period (or, in the case of a failure to borrow, the Interest Period
that would have commenced on the date of such failure) in each case at the
applicable rate of interest for the Loan provided for herein (excluding,
however, the Applicable Margin included therein, if any), over (ii) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to Lender on such amount by placing such amount on deposit for a comparable
period with leading lenders in the interbank eurodollar market. This covenant
shall survive the termination of this Agreement and the payment of the Note and
all other amounts payable hereunder.
SECTION 5.07 DUTY TO MITIGATE.
(a) Lender agrees that, as promptly as practicable after it becomes
aware of the occurrence of an event or the existence of a condition that has
caused it to be affected under SECTION 5.01, 5.02 or 5.05, Lender shall give
notice thereof to Borrower and, to the extent so requested by Borrower and not
inconsistent with Lender's internal policies, Lender shall use reasonable
efforts (including reasonable efforts to change the office in which it is
booking the relevant Loan) to materially reduce any amounts which might
otherwise be payable pursuant to SECTION 5.01, 5.02 or 5.05; PROVIDED, HOWEVER,
that such efforts shall not cause the imposition on Lender of any additional
costs or legal or regulatory burdens deemed by Lender to be material or
otherwise reasonably expected by Lender to be materially disadvantageous to it.
(b) If such reasonable efforts pursuant to SECTION 5.07(A) are
insufficient to eliminate the amounts which are payable pursuant to SECTION
5.01, 5.02 or 5.05, as the case may be, then Borrower may (but subject in any
such case to the payments required by SECTION 5.04), provided that there shall
exist no Default or Event of Default, upon at least five (5) Business Days'
prior written or telephonic notice to Lender and the Administrative Agent,
identify to the Administrative Agent a lending institution (which may be a
Lender) to purchase Lender's outstanding Loan hereunder and, subject to the
approval of the Administrative Agent (which approval shall not be
24
unreasonably withheld) and such alternate lending institution, Lender shall
transfer its Loan owing to such Lender and the Note held by such Lender to such
alternate lending institution (at a price not in excess of par) pursuant to the
provisions of SECTION 11.06(C) and such alternate lending institution shall
become a Lender hereunder. At the time of the assignment, the Borrower shall
pay all accrued interest and all other amounts (including, without limitation,
all amounts payable under SECTION 5.01) owing hereunder to the assigning Lender.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01 CONDITIONS TO THE LOAN. The obligation of Lender to
make the Loan requested to be made by it is subject to the satisfaction, prior
to or concurrently with the making of such Loan, of the following conditions
precedent:
(a) CREDIT FACILITY DOCUMENTS. The Administrative Agent shall have
received (i) this Agreement, executed and delivered on behalf of each
constituent Borrower by a Responsible Officer of Cali; (ii) for the account of
Lender, the Note conforming to the requirements hereof and executed on behalf of
each constituent Borrower by a Responsible Officer of Cali; (iii) the Mortgage,
the Assignment of Leases and the Financing Statements, executed, notarized
(where applicable) and delivered on behalf of each Property Partnership by a
Responsible Officer of Cali; and (iv) the Environmental Indemnity, executed and
delivered by a Responsible Officer of Cali.
(b) RECORDING OF MORTGAGE, ASSIGNMENT OF LEASES AND FINANCING
STATEMENTS. Borrower shall cause the executed Mortgage, Assignment of Leases
and Financing Statements to be filed, registered or recorded in such manner and
in such places as may be required by any present or future law in order to
publish notice of and protect the Lender's interest in and lien or security
interest upon the Mortgaged Property. Except where otherwise prohibited by law,
Borrower will pay all filing, registration or recording fees, and all expenses
incident to the preparation, execution, acknowledgment, and recording of the
Mortgage, any security instrument with respect to the Mortgaged Property, any
instrument of further assurance and all federal, state, county and municipal,
taxes, duties, imposts, assessments and charges arising out of or in connection
with the same. Borrower shall hold harmless and indemnify Lender, its
successors and assigns, against any liability incurred by reason of the
imposition of any tax on the making and recording of the Mortgage.
(c) PARTNERSHIP DOCUMENTS AND CORPORATE DOCUMENTS. The
Administrative Agent shall have received:
(i) a copy of the Operating Partnership's certificate of limited
partnership, certified as of a recent date by the Secretary of State of
Delaware,
25
together with copies of any agreements entered into by the Operating
Partnership governing the terms or relative rights of its partnership
interests;
(ii) a certificate of such Secretary of State, dated as of a recent
date, as to the good standing of and payment of taxes by the Operating
Partnership which lists the organizational documents on file in the office
of such Secretary of State;
(iii) a certificate, dated as of a recent date, as to the good
standing of the Operating Partnership issued by the Secretary of State of
each jurisdiction in which the Operating Partnership is required to be
qualified as a foreign partnership;
(iv) a copy of Cali's certificate of incorporation, including all
amendments thereto, certified as of a recent date by the Secretary of State
of Maryland;
(v) a certificate of such Secretary of State, dated as of a recent
date, as to the good standing of and payment of taxes by Cali which lists
the organizational documents on file in the office of such Secretary of
State;
(vi) a certificate of the Secretary or Assistant Secretary of Cali,
dated the Closing Date, and certifying (A) that attached thereto is a true
and complete copy of the partnership agreement of the Operating Partnership
as in effect on the date of such certification, (B) that attached thereto
is a true and complete copy of the bylaws of Cali as in effect on the date
of such certification, (C) that attached thereto is a true and complete
copy of resolutions adopted by the board of directors of Cali authorizing
the borrowing hereunder, the execution, delivery and performance in
accordance with their respective terms of this Agreement, the Mortgage, the
Note to be executed by Borrower, the other Credit Facility Documents and
any other documents required or contemplated hereunder or thereunder, (D)
that the certificate of limited partnership of the Operating Partnership
has not been amended since the date of the last amendment thereto indicated
on the certificate of the Secretary of State furnished pursuant to clause
(i) above, except to the extent specified in such Secretary's certificate,
(E) that the certificate of incorporation of Cali has not been amended
since the date of the last amendment thereto indicated on the certificate
the Secretary of State furnished pursuant to clause (iv) above, except to
the extent specified in such Secretary's certificate, (F) that attached
thereto is a true and complete copy of the Merger Agreement as in effect on
the date of such certification and (G) as to the incumbency and specimen
signature of each officer of Cali executing this Agreement, the Mortgage,
the Note, the other Credit Facility Documents or any other document
delivered by the Operating Partnership in connection herewith or therewith
(such certificate to contain a
26
certification by another officer of Cali as to the incumbency and signature
of the officer signing the certificate referred to in this clause (iv)).
(d) LEGAL OPINIONS. The Administrative Agent shall have received the
executed legal opinion of Pryor, Cashman, Xxxxxxx & Xxxxx, counsel to the
Borrower, which legal opinion shall cover such matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(e) FEDERAL RESERVE REGULATIONS. The Administrative Agent shall be
satisfied that the provisions of Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System will not be violated by the transactions
contemplated hereby.
(f) LITIGATION. No litigation shall be pending or threatened which
would be likely to materially and adversely affect the assets, operations,
business, condition, financial or otherwise, or prospects of Borrower and its
Subsidiaries, taken as a whole, or which could reasonably be expected to
materially adversely affect the ability of Borrower to fulfill its Obligations
hereunder or otherwise materially impair the interests in respect thereof of the
Administrative Agent.
(g) OFFICER'S CERTIFICATE. The Administrative Agent shall have
received a certificate of a Responsible Officer of Cali dated the Closing Date,
(i) to the effect set forth in clauses (i), (j) and (k) of this SECTION 6.01,
(ii) as to the solvency of Cali and the Operating Partnership, (iii) stating
that there have been no material changes to the Pro Forma Closing Date Balance
Sheet, except such changes as would result from the making of the Loan on the
Closing Date, (iv) stating that all other conditions precedent to the borrowing
of the Loan are satisfied, and (v) such other matters as the Administrative
Agent may reasonably request.
(h) MATERIAL CHANGES. There shall not have been any material and
adverse change with respect to the business, operations, condition or
prospective condition (financial or otherwise), or liabilities of Cali or the
Operating Partnership.
(i) DEFAULT. There shall not be any Default (as defined in the
Mortgage) or Event of Default (as defined in the Mortgage) under the Mortgage.
(j) EVENTS OF DEFAULT. There shall not have occurred and be
continuing any Default or Event of Default under this Agreement on the date of
making the Loan or after making the Loan.
(k) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by Borrower in ARTICLE VII or in or pursuant to any Credit
Facility Document qualified as to materiality shall be true and correct in all
respects and those not so qualified shall be true and correct in all material
respects, in each case on and as
27
of the date of the making of such Loan with the same force and effect as if made
on and as of such date.
(l) SECURITY. All Obligations under this Agreement, shall be secured
at all times by (i) a perfected first priority pledge by (x) the Operating
Partnership, pursuant to the Operating Partnership Pledge Agreement, in the
Pledged Partnership Interests described therein and (y) Cali, pursuant to the
Cali Pledge Agreement, in the Pledged Stock described therein, and (ii) a
perfected mortgage lien by the Borrower, pursuant to the Mortgage, in and to the
Mortgaged Property .
(m) AMENDMENT TO EXISTING CREDIT FACILITY DOCUMENTS. The Existing
Credit Facility Documents shall be amended so that all Obligations, including
the Loan under this Agreement, shall become Obligations under the Existing
Credit Facility Documents.
(n) GOVERNMENTAL AND THIRD PARTY APPROVALS. All material
governmental and third party approvals necessary in connection with the
transactions contemplated hereby and the continuing operations of Cali shall
have been obtained and be in full force and effect, and all applicable waiting
periods shall have expired without any action being taken or threatened by any
government authority which would restrain, prevent or otherwise impose adverse
conditions on the transactions contemplated hereby.
(o) NO INJUNCTIONS. No injunction, temporary restraining order or
other similar relief shall have been issued and remain in effect against Cali or
Borrower with respect to the transactions contemplated hereby.
(p) FINANCIAL STATEMENTS. Lender shall have received the audited
consolidated balance sheet of Cali and Xxxx for the fiscal year ended December
31, 1996, and the related consolidated and consolidating statement of
operations, in each case prepared in accordance with GAAP;
(i) Lender shall have received the unaudited
consolidated and consolidating balance sheet of Cali, Mack
and the Company for the fiscal quarter ended September 30,
1997, the related consolidated statements of operations, of
stockholder's equity and of cash flows, and the related
consolidating statement of operations, in each case prepared
in accordance with GAAP (subject to normal year-end audit
adjustments);
(ii) Lender shall have received the Pro Forma
Closing Date Balance Sheet;
28
(iii) Lender shall have received individual
operating statements, satisfactory to Lender, for each of
the Mortgaged Properties for fiscal years ended December 31,
1995, December 31, 1996 and nine months ended September 30,
1997;
(iv) Lender shall have received a current detailed
rent roll, dated no later than September 30, 1997, for each
of the Mortgaged Properties containing such information as
may be reasonably requested by Lender;
and each of the foregoing shall be satisfactory in form and
substance to the Administrative Agent and the Lender in their sole discretion.
(q) FINANCIAL MARKETS. There shall not have been any material and
adverse change in the conditions of the financial and capital markets generally;
trading in securities generally on the New York or American Stock Exchanges
shall not have been suspended or materially limited; a general banking
moratorium shall have not been declared by federal or state authorities and a
moratorium in foreign exchange trading by major international banks or persons
shall not have been declared.
(r) MORTGAGED PROPERTY MATTERS. Lender shall have received all
leases relating to property 50,000 square feet or greater;
(i) Lender shall have completed its due diligence
investigations regarding Cali, Mack and the Mortgaged
Properties and Lender shall be satisfied with the results
thereof including but not limited to the site inspection of
each of the Mortgaged Properties;
(ii) Lender shall have received all insurance
certificates required pursuant to Section 8.06 hereof. The
insurance certificates shall be of the type and in the
amount required;
(iii) Lender shall not be obligated to close the
Loan if any condemnation proceedings have been threatened or
commenced against any part of the Mortgaged Properties;
(iv) Lender shall not be obligated to close the
Loan if any of the Mortgaged Properties has been materially
damaged due to fire or other casualty;
29
(v) Based on Lender's underwriting criteria, in
its sole discretion, the Loan amount shall not be in excess
of 65% of the value of the Mortgaged Properties; and
(vi) Borrower shall also provide evidence,
satisfactory, to Lender, that the Mortgaged Properties
consist of one or more complete and distinct tax parcels.
(s) OTHER DOCUMENTS. The Administrative Agent shall have received
such other documents as the Administrative Agent may reasonably request.
Promptly following the Closing Date, the Administrative Agent shall deliver to
Lender a copy of each document, instrument, agreement and certificate received
by it pursuant to this SECTION 6.01.
(t) CONSUMMATION OF THE MERGER. Upon the consummation of the Merger
the Administrative Agent shall have received:
(i) the Merger Agreement and all other documents related thereto;
(ii) the Assumption Agreement, in substantially the form of Exhibit A
hereto, executed by Xxxx-Xxxx Realty, L.P.;
(iii) a copy of Xxxx-Xxxx Realty, L.P.'s certificate of limited
partnership, certified as of the Merger Consummation Date by the Secretary
of State of Delaware; and
(iv) a certificate of such Secretary of State as to the good standing
of Xxxx-Xxxx Realty, L.P.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce Lender to enter into this Agreement and to make the Loan
provided for herein, Borrower hereby represents and warrants to the
Administrative Agent and the Lender that:
SECTION 7.01 PARTNERSHIP EXISTENCE. The Operating Partnership: (a)
is a limited partnership duly organized, validly existing and in good standing
under the laws of the State of Delaware; (b) has all requisite partnership power
and authority, and has all material governmental licenses, authorizations,
consents and approvals, necessary to own its Property and assets and carry on
its business as now being or as proposed to be conducted; (c) is duly qualified
to do business and is in good standing under the laws of each jurisdiction in
which the nature of the business conducted by it
30
makes such qualification necessary and where failure so to qualify would, in the
reasonable judgment of the Operating Partnership, have a Material Adverse Effect
on the Operating Partnership; and (d) is in compliance with all Requirements of
Law except to the extent that all failures to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect on the
Operating Partnership.
SECTION 7.02 FINANCIAL CONDITION.
(a) Cali and Xxxx have heretofore furnished to Lender their
consolidated balance sheet and statements of income, (i) as of and for the
fiscal year ended December 31, 1996, and (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended September 30, 1997, certified by their
chief financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Operating Partnership and its Subsidiaries, as of such dates and
for such periods in accordance with GAAP, subject to year-end audit adjustments
and the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) Cali has heretofore furnished to Lender its pro forma
consolidated balance sheet as of September 30, 1997, prepared giving effect to
the transactions as if the transaction had occurred on such date. Such pro
forma consolidated balance sheet (i) has been prepared in good faith, (ii) is
based on the best information available to Cali after due inquiry, (iii)
accurately reflects all adjustment necessary to give effect to the transactions
and (iv) presents fairly, in all material respects, the pro forma financial
position of Cali and its Subsidiaries as of September 30, 1997, as if the
transactions had occurred on such date.
(c) Borrower is not entering into the arrangements contemplated
hereby and by the other Credit Facility Documents, and does not intend to make
any transfer or incur any obligations hereunder or thereunder, with actual
intent to hinder, delay or defraud either present or future creditors. On and
as of the Closing Date, on a pro forma basis after giving effect to all
Indebtedness (including the Loan incurred and Liens created, or to be created,
in connection therewith) (w) Borrower expects that the cash available to
Borrower and its Subsidiaries on a consolidated basis, after taking into account
all other anticipated uses of the cash of such Person (including the payments on
or in respect of debt referred to in clause (y) of this SECTION 7.02(B)), will
be sufficient to satisfy all obligations and liabilities of the Operating
Partnership and its Subsidiaries as they become due; (x) the sum of the present
fair saleable value of the assets of the Operating Partnership and its
Subsidiaries on a consolidated basis will exceed the probable liability of the
Operating Partnership and its Subsidiaries on their debts (including their
Guaranty Obligations); (y) the Operating Partnership and its Subsidiaries on a
consolidated basis will not have incurred and do not intend to, or believe that
they will, incur debts beyond their ability to pay such debts as such debts
mature (taking into account the timing and amounts of cash to be received by
such
31
Person from any source, and of amounts to be payable on or in respect of debts
of such Person and the amounts referred to in clause (w)); and (z) the Operating
Partnership and its Subsidiaries on a consolidated basis will have sufficient
capital with which to conduct their present and proposed business and the
Property of the Operating Partnership and its Subsidiaries does not constitute
unreasonably smal1 capital with which to conduct their present or proposed
business. For purposes of this SECTION 7.02(B), "DEBT" means any liability on a
claim, and "CLAIM" means (i) right to payment whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed (other than those being disputed in good faith), undisputed,
legal, equitable, secured or unsecured, or (ii) right to an equitable remedy for
breach of performance if such breach gives rise to a payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured.
SECTION 7.03 LITIGATION. There are no legal or arbitral
proceedings, or any proceedings by or before any governmental or regulatory
authority or agency, now pending or (to the knowledge of Borrower) threatened
against or affecting Borrower, any Subsidiary or any of their Property which, if
adversely determined, would have a Material Adverse Effect on the Borrower or
any Subsidiary or which involve this Agreement or any of the transactions
contemplated thereby
SECTION 7.04 NO BREACH. The execution and delivery of this
Agreement and the other Credit Facility Documents, the consummation of the
transactions herein contemplated and compliance with the terms and provisions
hereof do not and will not conflict with or result in a breach of, or require
any consent or constitute a default under, the certificate of limited
partnership or partnership agreement of the Operating Partnership, any
Requirement of Law, any decree of any court or governmental authority or agency,
or any agreement or instrument to which Borrower is a party or by which it or
any of its Property is bound except any such consent that may have been obtained
prior to the date hereof, and will not result in, or require, the creation or
imposition of any Lien (other than those created pursuant to the Pledge
Agreement) on any of its Property or assets.
SECTION 7.05 PARTNERSHIP POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS. Borrower has all necessary partnership power, authority and legal
right to make, execute, deliver and perform its obligations under this Agreement
and the other Credit Facility Documents; the making and performance by Borrower
of this Agreement and the other Credit Facility Documents have been duly
authorized by all necessary partnership action on its part (including, without
limitation, any required shareholder approvals); and this Agreement, the Pledge
Agreement and the other Credit Facility Documents have been duly and validly
executed and delivered by Borrower and constitute, and the Note when executed
and delivered by Borrower for value will constitute, its legal, valid and
binding obligation, enforceable against Borrower in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general
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applicability affecting the enforcement of creditors' rights, and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 7.06 APPROVALS. No authorizations, approvals or consents
of, and no filings or registrations with, any governmental or regulatory
authority or agency or any securities exchange are necessary for the making and
performance by Borrower of this Agreement and the other Credit Facility
Documents or for the legality, validity or enforceability thereof that have not
been made or obtained. There does not exist any judgment, order, injunction or
other restraint issued or filed or hearing seeking injunctive relief or other
restraint pending or noticed with respect to the making of the Loan by Lender,
the performance by Borrower under any of the related documents to which they are
or will be a party or any of the transactions contemplated thereby.
SECTION 7.07 NO DEFAULT. Neither Borrower nor any of its
Subsidiaries is in default under or with respect to any of their Contractual
Obligations in any respect, or with respect to any order, writ, injunction,
decree, rule or regulation of any Governmental Authority, which default could
reasonably be expected to have a Material Adverse Effect on Borrower or its
Subsidiaries. As of the Closing Date, and as of the date of each Loan, no
Default or Event of Default has occurred and is continuing.
SECTION 7.08 OWNERSHIP OF PROPERTY. (a) Borrower and its
Subsidiaries have good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other Property, and none of such property is
subject to any Lien other than the Liens created under the Existing Credit
Facility Documents.
(b) Borrower and its Subsidiaries have the right to deed, mortgage,
give, grant a security interest in, bargain, sell, alien, enfeoff, convey,
confirm, pledge, assign and hypothecate the Mortgaged Property and that Borrower
and its Subsidiaries possesses an unencumbered fee estate in the Premises and
Improvements (as defined in the Mortgage) and that it owns the Mortgaged
Property free and clear of all Liens (other than the Lien created by the
Mortgage), whatsoever. Borrower shall forever warrant, defend and preserve such
title and the validity and priority of the lien of the Mortgage to Lender
against claims of all persons whomsoever.
SECTION 7.09 TAXES. Borrower and its Subsidiaries have filed or
caused to be filed all material tax returns which, to the knowledge of Borrower,
are required to be filed by them (or extensions of time to file such returns
have been obtained) and have paid all taxes shown to be due and payable on said
returns or on any assessments made against them or any of their Property and all
other taxes, fees or other charges imposed on them or any of their Property by
any Governmental Authority (other than any the amount or validity of which are
being contested in good faith by
33
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of Borrower or its Subsidiaries, as the
case may be); no tax Lien has been filed, and, to the knowledge of Borrower, no
claim is being asserted in writing with respect to any such tax, fee or other
charge which, if foreclosed upon or adversely determined, as the case may be,
would have a Material Adverse Effect on Borrower or its Subsidiaries.
SECTION 7.10 USE OF CREDIT. Borrower is not engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing any "margin stock" as such term is defined in
Regulation U. No part of the proceeds of any Loan will be used for "purchasing"
or "carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time hereafter in effect
or for any purpose which violates the provisions of Regulations G, T, U or X or
other regulations of the Board of Governors of the Federal Reserve System. If
requested by Lender or the Administrative Agent, Borrower will furnish to the
Administrative Agent and Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-l referred to in said Regulation
U.
SECTION 7.11 ERISA. Borrower and its Subsidiaries is in compliance
in all material respects with the provisions of ERISA and the Internal Revenue
Code applicable to Plans. Each Plan, and, to the knowledge of the Operating
Partnership, each Multiemployer Plan, is in compliance in all material respects
with, and has been administered in all material respects in compliance with, the
applicable provisions of ERISA, the Internal Revenue Code and any other federal
or state law. No event or condition has occurred and is continuing as to which
Borrower or any Subsidiary would be under an obligation to furnish a report to
Lender under SECTION 8.08 hereof. No liability to the PBGC that is material to
Borrower and its Subsidiaries taken as a whole has been, or to the Operating
Partnership's best knowledge is reasonably expected to be, incurred with respect
to any Plan.
SECTION 7.12 INVESTMENT COMPANY ACT. Borrower is not, and will not
during the term of this Agreement be, an "investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended. Borrower is not subject to regulation under
any foreign, federal, state or local statute or regulation which limits its
ability to incur Indebtedness.
SECTION 7.13 PUBLIC UTILITY HOLDING COMPANY ACT. Borrower is not,
and will not during the term of this Agreement be, a "holding company," or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 7.14 ENVIRONMENTAL MATTERS. (a) Borrower and its
Subsidiaries has obtained all environmental, health and safety permits, licenses
and other authorizations required under all Environmental Laws to carry on their
business as now
34
being or as proposed to be conducted, except to the extent failure to have any
such permit, license or authorization would not in the reasonable judgment of
Borrower have a Material Adverse Effect on Borrower or its Subsidiaries taken as
a whole. Each of such permits, licenses and authorizations is in full force and
effect and each of Borrower and its Subsidiaries is in compliance with the terms
and conditions thereof, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law or in any
plan, injunction, notice or demand letter issued, entered, promulgated or
approved thereunder, except to the extent failure to comply therewith would not
in the reasonable judgment of Borrower have a Material Adverse Effect on
Borrower and its Subsidiaries taken as a whole.
(b) To the best of Borrower's knowledge, after due inquiry and
investigation: (a) the Mortgaged Property is not in violation of any local,
state, federal or other governmental authority, statute, ordinance, code, order,
decree, law, rule or regulation pertaining to or imposing liability or standards
of conduct concerning environmental regulation, contamination or cleanup
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, as amended ("CERCLA"), the Resource Conservation
and Recovery Act, as amended ("RCRA"), and any state superlien and environmental
cleanup statutes (collectively, "Environmental Laws"); (b) the Mortgaged
Property is not subject to any private or governmental lien or judicial or
administrative, claim or action relating to hazardous and/or toxic, dangerous
and/or regulated, substances, wastes, materials, pollutants or contaminants,
petroleum, petroleum by-products, friable asbestos, tremolite, anthlophylie or
actinolite or polychlorinated biphenyls (including, without limitation, any raw
materials which include hazardous constituents) and any other substances or
material which are included under or regulated by Environmental Laws
(collectively, "Hazardous Substances"); (c) Except as set forth in the
environmental reports delivered to Lender by Borrower, no Hazardous Substances
are or have been discharged, generated, treated, disposed of or stored on,
incorporated in, or removed or transported from the Mortgaged Property otherwise
than in material compliance with all Environmental Laws and in a manner which
has not led to an unpermitted Release of a Hazardous Substance to the
environment; and (d) Except as set forth in the environmental reports delivered
to Lender by Borrower, no underground storage tanks exist on any of the
Mortgaged Property.
(c) Notwithstanding anything previously disclosed to Lender, so long
as Borrower owns or is in possession of the Mortgaged Property, Borrower shall
keep or cause the Mortgaged Property to be kept in material compliance with all
Environmental Laws and shall notify Lender within five (5) business days after
Borrower becomes aware of the existence of any Release of Hazardous Substances
or the storage of any Hazardous Substance in material violation of any
Environmental Laws with respect to, the Mortgaged Property. Borrower shall
remediate any such Hazardous Substances and/or cure any such material
violations, as required by Environmental Law, promptly after Borrower becomes
aware of same, at Borrower's sole expense. Nothing herein shall prevent
Borrower from recovering such expenses from any other party (excluding
35
Lender) that may be liable for such violation, removal or cure. If, at any time
and from time to time while this Agreement, the Mortgage and the other Credit
Facility Documents are in effect, Lender has reasonable cause to believe that
Borrower has violated, or permitted any violations, under this Section 7.14,
then Borrower shall provide, at Borrower's sole expense, a report of inspection
or audit of the Mortgaged Property prepared by a qualified hydro-geologist or
qualified environmental engineer approved by Lender indicating the presence or
absence of Hazardous Substances in, violation of Environmental Laws at the
Mortgaged Property or in violation of this Section. If Borrower fails to
provide such inspection or audit report within thirty (30) days after such
request, Lender may order same, and Borrower hereby grants to Lender and its
employees and agents access to the Mortgaged Property to undertake such
inspection or audit. Lender shall provide Borrower with a copy of the
inspection or audit report and the invoice for such report immediately upon
receipt by the Lender. The reasonable cost of such inspection or audit report
prepared by Lender shall be immediately due and payable, shall be added to the
Loan and shall bear interest at the Post-Default Rate from the date expended by
Lender until paid by Borrower. The obligations and liability of Borrower under
this Section 7.14(c) shall survive any termination, satisfaction, or assignment
of this Agreement or the Mortgage and the exercise by Lender of any of its
rights or remedies hereunder, including but not limited to, the acquisition of
the Mortgaged Property by foreclosure or a conveyance in lieu of foreclosure.
SECTION 7.15 TRUE AND COMPLETE DISCLOSURE. The information,
reports, financial statements, exhibits and schedules furnished by or on behalf
of Borrower to Lender in connection with the negotiation, preparation or
delivery of this Agreement or included herein or delivered pursuant hereto, when
taken as a whole, do not contain any untrue statement of material fact or omit
to state any material fact necessary to make the statements herein or therein,
in light of the circumstances under which they were made, not misleading. All
written financial information, furnished after the date hereof by Borrower to
Lender in connection with this Agreement and the transactions contemplated
hereby will be true, and complete and accurate in every material respect, or (in
the case of projections) based on estimates believed by Borrower in good faith
to be reasonable, on the date as of which such information is stated or
certified. There is no fact known to Borrower that would, in the reasonable
opinion of Borrower, have a Material Adverse Effect on the financial condition
of Borrower and its Subsidiaries taken as a whole that has not been disclosed
herein or in a report, financial statement, exhibit, schedule, disclosure letter
or other writing furnished to Lender for use in connection with the transactions
contemplated hereby.
SECTION 7.16 LABOR MATTERS. Neither Borrower nor any of its
Subsidiaries has experienced any strike, labor dispute, slowdown or work
stoppage due to labor disagreements which has had a Material Adverse Effect on
the respective business of Borrower and its Subsidiaries taken as a whole and to
the best knowledge of Borrower there is no such strike, dispute, slowdown or
work stoppage threatened against Borrower or any of its Subsidiaries.
36
ARTICLE VIII
COVENANTS OF BORROWER
Borrower hereby covenants and agrees that, so long as the Note or Loan
remains outstanding, and until payment in full of all amounts payable by
Borrower to Lender or the Administrative Agent hereunder:
SECTION 8.01FINANCIAL STATEMENTS. Borrower shall deliver to the
Administrative Agent and to Lender:
(a) as soon as available, but in any event within forty-five (45)
days after the end of each of the first three quarterly fiscal periods of each
fiscal year of the Operating Partnership, (i) separate financial statements for
the Mortgaged Property, including a balance sheet an income and expense
statement, occupancy percentages and such other statements as may be required by
the Administrative Agent, prepared in accordance with GAAP, and (ii)
consolidated financial statements of Cali, the Operating Partnership and their
Consolidated Subsidiaries as filed with the Securities and Exchange Commission,
including supplemental schedules of separate consolidating balance sheets and
income and expense statements for each of Cali, the Operating Partnership and
their Consolidated Subsidiaries, a schedule showing the depreciated basis
(determined under GAAP) for each of the assets shown listed on Schedule III, and
such other statements as may be required by the Administrative Agent,
accompanied by a certificate of a Responsible Officer of Cali, which certificate
shall state that said financial statements fairly present the consolidated
financial condition and results of operations of Cali, the Operating Partnership
and their Consolidated Subsidiaries, in accordance with GAAP, consistently
applied (without prejudice to any change made in accordance with the provisions
of SECTION 1.03), as at the end of, and for, such period (subject to normal
year-end audit adjustments);
(b) as soon as available, but in any event within ninety (90) days
after the end of each fiscal year of the Operating Partnership, (i) separate
financial statements for the Mortgaged Property, including a balance sheet, an
income and expense statement, occupancy percentages and such other statements as
may be required by the Administrative Agent, prepared in accordance with GAAP,
and (ii) consolidated financial statements of Cali, the Operating Partnership
and their Consolidated Subsidiaries as filed with the Securities and Exchange
Commission, including supplemental schedules of separate consolidating balance
sheets and income and expense statements for each of Cali, the Operating
Partnership and their Consolidated Subsidiaries, a schedule showing the
depreciated basis (determined under GAAP) for each of the assets listed on
SCHEDULE III, and such other statements as may be required by the Administrative
Agent, accompanied, in the case of the consolidated financial statements
referred to in this clause (ii), by a report and opinion thereon by Price
Waterhouse or another independent certified public accountant of recognized
national standing acceptable to the Administrative Agent which report shall (A)
be unqualified as to going concern and scope of audit, (B) state that said
financial statements fairly present the consolidated
37
financial condition and results of operations of Cali, the Operating Partnership
and their Consolidated Subsidiaries as at the end of, and for, such fiscal year
in accordance with GAAP, and (C) contain no material exceptions or
qualifications except for qualifications relating to accounting changes (with
which such independent public accountants concur) in response to FASB releases
or other authoritative pronouncements PROVIDED that, if Cali has filed an
extension for the filing of such statements referred to in this clause (ii),
Cali shall deliver such statement to the Administrative Agent within ten (10)
days after filing thereof with the SEC which filing shall be within fifteen (15)
days of Cali's filing for such extension or such sooner time as required to
avert a Material Adverse Effect on Cali; and
(c) on a quarterly basis, a true, complete and correct rent roll for
the Mortgaged Property, identifying each tenant, the expiration date of such
tenant's lease, the space covered by such lease, all extension, renewal,
termination or expansion rights, if any, of such tenant and any portion of the
Mortgaged Property demised to such tenant, if any, which is not occupied for the
conduct of business by such tenant or any subtenant of such tenant, together
with a certificate of the Operating Partnership, dated as of the date of
delivery of such rent roll, certifying that such rent roll is true, correct and
complete in all material respects as of its date.
All such financial statements under (a) and (b) above shall be complete and
correct in all material respects and shall be prepared in reasonable detail and
in accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
SECTION 8.02 CERTIFICATES AND OTHER INFORMATION. The Operating
Partnership shall deliver to the Administrative Agent and to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in SECTION 8.01(B), a certificate of the independent certified
public accountants reporting on such financial statements stating that in making
the examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in SECTIONS 8.01(A) and 8.01(B), a certificate of a Responsible
Officer of Cali stating that, to the best of such Responsible Officer's
knowledge, the Operating Partnership and each of its Subsidiaries has during
such period observed or performed all of its covenants and other agreements, and
satisfied every condition, in all material respects, contained in this
Agreement, the Note and the other Credit Facility Documents to which it is a
party to be observed, performed or satisfied by it, and that no Default or Event
of Default has occurred or is continuing except as specified in such
certificate;
38
(c) promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent or made available by the
Operating Partnership or any of its Subsidiaries to its partners generally, of
all regular and periodic reports and all registration statements and
prospectuses, if any, filed by any of them with any securities exchange or with
the Securities and Exchange Commission, or any comparable foreign bodies, and of
all press releases and other statements made available generally by any of them
to the public concerning material developments in the business of the Operating
Partnership or any of its Subsidiaries PROVIDED that, if Cali has filed an
extension for the filing of such statement, Cali shall deliver such statement to
the Administrative Agent within ten (10) days after filing thereof with the SEC
which filing shall be within fifteen (15) days of Cali's filling for such
extension or such sooner time as required to avert a Material Adverse Effect on
Cali; and
(d) promptly upon any executive officer of Cali obtaining knowledge
(i) of any Default, or becoming aware that any Lender has given notice or taken
any other action with respect to a claimed Event of Default or (ii) that any
Person has given any notice to the Operating Partnership or taken any other
action with respect to a claimed default or event or condition of the type
referred to in paragraph 9.01 (b) of ARTICLE IX or any condition or event which
would be required to be disclosed in a current report filed by the Operating
Partnership with the Securities and Exchange Commission on Form 8-K (other than
Item 5 as in effect on the date hereof) if the Operating Partnership were
required to file such reports under the Securities Exchange Act of 1934, as
amended, or the rules and regulations thereunder (or any successor thereof), a
certificate of the president or chief financial officer of Cali specifying the
nature and period of existence of any such condition or event, or specifying the
notice given or action taken by such holder or Person and the nature of such
claimed Event of Default or condition and what action the Operating Partnership
has taken, is taking and proposes to take with respect thereto.
SECTION 8.03 LITIGATION. Borrower will promptly give to Lender
notice of all legal or arbitral proceedings, and of all proceeding by or before
any governmental or regulatory authority or agency, and any material development
in respect of such legal or other proceedings, affecting Borrower or any of its
Subsidiaries, except proceedings which, if adversely determined, would not, in
the reasonable judgment of Borrower, have a Material Adverse Effect on Borrower
or its Subsidiaries.
SECTION 8.04 CONDUCT OF BUSINESS, EXISTENCE, ETC. Borrower will,
and will cause each of its Subsidiaries to:
(a) continue to engage in business of the same general type as now
conducted by it; do or cause to be done all things necessary to preserve, renew
and maintain in full force and effect its legal existence; and take all
reasonable action to
39
maintain all rights, privileges, licenses and franchises necessary or desirable
in the normal conduct of its business, except such rights, privileges, licenses
and franchises with respect to which the failure to maintain could not,
individually or in the aggregate, have a Material Adverse Effect on Borrower or
its Subsidiaries;
(b) comply with all Contractual Obligations and Requirements of Law
if the failure to comply with such requirements would reasonably be expected to
have a Material Adverse Effect on Borrower or its Subsidiaries;
(c) pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its Property
prior to the date on which penalties attach thereto, except for any such tax,
assessment, charge or levy the payment of which is being contested in good faith
and by proper proceedings and against which any reserves required by GAAP are
being maintained or the failure to pay or discharge which would not, in the
reasonable judgment of Borrower, have a Material Adverse Effect on the Borrower
or its Subsidiaries;
(d) maintain all of its Property used or useful in its business in
good working order and condition, ordinary wear and tear excepted, if failure to
so maintain such Property would have a Material Adverse Effect on Borrower or
its Subsidiaries, and, from time to time (i) make all necessary and proper
repairs, renewals, replacements, additions and improvements thereto, and (ii)
comply at all times with the provisions of all material leases and other
material agreements to which it is a party so as to prevent any loss or
forfeiture thereof or thereunder;
(e) keep proper records and books of account, in which full, true and
complete entries in conformity with GAAP consistently applied and in accordance
with all Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities; and
(f) permit, upon reasonable notice, representatives of the
Administrative Agent and any Lender, during normal business hours, to examine,
copy and make extracts from its books and records, to inspect any of its
Property, and to discuss its business and affairs with its officers and
independent certified accountants, all to the extent reasonably requested by
Lender; PROVIDED, HOWEVER, that to the extent any of such information Borrower
may require that the Administrative Agent and any Lender keep such information
confidential; PROVIDED FURTHER, HOWEVER, that the Administrative Agent and any
Lender may disclose all or part of such information to (i) a third party,
provided that such third party agrees to keep the same confidential and not to
use such information for competitive purposes; or (ii) required by law; or (iii)
requested by any regulatory authorities.
SECTION 8.05 PAYMENT OF OBLIGATIONS. Borrower will, and will cause
each Subsidiary to, pay, discharge or otherwise satisfy at or before maturity or
40
before they become delinquent, as the case may be, all its obligations of
whatever nature, under the terms of each mortgage, indenture, security
agreement, other debt instrument and contract and agreement by which it is bound
or to which it is a party or subject, except (a) where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of Borrower or its Subsidiaries, as the case may be, (b) where the
failure to pay such obligations could not, individually or in the aggregate,
have a Material Adverse Effect on Borrower or its Subsidiaries, or (c) for trade
and other accounts payable in the ordinary course of business in accordance with
customary trade terms and which are not overdue for a period of more than ninety
(90) days (or any longer period if longer payment terms are accepted in the
ordinary course of business) or, if overdue for more than ninety (90) days (or
such longer period), as to which a dispute exists and adequate reserves in
conformity with GAAP have been established on the books of Borrower and its
Subsidiaries, as the case may be.
SECTION 8.06 INSURANCE. Borrower, at its sole cost and expense, will
keep the Mortgaged Property insured during the entire term of the Loan for the
mutual benefit of Borrower and Lender against loss or damage by fire and against
loss or damage by other risks and hazards covered by a standard extended
coverage insurance policy including, but not limited to, fire, lightning,
windstorm, hail, explosion, riot attending a strike, riot, civil commotion,
aircraft, vehicles, smoke, vandalism, malicious mischief, burglary and theft,
and to the extent required by Lender, earthquake or any other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property. Such insurance shall be in an amount not less than the lesser of (i)
the then full replacement cost of the Mortgaged Property, without deduction for
physical depreciation, or (ii) the outstanding principal balance of the
Indebtedness; but in any event an amount sufficient to ensure that the insurer
issuing said policies would not deem Borrower a co-insurer under said policies.
The policies of insurance carried in accordance with this paragraph shall be
paid annually in advance and shall contain the "Replacement Cost Endorsement"
with a waiver of depreciation.
(a) Borrower, at its sole cost and expense, for the mutual benefit of
Borrower and Lender, shall also obtain and maintain during the entire term of
this Mortgage the following policies of insurance:
(i) Flood insurance (meeting the current requirement of the Federal
Insurance Administration) if any part of the Mortgaged Property is located in an
area identified by the Federal Emergency Management Agency as an area having
special flood hazards and in which flood insurance has been made available under
the National Flood Insurance Act of 1968 (and any successor act thereto) in an
amount at least equal to the lesser of (A) the stated principal amount of the
Note; or (B) the maximum amount of coverage available to Borrower under the
Flood Disaster Protection Act of 1973 (and any successor act thereto).
41
(ii) Comprehensive general liability insurance, including bodily
injury, death and property damage liability, and umbrella liability insurance
against any and all claims, including all legal liability to the extent
insurable imposed upon Borrower and all court costs and attorneys' fees and
expenses, arising out of or connected with the possession, use, leasing,
operation, maintenance or condition of the Mortgaged Property in such amounts as
are generally available and are generally required by institutional lenders for
properties comparable to the Mortgaged Property but in no event for a combined
single limit of less than $30,000,000. In the event that any payment of
proceeds is made under any umbrella liability insurance policy, Mortgagor shall
immediately purchase additional liability insurance coverage so that at all
times there shall be no less than $30,000,000 of liability insurance coverage;
(iii) Business interruption and/or rental loss insurance (for all
losses regardless of cause, and with no exclusions) in an amount equal to the
aggregate annual amount of all rents, additional rents (including, without
limitation, percentage rents) payable by all of the tenants under the Leases
(whether or not such Leases are terminable in the event of a fire or casualty)
and profits or other income from the Mortgaged Property, which business
interruption insurance and/or rental loss insurance shall cover such losses for
a period of at least twelve (12) months after the date of the fire or other
casualty in question. The amount of such insurance shall be increased from time
to time during the term of this Mortgage as and when Lender requires, to reflect
all rent, additional rent, increased rent and increased additional rent payable
by all new or renewal tenants, and all increased profits or other income from
the Mortgaged Property.
(iv) Insurance against loss or damage from explosion of steam boilers,
air conditioning equipment, high pressure piping, machinery and equipment,
pressure vessels or similar apparatus now or hereafter installed in the
Improvements (excepting any such apparatus located within and serving individual
residential units of the Improvements, if any).
(v) Broad form boiler and machinery insurance covering all boilers or
other pressure vessels, machinery and equipment located in, on or about the
Mortgaged Property and insurance against loss of occupancy or use arising from
any such breakdown in such amounts as are generally required by institutional
lenders for properties comparable to the Real Estate;
(vi) Statutory workers' compensation insurance (to the extent the
risks to be covered thereby are not already covered by other policies of
insurance maintained by it), with respect to any work on or about the Mortgaged
Property;
(vii) Such other insurance as may from time to time be reasonably
required by Lender in order to protect its interests.
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(b) All policies of insurance (individually, a "POLICY", and
collectively the "POLICIES") required pursuant to this Agreement: (i) shall be
issued by an insurer or insurers satisfactory to Lender, in its sole discretion;
(ii) shall contain a mortgagee non-contribution clause satisfactory to Lender,
in its sole discretion, naming Lender as an additional insured and as the person
to which all payments made by such insurance company shall be paid; (iii) shall
be maintained throughout the term of this Loan without cost to Lender; (iv)
shall contain such provisions as Lender deems necessary or desirable to protect
its interest including, without limitation, endorsements providing that neither
Borrower, Lender nor any other party shall be a co-insurer under said Policies
and that Lender shall receive at least thirty (30) days prior written notice of
any modification, termination or cancellation of the applicable Policy; and (v)
shall be satisfactory in form and substance to Lender and shall be approved by
Lender as to amounts, form, risk coverage, deductibles, loss payees and
insureds. Borrower shall pay the premiums for such Policies (the "INSURANCE
PREMIUMS") as the same become due and payable. Not later than thirty (30) days
prior to the expiration date of each of the Policies, Borrower will deliver to
Lender satisfactory evidence of the renewal of each expiring Policy. On or
before the date hereof, Borrower shall deliver to Lender certificates evidencing
the Insurance Policies, meeting the above-described requirements.
SECTION 8.07 LIMITATION ON LIENS. Borrower will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon the Mortgaged Property other than the Liens created under the
Mortgage.
SECTION 8.08 ERISA. The Operating Partnership shall deliver to the
Administrative Agent as soon as possible, and in any event within ten (10) days
after the Operating Partnership knows or has reason to believe that any of the
events or conditions specified below with respect to any Plan or Multiemployer
Plan has occurred or exists, a statement signed by a senior financial officer of
the Operating Partnership setting forth details respecting such event or
condition and the action, if any, that the Operating Partnership or its ERISA
Affiliate proposes to take with respect thereto (and a copy of any report or
notice required to be filed with or given to PBGC by the Operating Partnership
with respect to such event or condition):
(a) any reportable event as defined in Section 4043(b) of ERISA and
the regulations issued thereunder, with respect to a Plan, as to which PBGC has
not by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within thirty (30) days of the occurrence of such event (PROVIDED,
HOWEVER, that a failure to meet the minimum funding standard of Section 412 of
the Internal Revenue Code or Section 302 of ERISA, including, without
limitation, the failure to make on or before its due date a required installment
under Section 412(m) of the Internal Revenue Code or Section 302(e) of ERISA,
shall be a reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Internal Revenue Code); and any request
for a waiver under Section 412(d) of the Internal Revenue Code for any Plan;
43
(b) the distribution under Section 4041 of ERISA of a notice of
intent to terminate any Plan or any action taken by the Operating Partnership or
an ERISA Affiliate to terminate any Plan;
(c) the institution by PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan, or the receipt by the Operating Partnership or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has been taken by PBGC with
respect to such Multiemployer Plan;
(d) the complete or partial withdrawal from a Multiemployer Plan by
the Operating Partnership or any ERISA Affiliate that results in liability under
Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary
liability as a result of a purchaser default) or the receipt by the Operating
Partnership or any ERISA Affiliate of notice from a Multiemployer Plan that it
is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or
that it intends to terminate or has terminated under Section 4041A of ERISA;
(e) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Operating Partnership or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within thirty
(30) days; and
(f) the adoption of an amendment to any Plan that, pursuant to
Section 40l(a)(29) of the Internal Revenue Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such Plan is a
part if the Operating Partnership or an ERISA Affiliate fails to timely provide
security to the Plan in accordance with the provisions of said Sections.
SECTION 8.09 USE OF PROCEEDS. Borrower will use the proceeds of the
Loan hereunder solely for the purpose of, (i) prepaying the holders of which
have not consented to the assumption of such debt by Cali, (ii) paying certain
fees and expenses incurred in connection therewith and (iii) payments made in
connection with the consummation of the Merger.
SECTION 8.10 ENVIRONMENTAL LAWS. Borrower shall:
(a) promptly notify the Administrative Agent upon any executive
officer of Borrower becoming aware of any violation or threatened violation or
non-compliance with, or liability or threatened liability under any
Environmental Laws which, when taken together with all other pending violations
could reasonably be expected to have a Material Adverse Effect on Borrower and
its Subsidiaries taken as a whole, and promptly furnish to the Administrative
Agent all notices of any nature which Borrower may receive from any Governmental
Authority or other
44
Person with respect to any violation, or threatened violation or non-compliance
with, or liability or threatened liability under any Environmental Laws which,
in any case or when taken together with all such other notices, could reasonably
be expected to have a Material Adverse Effect on Borrower and its Subsidiaries
taken as a whole;
(b) materially comply with all Environmental Laws applicable to
Borrower and obtain and comply with and maintain any and all licenses,
approvals, registrations or permits required of Borrower by Environmental Laws;
and use reasonable efforts to ensure material compliance by all tenants and
subtenants with all Environmental Laws applicable to their operations;
(c) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required of Borrower or its
Subsidiaries under all Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental Authorities;
and
(d) defend, indemnify, protect and hold harmless the Administrative
Agent and Lender, and their respective employees, agents, officers and directors
(each, an "INDEMNIFIED PERSON"), from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, defenses, judgments, suits,
proceedings, losses, obligations, costs and expenses of any kind or nature
whatsoever, known or unknown, contingent or otherwise incurred by an Indemnified
Person to the extent, arising out of, or in any way related to the violation of
or noncompliance with any Environmental Laws (relating to (1) the past, present
or future ownership, possession, control or operation of any Property or any
asset of Borrower or its Subsidiaries, (2) the past, present or future condition
of any site or facility owned, operated or leased by Borrower or any of its
Subsidiaries, or (3) any Release or threatened Release of any Hazardous
Substances from any such site or facility, including any such Release or
threatened Release which shall occur during any period when the Administrative
Agent on behalf of Lender shall be in possession of any such site or facility
following the exercise by the Administrative Agent on behalf of Lender of any of
their rights and remedies hereunder or under any related document) unless such
Release or threatened Release shall be caused by the gross negligence of the
Indemnified Person, including, without limitation, reasonable attorney and
consultant fees, investigation and laboratory fees and costs ("INDEMNIFIED
EXPENSES"), but excluding therefrom, taking into account all principles of
equitable apportionment, all claims, demands, penalties, fines, liabilities,
settlements, damages, defenses, judgments, suits, proceeds, losses, obligations,
costs and expenses of any kind or nature whatsoever, known or unknown,
contingent or otherwise, arising out of or resulting, directly or indirectly,
from (i) the gross negligence or willful misconduct of such Indemnified Person,
or (ii) any acts or omissions of any Indemnified Person occurring after such
Indemnified Person is in possession of, or controls the operation of, any
Property or asset of Borrower or any of its Subsidiaries, except to the extent
such Indemnified Expenses arise from any act or omission, condition or
45
event in existence on or before the date such Indemnified Person is in
possession of, or controls the operation of, any Property or asset of Borrower
or any of its Subsidiaries, even if the act or omission, condition or event (x)
is not discovered until after such date, or (y) becomes an Indemnified Expense
as a result of a change in any Environmental Law that becomes effective after
such date.
(e) The agreements in SECTION 8.10(D) shall survive repayment of the
Note and all other amounts payable hereunder and any termination or expiration
of any of the Credit Facility Documents.
SECTION 8.11 HAZARDOUS SUBSTANCES. Borrower shall not cause or
permit, or permit any Subsidiary to cause or permit, any of its Property or
assets to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose, transfer, produce or process Hazardous Substances, except in
compliance in all material respects with all applicable Environmental Laws, nor
release, discharge, dispose of or permit or suffer any release or disposal as a
result of any intentional act or omission on its part of Hazardous Substances
onto any such Property or asset in material violation of any Environmental Law.
SECTION 8.12 CLAIMS. Borrower shall report to the Administrative
Agent, within fifteen (15) days of the date on which an executive officer
becomes aware of the same, any legal claims against Borrower in excess of
$l,000,000 over the amount directly covered by insurance.
SECTION 8.13 ESTOPPEL CERTIFICATES, SUBORDINATION AGREEMENTS, ETC.
(a) Within ninety (90) business days after request by the Lender, Borrower will
furnish Lender with estoppel certificates, in form and content reasonably
satisfactory to Lender, for (x) 100% of the leases for 10,000 square feet and
larger and (y) 50% of the leases below 10,000 square feet, from all tenants
(other than tenants under leases for residential purposes, congregate care
service or mini-warehouse storage rentals (unless such storage rental exceed ten
percent (10%) of the rentable square footage of such storage facility)
(collectively "Residential Leases")), or if any tenant fails to provide such
estoppel certificate, Borrower shall provide a certificate with respect to the
tenancy of such tenant, in form and substance satisfactory to Lender.
(b) Within ninety (90) business days after request by the Lender,
Borrower will furnish Lender with Subordination Agreements, in form and content
reasonably satisfactory to Lender, for (x) 100% of the leases for 10,000 square
feet and larger and (y) 50% of the leases below 10,000 square feet, from all
tenants (other than tenants under Residential Leases).
(c) Within ninety (90) business days after the request by the Lender,
Borrower will furnish Lender with (i) Phase I environmental site assessment
environmental reports, (ii) architectural reports and (iii) engineering reports,
on the
46
Mortgaged Properties in form and content reasonably satisfactory to Lender and
prepared by qualified professionals reasonably satisfactory to Lender.
(d) Within ninety (90) business days after the request by the Lender,
Borrower will furnish Lender with the permanent certificate(s) of occupancy for
the Mortgaged Properties, in form and content reasonably satisfactory to Lender.
Borrower agrees to pay or reimburse Lender and the Administrative
Agent for all its costs and expenses incurred in (i) the enforcement of
Borrower's compliance to the covenants contained in this ARTICLE VIII or (ii)
the preservation of Lender's rights under this ARTICLE III.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.01 If one or more of the following events (herein called
"EVENTS OF DEFAULT") shall occur and be continuing:
(a) Borrower shall default in the payment when due (whether at stated
maturity or upon mandatory or optional prepayment or otherwise) of any principal
of the Loan, or shall default for five (5) Business Days in the payment when due
of any interest on the Loan, any fee or any other amount payable by it
hereunder, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise; or
(b) Any Event of Default (as defined in the Mortgage) shall occur or
be continuing; or
(c) Borrower or any of its subsidiaries shall (i) default in the
payment of principal of or interest on any other Indebtedness or in the payment
of any Guaranty Obligation (x) in respect of any recourse obligations in an
aggregate amount in excess of $1,000,000 or (y) in respect of any without
recourse obligations in an aggregate amount in excess of $25,000,000, at any one
time to any third party when due (whether at scheduled maturity or by required
prepayment, acceleration, demand or otherwise) and such default continues after
the applicable notice or grace period, if any, specified in the agreement or
instrument relating to such Indebtedness, or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guaranty Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, and such default continues after the applicable notice or grace
period, if any, specified in the agreement or instrument relating to such
Indebtedness, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guaranty Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice
47
if required, such Indebtedness to become due prior to its stated maturity or
such Guaranty Obligation to become payable; or
(d) Any representation, warranty or certification made or deemed made
herein or under any other Credit Facility Document (or in any modification or
supplement hereto or thereto) by Borrower or any of its Subsidiaries, or in any
certificate or document furnished to Lender pursuant to the provisions of this
Agreement or any such other Credit Facility Document, shall prove to have been
false or misleading as of the time made or furnished in any material respect; or
(e) Borrower, after giving effect to any requirement of notice or
opportunity to cure, shall default in the observance or performance of any
agreement contained (i) IN SECTION 8.02 of this Agreement, or (ii), in the
Mortgage; or
(f) Borrower or any of its Subsidiaries shall default in the
performance of any of its other obligations under this Agreement or any other
Credit Facility Document and such default shall continue unremedied for a period
of thirty (30) days after the earlier of (i) Borrower's knowledge of such
default or (ii) notice thereof to Borrower by the Administrative Agent, which
Default cannot be cured by the payment of a sum of money; PROVIDED, HOWEVER,
that if such non-monetary Default is susceptible of cure but cannot reasonably
be cured within such thirty (30) day period, and if Borrower or Subsidiary shall
have commenced to cure such Default within such thirty (30) day period and
thereafter diligently and expeditiously proceeds to cure the same, such thirty
(30) day period shall be extended for such time as is reasonably necessary for
Borrower or such Subsidiary in the exercise of due diligence to cure such
Default, such additional period not to exceed ninety (90) days; or
(g) Borrower or any of its Subsidiaries shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts become due;
or
(h) Borrower or any of its Subsidiaries shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee, examiner or liquidator of itself or of all or a substantial
part of its Property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy Code (or the
equivalent under the laws of another jurisdiction), (iv) file a petition seeking
to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed against it in
an involuntary case under the Bankruptcy Code, or (vi) take any corporate action
for the purpose of effecting any of the foregoing; or
(i) A proceeding or case shall be commenced, without the application
or consent of Borrower or any of its Subsidiaries, in any court of competent
48
jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment of its debts, (ii)
the appointment of a receiver, custodian, trustee, examiner, liquidator or the
like of Borrower or such Subsidiary or of all or any substantial part of its
Property, or (iii) similar relief in respect of Borrower or such Subsidiary
under any law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect for a period of
ninety (90) or more days; or an order for relief against Borrower or such
Subsidiary shall be entered in an involuntary case under the Bankruptcy Code (or
the equivalent under the laws of another jurisdiction); or
(j) final judgment or judgments for the payment of money in excess of
$5,000,000 (or the equivalent in another currency) in the aggregate (exclusive
of judgment amounts fully covered by insurance) shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction against
Borrower or its Subsidiaries and the same shall not be satisfied or discharged
(or provision shall not be made for such satisfaction or discharge), or a stay
of execution thereof shall not be procured, within sixty (60) days from the date
of entry thereof and Borrower or the relevant Subsidiary shall not, within said
period of sixty (60) days, or such longer period during which execution of the
same shall have been stayed, appeal therefrom and cause the execution thereof to
be stayed during such appeal; or
(k) An event or condition specified in SECTION 8.08 shall occur or
exist with respect to any Plan or Multiemployer Plan and, as a result of such
event or condition, together with all other events or conditions, the Operating
Partnership or any ERISA Affiliate shall incur or in the reasonable opinion of
the Administrative Agent shall be reasonably likely to incur a liability to a
Plan, a Multiemployer Plan or the PBGC (or any combination of the foregoing)
which would have a Material Adverse Effect on Borrower or its Subsidiaries; or
(l) (i) The Mortgage, for any reason, shall cease to be or not be in
full force and effect, or Cali, Borrower or any of its Subsidiaries which is a
party to the Mortgage shall so assert, or (ii) the Lien created by the Mortgage
shall cease to be or not be enforceable and of the same effect and priority
purported to be created thereby; or
(m) Cali creates, incurs or suffers to exist any Lien, charge or
encumbrance on the Pledged Stock, Pledged Partnership Interests or Mortgaged
Property described in the Cali Pledge Agreement, Operating Partnership Pledge
Agreement or Mortgage respectively; or
(n) Any Default or Event of Default occurs under the Existing Credit
Facility Documents;
49
THEREUPON: (1) in the case of an Event of Default other than one
referred to in clause (h) or (i) of this ARTICLE IX, either or both of the
following actions may be taken: with the consent of Lender, the Administrative
Agent may or upon the request of Lender, the Administrative Agent shall, by
notice to Borrower, declare the Loan hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement and the Note to be due and
payable forthwith, whereupon the same shall immediately become due and payable
without presentment demand, protest or other formalities of any kind, all of
which are hereby expressly waived by Borrower; and (2) in the case of the
occurrence of an Event of Default referred to in clause (h) or (i) of this
ARTICLE IX, the Loan hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Note shall immediately become due and
payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by Borrower. In addition, Lender may
exercise any and all remedies available under the Mortgage, the Assignment of
Lease and the other Credit Facility Documents.
ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION 10.01 APPOINTMENT. The general administration of the Credit
Facility Documents and any other documents contemplated by this Agreement shall
be by the Administrative Agent or its designees. Lender hereby irrevocably
designates and appoints PSC as the Administrative Agent of such Lender under
this Agreement and the other Credit Facility Documents, and Lender irrevocably
authorizes PSC as the Administrative Agent for such Lender, at its discretion,
to take or refrain from taking such action on its behalf under the provisions of
this Agreement and the other Credit Facility Documents and to exercise or
refrain from exercising such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Credit Facility Documents, together with which other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any
other Credit Facility Document or otherwise exist against the Administrative
Agent.
SECTION 10.02 DELEGATION OF DUTIES. The Administrative Agent may
execute any of its duties under this Agreement and the other Credit Facility
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.
5O
SECTION 10.03 EXCULPATORY PROVISIONS.
(a) Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Credit Facility
Document, or responsible to Lender or to any of them for the consequences of any
oversight or error of judgment, or for any loss, unless the same shall happen
through its or such Person's own gross negligence or wilful misconduct, or (ii)
responsible in any manner to Lender for any recitals, statements,
representations or warranties made by Borrower or any officer thereof contained
in this Agreement or any other Credit Facility Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with this Agreement or any
other Credit Facility Document or for the due execution, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, the
Note, or any other Credit Facility Document, or for the perfection of any
security interest contemplated by this Agreement, any Credit Facility Document
or any related agreement, document or order, or for the designation or failure
to designate this transaction as a '"Highly Leveraged Transaction for regulatory
purposes, or for any failure of Borrower to perform its obligations hereunder or
under any other Credit Facility Document. The Administrative Agent shall not be
under any obligation to Lender to ascertain or to inquire as to the observance
or performance of any of the agreements or covenants contained in, or teens or
conditions of, this Agreement or any other Credit Facility Document or to
inspect the Property, books or records of Borrower.
(b) Neither the Administrative Agent nor any of its directors,
officers, employees, or agents shall have any responsibility to Borrower on
account of the failure or delay in performance or breach by Lender or Borrower
of any of their respective obligations under this Agreement or the Note or any
related agreement or document or in connection herewith or therewith.
SECTION 10.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and it shall be entitled to rely
upon advice and statements of legal counsel (including, without limitation,
counsel to the Borrower), independent accountants and other experts selected by
the Administrative Agent. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Facility Document unless it shall first receive such
51
advice or concurrence of Lender as it deems appropriate or it shall first be
indemnified to its satisfaction by Lender against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement, the Note and the
other Credit Facility Documents in accordance with a request of Lender, and any
such request and any action xxx or failure to act pursuant thereto shall be
binding upon Lender and all future holders of the Note.
SECTION 10.05 NOTICE OF DEFAULT. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Administrative Agent has received notice from
Lender or Borrower pursuant to this Agreement, describing such Default or Event
of Default and stating that such notice is a "notice of default." In the event
that the Administrative Agent receives such a notice, the Administrative Agent
shall give notice thereof to Lender. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by Lender; PROVIDED, HOWEVER, that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interests of Lender.
SECTION 10.06 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorney-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
Borrower, shall be deemed to constitute any representation or warranty by the
Administrative Agent to Lender. Lender represents to the Administrative Agent
that it has, independently and without reliance upon the Administrative Agent,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, Property,
financial and other condition and creditworthiness of Borrower and made its own
decision to make the Loan hereunder and enter into this Agreement. Lender also
represents that it will, independently and without reliance upon the
Administrative Agent, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Credit Facility Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, Property, condition
(financial
52
or otherwise), prospects or creditworthiness of Borrower. Except for notices,
reports and other documents expressly required to be furnished to Lender by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide Lender with any credit or other information
concerning the business, operations, Property, condition (financial or
otherwise), prospects or creditworthiness of Borrower which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
SECTION 10.07 REIMBURSEMENT AND INDEMNIFICATION. Lender agrees (i) to
reimburse the Administrative Agent for any expenses and fees incurred for the
benefit of Lender under the Credit Facility Documents, including, without
limitation, counsel fees and compensation of agents and employees paid for
services rendered on behalf of Lender, and any other expense incurred in
connection with the operations or enforcement thereof not reimbursed by Borrower
or one of its Subsidiaries, and (ii) to indemnify the Administrative Agent and
any of its directors, officers, employees or agents, upon demand (to the extent
not reimbursed by Borrower and without limiting the obligation of Borrower to do
so), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Note) be imposed on, incurred by or asserted
against it or them in any way relating to or arising out of this Agreement, any
of the other Credit Facility Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by it or them under or in connection with any of
the foregoing; PROVIDED, HOWEVER, that Lender shall not be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from the gross negligence or willful misconduct of the Person seeking
indemnification. The agreements in this SECTION 10.07 shall survive the payment
of the Note and all other amounts payable hereunder.
SECTION 10.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make Loan to, accept deposits from
and generally engage in any kind of business with Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Credit Facility Documents. With respect to the Loan made or renewed by it
and the Note issued to it, the Administrative Agent shall have the same rights
and powers under this Agreement and the other Credit Facility Documents as
Lender and may exercise the same as though it were not the Administrative Agent,
and the term "Lender" shall include the Administrative Agent in its individual
capacity.
SECTION 10.09 SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent and the Collateral Holder may resign as
Administrative Agent and Collateral Holder at any time by giving written notice
thereof to Lender. If the Administrative Agent or Collateral Holder shall resign
as Administrative Agent or Collateral Holder, as the case may be, under this
Agreement and the other Credit Facility Documents, then Lender shall appoint
from among Lender a successor agent or Collateral Holder for Lender, which
successor
53
agent shall be approved by Borrower, whereupon such successor agent or
Collateral Holder shall succeed to the rights, powers and duties of the
Administrative Agent or Collateral Holder, as the case may be, and the terms
"Administrative Agent" or "Collateral Holder" shall mean such successor agent or
Collateral Holder effective upon such appointment and approval, and the former
Administrative Agent's or Collateral Holder's rights, powers and duties as
Administrative Agent or Collateral Holder, as the case may be, shall be
terminated, without any other or further act or deed on the part of such former
Administrative Agent or Collateral Holder or any of the parties to this
Agreement or any holders of the Note. If no successor Administrative Agent shall
have been so appointed by Lenders and shall have accepted such appointment,
within thirty (30) days after the retiring Administrative Agent's giving of
notice of resignation, the retiring Administrative Agent may, on behalf of
Lender, appoint a successor Administrative Agent, with the consent of Borrower,
which will not be unreasonably withheld, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $250,000,000. After any
retiring Administrative Agent's or Collateral Holder's resignation, the
provisions of this ARTICLE X shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent or Collateral
Holder, as the case may be, under this Agreement and the other Credit Facility
Documents.
(b) PSC may at any time and from time to time assign to any of its
Affiliates all or any part of its rights or obligations as Administrative Agent
and/or Collateral Agent under this Agreement, the Note and the other Credit
Facility Documents. Any such assignment shall not be deemed a resignation for
purposes of SECTION 10.09(A).
SECTION 10.10 COLLATERAL HOLDER.
(a) Except for action expressly required of the Collateral Holder
hereunder and under the other Credit Facility Documents, the Collateral Holder
shall in all cases be fully justified in refusing to act hereunder and
thereunder unless it shall be further indemnified to its satisfaction by Lender
proportionately in accordance with the Obligations then due and payable to each
of them against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action.
(b) Except as expressly provided herein, the Collateral Holder shall
have no duty to take any affirmative steps with respect to the collection of
amounts payable in respect of the Collateral. The Collateral Holder shall incur
no liability as a result of any private sale of the Collateral.
(c) Lender hereby consent, and agree upon written request by the
Collateral Holder, to execute and deliver such instruments and other documents
as the Collateral Holder may deem desirable to confirm such consent, to the
release of
54
the Liens and security interests in the Collateral, including any release in
connection with any sale, transfer or other disposition of the Collateral or any
part thereof in accordance with the Credit Facility Documents.
(d) The Collateral Holder shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which the Collateral Holder accords its own Property, it being understood that
neither the Collateral Holder nor any Lender shall have responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether nor not
the Collateral Holder or any Lender has or is deemed to have knowledge of such
matters, or (b) taking any necessary steps to preserve rights against any
parties with respect to any Collateral.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 NO WAIVER; CUMULATIVE REMEDIES. No failure on the part
of the Administrative Agent or Lender to exercise and no delay in exercising,
and no course of dealing with respect to, any right, power or privilege under
this Agreement or any other Credit Facility Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement or any other Credit Facility Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights, remedies, powers and privileges provided herein are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
SECTION 11.02 NOTICES. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three (3) days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received PROVIDED, HOWEVER, that any notice, request or demand to
or upon the Administrative Agent or Lender pursuant to SECTIONS 2.02, 2.06 or
4.01(B) shall not be effective until received., addressed as follows the case
of Borrower and the Administrative Agent, and as set forth in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Note:
Borrower: Cali Realty, L.P.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
55
Cali Realty, L.P.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
With a copy to: Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
The Administrative Agent: Prudential Securities Credit Corporation
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
With copies to: Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxxxxx Xxxx, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
SECTION 11.03 EXPENSES. Borrower agrees (a) to pay or reimburse the
Administrative Agent for all its reasonable out-of-pocket third party costs and
expenses incurred in connection with the development, preparation and execution
of, any amendment, supplement, extension or modification to, or waiver of, this
Agreement, the Mortgage, the Note and the other Credit Facility Documents and
any other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated thereby, and any term loan or
credit facility made by Lenders or any Third Party to refinance the Loan,
including, without limitation, the reasonable fees and disbursements of counsel,
(b) to pay or reimburse Lender and the Administrative Agent for all its
reasonable costs and expenses including, without limitation, the reasonable fees
and disbursements of counsel to the Administrative Agent and to Lender and the
reasonable fees and disbursements
56
of technical and other consultants to the Administrative Agent, incurred in
connection with (i) the enforcement or preservation of any rights under this
Agreement, the Mortgage, the Note and the other Credit Facility Documents and
any such other documents, (ii) any Default and any enforcement or collection
proceedings resulting therefrom or in connection with the negotiation of any
restructuring or "work-out" (whether or not consummated) of the obligations of
Borrower hereunder and (iii) the enforcement of this SECTION 11.03, (c) to pay,
indemnify and hold Lender and the Administrative Agent harmless from any and all
recording and filing fees which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waver or consent under or in respect of this Agreement,
the Note and the other Credit Facility Documents and any such other documents
and (d) to pay all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement, the Mortgage, the Note or the other Credit Facility
Documents, or any related documents.
Borrower hereby agrees (i) to indemnify the Administrative Agent and
each Lender and each of their respective directors, officers, employees,
attorneys and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses incurred by any of them
(including, without limitation, any and all losses, liabilities, claims, damages
or expenses incurred by the Administrative Agent and Lender, whether or not the
Administrative Agent or Lender, as the case may be, is a party thereto) arising
out of or by reason of any investigation or litigation or other proceedings
(including any threatened investigation or litigation or other proceedings)
relating to the Loan hereunder or any actual or proposed use by Borrower of the
proceeds of any of the extensions of credit hereunder, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified), and (ii) not to assert any claim against the Administrative Agent
or Lender, any of their respective Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive (as opposed to
actual) damages arising out of or otherwise relating to any of the transactions
contemplated herein.
The agreements in this SECTION 11.03 shall survive repayment of the
Note and all other amounts payable hereunder and any termination or expiration
of any of the Credit Facility Documents.
SECTION 11.04 AMENDMENTS. Neither this Agreement, any Note or any
other Credit Facility Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
SECTION 11.04. Lender may, the Administrative Agent may, from time to time,
57
(i) enter into with Borrower written amendments, supplements or modifications
hereto and to the Note and the other Credit Facility Documents for the purpose
of adding any provisions to this Agreement, the Note or the other Credit
Facility Documents or changing in any manner the rights of Lender or of
Borrower, hereunder or thereunder, or (ii) waive, on such terms and conditions
as Lender or the Administrative Agent, as the case may be, may specify, in such
instrument, any of the requirements of this Agreement, the Note or the other
Credit Facility Documents or any Default or Event of Default and its
consequences; PROVIDED, HOWEVER, that no such waiver and no such amendment,
supplement or modification shall:
(a) reduce the amount or extend the scheduled date of maturity of the
Note or of any installment thereof, or reduce the stated rate of any interest or
fee payable hereunder or extend the scheduled date of any payment thereof, in
each case without the consent of Lender directly affected thereby;
(b) (i) amend, modify or waive (A) any provision of this SECTION 11.04
or (B) any provision of SECTION 2.06; or (ii) consent to the assignment or
transfer by Borrower of any of its rights and obligations under this Agreement
and the other Credit Facility Documents; in each case without the written
consent of Lender; or
(c) amend, modify or waive any provision of ARTICLE X without the
written consent of the then Administrative Agent.
Any such waiver and any such amendment, supplement or modification shall apply
equally to Lender and shall be binding upon Borrower, Lender, the Administrative
Agent and all future holders of the Note. In the case of any waiver, Borrower,
Lender and the Administrative Agent shall be restored to their former position
and rights hereunder and under the outstanding Note and any other Credit
Facility Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
Notwithstanding anything to the contrary contained herein, the
Administrative Agent may amend SCHEDULE II hereto to reflect the addition or
deletion of Lenders in accordance with the provisions hereof and, upon any such
amendment, the Administrative Agent shall deliver a revised SCHEDULE II to each
of Borrower and Lender.
SECTION 11.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of Borrower, Lender, the Administrative Agent, all
future holders of the Note and their respective successors and permitted
assigns.
SECTION 11.06 ASSIGNMENTS AND PARTICIPATIONS.
58
(a) Borrower may not assign or transfer any of its rights or
obligations under this Agreement, the Note or any other Credit Facility Document
without the prior written consent of Lender.
(b) Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more Lenders only to
bona fide financial institutions ("PARTICIPANTS") participating interests in the
Loan owing to such Lender, the Note held by such Lender; PROVIDED, HOWEVER, that
prior to any such sale by Lender to any Participant, Lender shall provide
written notice to Borrower of Lender's intention to sell a participating
interest to such Participant and the name of such Participant. In the event of
any such sale by a Lender of a participating interest to a Participant, (i)
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, (ii) Lender shall remain solely responsible for the
performance thereof, (iii) Lender shall remain the holder of Note for all
purposes under this Agreement and the other Credit Facility Documents, (iv)
Borrower and the Administrative Agent shall continue to deal solely and directly
with Lender in connection with such Lender's rights and obligations under this
Agreement and the other Credit Facility Documents, and (v) such Participant
shall have no right to enforce the obligations of Borrower or any of its
Subsidiaries relating to the Loan hereunder (other than under SECTION 5.01) or
to approve (or refrain from approving) any amendment, modification or waiver of
any provision of this Agreement (other than any amendment, modification or
waiver decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loan, extending any scheduled
installment of the Loan or any date scheduled for payment of interest on the
Loan or any fees, or relating to the release of all or substantially all the
Collateral; PROVIDED FURTHER, HOWEVER, in the case of any of the foregoing, that
the interests held by such Participant are directly affected by such amendment,
modification or waiver). Borrower agrees that if amounts outstanding under this
Agreement and the Note are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and the Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement or the Note; PROVIDED FURTHER, HOWEVER,
that, in purchasing such participating interest, such Participant shall be
deemed to have agreed to share with Lender the proceeds thereof as provided in
SECTION 11.07 as fully as if it were a Lender hereunder. Borrower also agrees
that each Participant shall be entitled to the benefits of SECTIONS 5.01, 5.05,
5.06 and 11.03(B)(I) with respect to its participation in the Loan outstanding
from time to time as if it was a Lender; PROVIDED FURTHER, HOWEVER, that (A)
such Participant shall have complied with the requirements of said Sections and
of SECTION 5.07 (as if such Participant were, for purposes of said SECTION 5.07,
a Lender hereunder), and (B) no Participant shall be entitled to receive any
greater amount pursuant to any such Section than the transferor Lender would
have been entitled to receive in respect of
59
the amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred. Each Participant will agree to keep
information confidential to the same extent as the transferor Lender was so
required.
(c) Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
of its Affiliates or to any Lender or any Affiliate thereof or to any bona fide
financial institution (an "ASSIGNEE") all or any part of its rights and
obligations under this Agreement the Note and the other Credit Facility
Documents pursuant to an Assignment and Acceptance, substantially in the form of
EXHIBIT D, executed by such Assignee, such assigning Lender and, in the case of
an Assignee that is not then a Lender or an Affiliate thereof, by the
Administrative Agent and delivered to the Administrative Agent for its
acceptance and recording in the Register; PROVIDED, HOWEVER, that, except (i) in
the case of an assignment to another Lender, or (ii) with the consent of
Borrower, each such assignment shall be in an amount equal to not less than
$5,000,000; PROVIDED, FURTHER, that prior to any such assignment by Lender to
any Assignee, Lender shall provide written notice to Borrower of Lender's
intention to make an assignment to such Assignee and the name of such Assignee.
Upon such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (A) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Commitment as set forth therein, and (B) the assigning Lender hereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such assigning Lender shall cease to be
party hereto). Notwithstanding anything to the contrary contained herein, an
Assignee shall be entitled to the benefits of SECTIONS 5.01 and 5.05 only if it
shall have complied with the requirements of said Sections (and also complied
with the requirements of SECTION 5.07.
(d) The Administrative Agent shall maintain at its address referred
to in SECTION 11 .02 a copy of each Assignment and Acceptance delivered to it
and a register (the "REGISTER") for the recordation of the names and addresses
of Lender and the commitment of, and principal amount of the Loan owing to, each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and Borrower, the Administrative Agent and Lender
may treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, if required under SECTION 11 .06(C), by
60
Borrower and/or the Administrative Agent) together with payment by the assigning
Lender of the Assignee to the Administrative Agent of a registration and
processing fee of $3,500, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance, and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to Lender and Borrower. On or
prior to such effective date, Borrower, at its own expense, shall execute and
deliver to the Administrative Agent (in exchange for the Note of the assigning
Lender) a new Note to the order of such Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new Note to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note shall be dated the Closing Date and shall otherwise be
in the form of the Note replaced thereby.
(f) Borrower authorizes each Lender to disclose to any Participant or
Assignee (each, a "Transferee") and any prospective Transferee any and all
financial information in such Lender's possession concerning the Operating
Partnership and its Affiliates which has been delivered to such Lender by or on
behalf of Borrower pursuant to this Agreement or which has been delivered to
such Lender by or on behalf of Borrower in connection with such Lender's credit
evaluation of Borrower and its Affiliates prior to becoming a party to this
Agreement; PROVIDED, HOWEVER, that no Lender shall be authorized to disclose
such information to any Transferee or prospective Transferee unless such
Transferee or prospective Transferee has agreed in writing to maintain the
confidentiality of all confidential information provided to it (subject to
customary exceptions, such as disclosure to officers, directors, professional
advisors, regulators and similar Persons, disclosure pursuant to law or legal
process, disclosure following the public dissemination of such information by
another Person and disclosure of information provided to such Transferee or
prospective Transferee by a third party); and PROVIDED FURTHER, HOWEVER, that,
notwithstanding anything to the contrary contained in this Agreement, neither
the Administrative Agent nor any Lender shall be liable for any violation of the
terms of the foregoing proviso by any other Lender or the Administrative Agent,
as the case may be.
(g) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
SECTION 11.07 ADJUSTMENTS. If any Lender (a "BENEFITTED LENDER")
shall at any time receive any payment of all or part of its Loan, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, through the exercise of a right of bank's lien, setoff or
counterclaim against Borrower, pursuant to events or proceedings of the nature
referred to in ARTICLE IX(H), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loan, or interest thereon, such Benefited Lender shall
purchase at par for cash from the other
61
Lenders a participating interest in such portion of each other Lender's Loan, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefited Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of Lender: PROVIDED, HOWEVER, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
SECTION 11.08 SURVIVAL. The obligations of Borrower under Sections
5.01, 5.04, 5.05 and 11.03 shall survive the repayment of the Loan. In addition,
each representation and warranty made, or deemed to be made by a notice of the
Loan hereunder, in the other Credit Facility Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the making of such representation and warranty, and Lender shall
not be deemed to have waived, by reason of making the Loan, any Default which
may arise by reason of such representation or warranty proving to have been
false or misleading, notwithstanding that Lender may have had notice or
knowledge or reason to believe that such representation or warranty was false or
misleading at the time such Loan was made.
SECTION 11.09 CAPTIONS. The table of contents and captions and
section headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of
this Agreement.
SECTION 11.10 COUNTERPARTS. This Agreement maybe executed by one or
more of the parties to this Agreement with counterpart signature pages or in any
number of separate counterparts, all of which taken together shall constitute
one and the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with Borrower and the Administrative Agent.
SECTION 11.11 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.12. INTEGRATION. This Agreement and the other Credit
Facility Documents represent the agreement of Borrower, the Administrative Agent
and Lender with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Credit Facility Documents.
62
SECTION 11.13 GOVERNING LAW. THIS AGREEMENT AND THE NOTE AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
SECTION 11.14 SUBMISSION TO JURISDICTION. Borrower hereby irrevocably
and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Credit Facility Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the nonexclusive general jurisdiction of the Courts of the
State of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof, notwithstanding the
foregoing the Mortgage shall be governed and construed in accordance with the
laws of the State of New Jersey;
(b)consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court or forum and agrees not to plead
or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to Borrower at its
address set forth in SECTION 1L.02 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this SECTION 11.14 any special, exemplary, punitive or consequential damages.
SECTION 11.15 ACKNOWLEDGMENTS. Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement, the Note and the other Credit Facility Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to Borrower arising out of or in connection with
63
this Agreement or any of the other Credit Facility Documents, and the
relationship between Administrative Agent and Lenders, on the one hand, and
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Facility Documents or otherwise exists by virtue of the transactions
contemplated hereby among Lender or among Borrower and Lender.
SECTION 11.16 WAIVER OF JURY TRIAL. BORROWER, THE ADMINISTRATIVE
AGENT AND LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
NOTE, THE CREDIT FACILITY DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREIN,
AND FOR ANY COUNTERCLAIM THEREIN.
64
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
CALI REALTY, L.P.
By: Cali Realty Corporation, its sole general partner
By: ___________________________________
Name: _________________________________
Title: __________________________________
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
C.W. ASSOCIATES
By: Cali Sub II, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
CHESTNUT RIDGE ASSOCIATES
By: Cali Sub III, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
000 XXXXXXXX XXXXXXXX ASSOCIATES
By: Cali Sub I, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
GROVE STREET ASSOCIATES OF JERSEY CITY LIMITED
PARTNERSHIP
By: Cali Sub IV, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
OFFICE ASSOCIATES, LTD.
By: Cali Sub III, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
ROSELAND II LIMITED PARTNERSHIP
By: Cali Sub III, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
SIX COMMERCE DRIVE ASSOCIATES
By: Cali Sub I, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
300 XXXX REALTY ASSOCIATES, L.P.
By: Cali Sub IX, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
00 XXXXXXXX XXXXX ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
ADMINISTRATIVE AGENT:
PRUDENTIAL SECURITIES CREDIT CORPORATION
By: ___________________________________
Name: _________________________________
Title: __________________________________
LENDER:
PRUDENTIAL SECURITIES CREDIT CORPORATION
By: _______________________________________
Name: _____________________________________
Title: ______________________________________
EXHIBIT A
ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT (this "Agreement") dated as of December __,
1997, is made by XXXX-XXXX REALTY, L.P., a Delaware limited partnership
("Xxxx-Xxxx"), pursuant to the Credit Agreement dated as of December ___ 1997
(the "Credit Agreement"), among Cali Realty, L.P., a Delaware limited
partnership (the "Operating Partnership"), the Parties listed on Schedule I
thereto (the "Property Partnership" and collectively with the Operating
Partnership, the "Borrower") the several lenders from time to time parties
thereto ("Lender") and Prudential Securities Credit Corporation ("PSC"), as
Administrative Agent for Lender. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the meanings so defined.
WITNESSETH:
WHEREAS, Cali Realty Corporation ("Cali"), a Maryland corporation, the
sole general partner of the Operating Partnership, has combined with The Xxxx
Company, a New Jersey based company ("Xxxx") and Patriot American Office Group,
a Texas based company ("Patriot" and together with Xxxx, the "Xxxx Combination")
pursuant to a contribution and exchange agreement dated as of September 18, 1997
(the "Merger Agreement") as amended, among Cali, the Operating Partnership and
the Xxxx Combination, whereby Cali has become Xxxx-Xxxx Corporation (the
"Company") and the Operating Partnership has become Xxxx-Xxxx Realty, L.P. (the
"Merger"); and
WHEREAS, pursuant to the Credit Agreement Lender has made a
commitments to make a Loan to Borrower, subject to the terms and conditions set
forth therein;
NOW THEREFORE, in consideration of the foregoing premises, and in
order to induce Lender to make the Loan pursuant to the Credit Agreement, the
parties hereto agree as follows:
SECTION 1. ASSUMPTION OF OBLIGATIONS. (a) Xxxx-Xxxx hereby
assumes, as its direct and primary obligation, all Obligations of Borrower under
the Credit Agreement on the Merger Consummation Date. Xxxx-Xxxx also assumes,
from and after the date hereof, the punctual performance and observance of all
of the covenants and conditions of the Credit Agreement to be performed or
observed by Borrower thereunder (including, without limitation, the payment of
all fees), and to be bound in all respects by the terms of the Credit Agreement,
including without limitation, Section 11.06 thereto, as of Xxxx-Xxxx were a
signatory party thereto.
(b) Xxxx-Xxxx hereby represents and warrants that all
representations and warranties set forth in the Credit Agreement applicable to
Xxxx-Xxxx will be true and correct and complete upon consummation of the Merger.
Xxxx-Xxxx further covenants that, upon consummation of the Merger, it will be in
compliance with all agreements, affirmative covenants and negative covenants
applicable to Xxxx-Xxxx contained in the Credit Agreement.
SECTION 2. MISCELLANEOUS. (a) Except as herein set forth, the Credit
Agreement is in all respects ratified and confirmed and shall remain in full
force and effect.
(b) The address to which notices to Xxxx-Xxxx under the Credit
Agreement should be directed is:
Xxxx-Xxxx Realty, L.P.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
Xxxx-Xxxx Realty, L.P.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
With a copy to:
Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
(c) THE CREDIT AGREEMENT AND THIS ASSUMPTION AGREEMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
(d) This Agreement shall become effective on the Merger
Consummation Date.
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IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed as of the day and year first above written.
XXXX-XXXX REALTY, L.P.
By: Xxxx-Xxxx Realty Corporation, its sole
General Partner
By:
-------------------------------
Name:
Title:
Receipt of the foregoing Assumption Agreement is hereby acknowledged
on and as of the date set forth above.
PRUDENTIAL SECURITIES CREDIT
CORPORATION
By:
-------------------------------
Name:
Title:
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