UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____________ to ____________
Commission file number 1-13274
Cali Realty Corporation
(Exact name of registrant as specified in its charter)
Maryland 22-3305147
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
11 Commerce Drive, Cranford, New Jersey 07016-3501
(Address of principal executive office)
(Zip Code)
(908) 272-8000
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve (12) months (or such shorter period that the
Registrant was required to file such report) YES [ X ] NO [ ]
and (2) has been subject to such filing requirements for the past ninety (90)
days YES [ X ] NO [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
There were 36,652,172 shares of $.01 par value common stock outstanding at July
31, 1997.
<PAGE>
CALI REALTY CORPORATION
Form 10-Q
INDEX
Part I - Financial Information
Item 1. Financial Statements:
Consolidated Balance Sheets as of June 30, 1997
and December 31, 1996
Consolidated Statements of Operations for the three and
six month periods ended June 30, 1997 and 1996
Consolidated Statement of Stockholders' Equity for the
six months ended June 30, 1997
Consolidated Statements of Cash Flows for the six months
ended June 30, 1997 and 1996
Notes to Consolidated Financial Statements
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Part II - Other Information and Signatures
Item 6. Exhibits
Signatures
<PAGE>
CALI REALTY CORPORATION
Part I - Financial Information
Item 1: Financial Statements
The accompanying unaudited consolidated balance sheets, statements of
operations, of stockholders' equity, and of cash flows, and related
notes, have been prepared in accordance with generally accepted
accounting principles ("GAAP") for interim financial information and
in conjunction with the rules and regulations of the Securities and
Exchange Commission ("SEC"). Accordingly, they do not include all of
the disclosures required by GAAP for complete financial statements.
The financial statements reflect all adjustments consisting only of
normal, recurring adjustments, which are, in the opinion of
management, necessary for a fair presentation of the aforementioned
financial statements for the interim periods.
The aforementioned financial statements should be read in conjunction
with the notes to the aforementioned financial statements and
Management's Discussion and Analysis of Financial Condition and
Results of Operations and the financial statements and notes thereto
included in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996.
The results of operations for the three and six month periods ended
June 30, 1997 are not necessarily indicative of the results to be
expected for the entire fiscal year or any other period.
<PAGE>
<TABLE>
<CAPTION>
CALI REALTY CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (in thousands, except per share amounts)
- -------------------------------------------------------------------------------------------------------------------
June 30, December 31,
1997 1996
---- ----
<S> <C> <C>
ASSETS
- ------
Rental property
Land $ 138,051 $ 98,127
Buildings and improvements 1,212,631 718,466
Tenant improvements 38,679 35,626
Furniture, fixtures and equipment 1,867 1,133
- -------------------------------------------------------------------------------------------------------------------
1,391,228 853,352
Less - accumulated depreciation and amortization (83,863) (68,610)
- -------------------------------------------------------------------------------------------------------------------
Total rental property 1,307,365 784,742
Cash and cash equivalents (includes $201,269 in Overnight Investments
at December 31, 1996) 6,090 204,807
Unbilled rents receivable 23,648 19,705
Deferred charges and other assets, net of accumulated amortization 13,224 11,840
Restricted cash 8,218 3,160
Accounts receivable, net of allowance for doubtful accounts of $574 and $189 3,547 2,074
Mortgage note receivable 11,600 --
- -------------------------------------------------------------------------------------------------------------------
Total assets $1,373,692 $1,026,328
===================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CALI REALTY CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (in thousands, except per share amounts) (continued)
- -------------------------------------------------------------------------------------------------------------------
June 30, December 31,
1997 1996
---- ----
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Mortgages and loans payable $ 553,961 $ 268,010
Dividends and distributions payable 18,334 17,554
Accounts payable and accrued expenses 10,582 5,068
Rents received in advance and security deposits 16,280 6,025
Accrued interest payable 1,916 1,328
- -------------------------------------------------------------------------------------------------------------------
Total liabilities 601,073 297,985
- -------------------------------------------------------------------------------------------------------------------
Minority interest of unitholders in Operating Partnership 70,911 26,964
- -------------------------------------------------------------------------------------------------------------------
Commitments and contingencies
Stockholders' equity:
Preferred stock, 5,000,000 shares authorized, none issued
Common stock, $.01 par value, 190,000,000 shares authorized,
36,651,872 and 36,318,937 shares outstanding 366 363
Additional paid-in capital 723,009 714,052
Distributions in excess of net earnings (11,604) (13,036)
Unamortized stock compensation (10,063) --
- -------------------------------------------------------------------------------------------------------------------
Total stockholders' equity 701,708 701,379
- -------------------------------------------------------------------------------------------------------------------
Total liabilities and stockholders' equity $1,373,692 $1,026,328
===================================================================================================================
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE>
<TABLE>
<CAPTION>
CALI REALTY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (in thousands, except per share amounts)
- -------------------------------------------------------------------------------------------------------------------
Three Months Ended June 30, Six Months Ended June 30,
--------------------------- -------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
REVENUES
- --------
Base rents $ 50,389 $ 17,264 $ 93,180 $ 33,276
Escalations and recoveries from tenants 7,667 3,151 14,279 6,232
Parking and other 2,054 519 3,598 923
Interest income 432 79 1,640 153
- -------------------------------------------------------------------------------------------------------------------
Total revenues 60,542 21,013 112,697 40,584
- -------------------------------------------------------------------------------------------------------------------
EXPENSES
- --------
Real estate taxes 6,496 2,194 11,929 4,153
Utilities 4,215 1,873 7,940 3,755
Operating services 7,357 2,512 13,773 5,315
General and administrative 3,754 1,128 6,927 2,064
Depreciation and amortization 9,080 3,614 16,844 6,908
Interest expense 9,603 2,999 17,152 5,568
- -------------------------------------------------------------------------------------------------------------------
Total expenses 40,505 14,320 74,565 27,763
- -------------------------------------------------------------------------------------------------------------------
Income before gain on sale of rental property,
minority interest and extraordinary item 20,037 6,693 38,132 12,821
Gain on sale of rental property -- -- -- 5,658
- -------------------------------------------------------------------------------------------------------------------
Income before minority interest
and extraordinary item 20,037 6,693 38,132 18,479
Minority interest 2,012 1,009 3,648 2,821
- -------------------------------------------------------------------------------------------------------------------
Income before extraordinary item 18,025 5,684 34,484 15,658
Extraordinary item-loss on early retirement of debt
(net of minority interest's share of $86 in 1996) -- -- -- 475
- -------------------------------------------------------------------------------------------------------------------
Net income $ 18,025 $ 5,684 $ 34,484 $ 15,183
===================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CALI REALTY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (in thousands, except per share amounts) (continued)
- -------------------------------------------------------------------------------------------------------------------
Three Months Ended June 30, Six Months Ended June 30,
--------------------------- -------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income per common share:
- ----------------------------
Income before extraordinary item-
loss on early retirement of debt $ 0.49 $ 0.37 $ 0.95 $ 1.03
Extraordinary item-loss on early
retirement of debt -- -- -- ( 0.03)
- -------------------------------------------------------------------------------------------------------------------
Net income $ 0.49 $ 0.37 $ 0.95 $ 1.00
===================================================================================================================
Dividends declared per common share $ 0.45 $ 0.43 $ 0.90 $ 0.85
- -------------------------------------------------------------------------------------------------------------------
Weighted average common shares outstanding 36,489 15,203 36,475 15,175
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE>
<TABLE>
<CAPTION>
CALI REALTY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY (in thousands)
- ------------------------------------------------------------------------------------------------------------------------------------
Retained
Earnings
Additional (Distributions Unamortized Total
Common Stock Paid-in in Excess of Stock Stockholders'
Shares Par Value Capital Net Earnings) Compensation Equity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE AT JANUARY 1, 1997 ..................... 36,319 $ 363 $ 714,052 $ (13,036) -- $ 701,379
Net income ..................................... -- -- -- 34,484 -- 34,484
Dividends ...................................... -- -- -- (33,052) -- (33,052)
Issuance of Stock Award Rights
and Stock Purchase Rights ................... 351 4 11,116 -- (11,120) --
Amortization of Stock Compensation ............. -- -- -- -- 1,057 1,057
Repurchase of Common Stock ..................... (152) (2) (4,678) -- -- (4,680)
Conversion of Units to
shares of Common Stock ...................... 1 -- 17 -- -- 17
Proceeds from exercise of
stock options ................................ 133 1 2,502 -- -- 2,503
- ------------------------------------------------------------------------------------------------------------------------------------
BALANCE AT JUNE 30, 1997 ....................... 36,652 $ 366 $ 723,009 $ (11,604) $ (10,063) $ 701,708
====================================================================================================================================
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE>
<TABLE>
<CAPTION>
CALI REALTY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands)
- ---------------------------------------------------------------------------------
Six Months Ended June 30,
-------------------------
1997 1996
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 34,484 $ 15,183
Adjustments to reconcile net income to net cash
flows provided by operating activities:
Depreciation and amortization 16,844 6,908
Minority interest 3,648 2,821
Amortization of Stock Compensation 1,057 --
Gain on sale of rental property -- (5,658)
Extraordinary item-loss on early retirement of debt -- 475
Changes in operating assets and liabilities:
Increase in unbilled rents receivable (3,944) (204)
Increase in deferred charges and other assets, net (2,976) (2,180)
(Increase) decrease in accounts receivable, net (1,472) 63
Increase in accounts payable and
accrued expenses 5,514 799
Increase in rents received in advance and
security deposits 5,498 1,100
Increase (decrease) in accrued interest payable 588 (144)
- ---------------------------------------------------------------------------------
Net cash provided by operating activities $ 59,241 $ 19,163
=================================================================================
CASH FLOWS FROM INVESTING ACTIVITIES
Additions to rental property $(308,531) $ (46,321)
Issuance of mortgage note receivable (11,600) --
Proceeds from sale of rental property -- 10,324
Increase in restricted cash (301) (556)
- ---------------------------------------------------------------------------------
Net cash used in investing activities $(320,432) $ (36,553)
=================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CALI REALTY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands) (continued)
- ---------------------------------------------------------------------------------
Six Months Ended June 30,
-------------------------
1997 1996
--------- ---------
<S> <C> <C>
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from mortgages and loans payable $ 132,876 $ 109,500
Repayments of mortgages and loans payable (32,482) (75,817)
Debt prepayment premiums and other costs -- (312)
Proceeds from exercise of stock options 2,503 173
Repurchase of Common Stock (4,680) --
Payment of dividends and distributions (35,743) (15,214)
- ---------------------------------------------------------------------------------
Net cash provided by financing activities $ 62,474 $ 18,330
=================================================================================
Net (decrease) increase in cash and cash equivalents $(198,717) $ 940
Cash and cash equivalents, beginning of period 204,807 967
- ---------------------------------------------------------------------------------
Cash and cash equivalents, end of period $ 6,090 $ 1,907
=================================================================================
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE>
CALI REALTY CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollars in thousands, except per share amounts)
- --------------------------------------------------------------------------------
1. ORGANIZATION, ACQUISITIONS AND BASIS OF PRESENTATION
Organization
Cali Realty Corporation and subsidiaries (the "Company"), a Maryland
corporation, is a fully-integrated, self- administered, self-managed real estate
investment trust ("REIT") providing leasing, management, acquisition,
development, construction and tenant-related services for its properties. As of
June 30, 1997, the Company owned and operated 127 properties (the "Properties")
aggregating 11.8 million square feet, consisting of 115 office and office/flex
buildings totaling approximately 11.4 million square feet, six
industrial/warehouse buildings totaling approximately 400,000 square feet, two
multi-family residential complexes consisting of 453 units, two stand-alone
retail properties and two land leases. The Properties are located in New Jersey,
New York, Pennsylvania, and Connecticut.
The Company was incorporated on May 24, 1994 and commenced operations on August
31, 1994. On August 31, 1994, the Company completed an initial public offering
("IPO") and effected a business combination with the Cali Group (not a legal
entity). The Company raised its initial capital through the IPO issuing
10,500,000 shares of common stock, and used the proceeds to acquire a majority
interest in Cali Realty, L.P. (the "Operating Partnership") and related
entities, which are the successors to the operations of the Cali Group.
Acquisitions
From 1994 through 1996, following the Company's IPO, the Company acquired 44
office and office/flex properties totaling 4.9 million square feet for
approximately $610,000. These properties are all located in New Jersey, New
York and Pennsylvania.
On January 28, 1997, the Company acquired 1345 Campus Parkway, a 76,300 square
foot office/flex property, located in Wall Township, Monmouth County, New
Jersey, for approximately $6,800 in cash, made available from the Company's cash
reserves. The property is located in the same office park in which the Company
previously acquired two office properties and four office/flex properties in
November 1995.
On January 31, 1997, the Company acquired 65 properties ("RM Properties") of
Robert Martin Company, LLC and affiliates ("RM") for a total cost of
approximately $450,000. The cost of the transaction (the "RM Transaction") was
financed through the assumption of $185,283 of mortgage indebtedness ("TIAA
Mortgage"), approximately $220,000 in cash, substantially all of which was
obtained from the Company's cash reserves, and the issuance of 1,401,225 Units
in the Operating Partnership.
The RM Properties consist primarily of 54 office and office/flex properties
aggregating approximately 3.7 million square feet and six industrial/warehouse
properties aggregating approximately 400,000 square feet. The RM Properties are
located primarily in established business parks in Westchester County, New York
and Fairfield County, Connecticut. The Company has agreed not to sell certain of
the RM Properties for a period of seven years without the consent of the RM
principals, except for sales made under certain circumstances and/or conditions.
In connection with the RM Transaction, the Company was granted a three-year
option to acquire a 115,000 square foot office property and an 84,000 square
foot office/flex property (the "Option Properties") for an aggregate minimum
price of $19,000 and has granted RM the right to put such properties to the
Company between a range of an aggregate purchase price of $11,600 to $21,300,
under certain conditions. The purchase prices, under the agreement, are subject
to adjustment based on different formulas and are payable in cash or Units.
<PAGE>
In connection with the RM Transaction, the Company provided an $11,600 mortgage
loan ("Mortgage Note Receivable") secured by the Option Properties (see Note 5).
As part of the RM Transaction, Brad W. Berger, President and Chief Executive
Officer of RM, and Timothy M. Jones, Chief Operating Officer of RM, joined the
Company as Executive Vice Presidents under three-year employment agreements. The
agreements provide for, among other things, both Berger and Jones to be issued
warrants to purchase 170,000 shares of the Company's common stock at a price of
$33 per share, which vest equally over a three-year period and expire on January
31, 2007.
On May 8, 1997, the Company acquired four buildings in the Westlakes Office
Park, a suburban office complex located in Berwyn, Chester County, Pennsylvania,
totaling approximately 444,000 square feet. The properties were acquired for
approximately $74,700, which was made available primarily from drawing on one of
the Company's credit facilities.
On July 21, 1997, the Company acquired two office buildings in the Moorestown
Corporate Center, a suburban office complex located in Moorestown, Burlington
County, New Jersey. The properties, each consisting of 75,000 square feet, were
acquired for approximately $10,200, which was made available from drawing on one
of the Company's credit facilities.
On August 1, 1997, the Company acquired 1000 Bridgeport Avenue (a/k/a Shelton
Place), a 133,000 square-foot office building located in Shelton, Fairfield
County, Connecticut. The property was acquired for approximately $15,500, which
was made available from drawing on one of the Company's credit facilities.
As of August 1, 1997, the Company's portfolio consists of 130 properties
aggregating approximately 12 million square feet, consisting primarily of
office, office/flex and industrial/warehouse buildings, located in New Jersey,
New York, Pennsylvania and Connecticut.
Basis of Presentation
The accompanying consolidated financial statements include all accounts of the
Company and its majority-owned subsidiaries, which consist principally of the
Operating Partnership. All significant intercompany accounts and transactions
have been eliminated.
The preparation of financial statements in conformity with GAAP requires
management to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates.
<PAGE>
2. SIGNIFICANT ACCOUNTING POLICIES
Rental
Property Rental properties are stated at cost less accumulated
depreciation. Costs include interest, property taxes,
insurance and other project costs incurred during the
period of construction. Ordinary repairs and maintenance
are expensed as incurred; major replacements and
betterments are capitalized and depreciated over their
estimated useful lives. Fully-depreciated assets are
removed from the accounts. Depreciation is computed on a
straight-line basis over the estimated useful lives of
the assets as follows:
Buildings and improvements 39 to 40 years
--------------------------------------------------------
Tenant improvements The shorter of the term of the
related lease or useful life
--------------------------------------------------------
Furniture, fixtures and equipment 5 to 10 years
--------------------------------------------------------
On a periodic basis, management assesses whether there
are any indicators that the value of the real estate
properties may be impaired. A property's value is
impaired only if management's estimate of the aggregate
future cash flows (undiscounted and without interest
charges) to be generated by the property are less than
the carrying value of the property. Management does not
believe that the value of any of its real estate
properties are impaired.
Cash and Cash
Equivalents All highly liquid investments with a maturity of three
months or less when purchased are considered to be cash
equivalents. At December 31, 1996, cash and cash
equivalents included investments in overnight reverse
repurchase agreements ("Overnight Investments") totaling
$201,269. Investments in Overnight Investments are
subject to the risks that the counter-party will default
and the collateral will decline in market value. The
Overnight Investments held by the Company at December
31, 1996 matured on January 2, 1997. The entire balance,
including interest income earned, was realized by the
Company and ultimately used in the funding of the RM
Transaction on January 31, 1997.
Deferred
Financing Costs Costs incurred in obtaining financing are capitalized
and amortized on a straight-line basis, which
approximates the effective interest method, over the
term of the related indebtedness. Amortization of such
costs were $835 and $267 for the three month periods
ended June 30, 1997 and 1996, respectively, and $1,106
and $527 for the six month periods ending June 30, 1997
and 1996, respectively.
<PAGE>
Deferred
Leasing Costs Costs incurred in connection with leases are capitalized
and amortized on a straight-line basis over the terms of
the related leases. Unamortized deferred leasing costs
are charged to amortization expense upon early
termination of the lease.
Revenue
Recognition The Company recognizes base rental revenue on a
straight-line basis over the terms of the respective
leases. Unbilled rents receivable represents the amount
by which straight-line rental revenue exceeds rents
currently billed in accordance with the lease
agreements. Parking revenue includes income from parking
spaces leased to tenants.
Rental income on residential property under operating
leases having terms generally of one year or less is
recognized when earned.
Income and
Other Taxes The Company has elected to be taxed as a REIT under
Sections 856 through 860 of the Internal Revenue Code
(the "Code"). As a REIT, the Company will not be subject
to federal income tax to the extent it distributes at
least 95 percent of its REIT taxable income to its
shareholders. REITs are subject to a number of
organizational and operational requirements. If the
Company fails to qualify as a REIT in any taxable year,
the Company will be subject to federal income tax
(including any applicable alternative minimum tax) on
its taxable income at regular corporate tax rates. The
Company may be subject to certain state and local taxes.
Earnings
Per Share Net income per common share is computed in accordance
with APB Opinion No.15, "Earnings per Share," and uses
the weighted average common shares outstanding during
the period. The weighted average shares outstanding
during the three month periods ended June 30, 1997 and
1996 were 36,488,523 and 15,202,912, respectively, and
for the six month periods ended June 30, 1997 and 1996
were 36,474,942 and 15,174,500, respectively. In
February 1997, the Financial Accounting Standards Board
("FASB") issued statement No. 128, "Earnings per Share,"
("FASB No. 128") which will be effective for periods
ending after December 15, 1997. Earlier application is
not permitted. FASB No. 128 requires a dual presentation
of basic and diluted earnings per share ("EPS") on the
face of the income statement for all companies with
complex capital structures even where the effect of such
dilution is not material (See Note 12).
<PAGE>
Dividends and
Distributions
Payable The dividends and distributions payable at June 30, 1997
represents dividends payable to shareholders of record
on July 3, 1997 (36,651,872 shares) and distributions
payable to minority interest unitholders (4,090,170
Units) on that same date. The second quarter dividends
and distributions of $0.45 per share and per Unit were
approved by the Board of Directors on June 21, 1997 and
were paid on July 18, 1997.
Extraordinary
Item The extraordinary item represents the net effect
resulting from the early settlement of certain mortgage
obligations, net of write-off's of related deferred
financing costs, prepayment penalties, and other related
items.
Underwriting
Commissions
and Offering
Costs Underwriting commissions and offering costs incurred in
connection with the Company's stock offerings are
reflected as a reduction of additional paid-in-capital.
Stock Options The Company accounts for stock-based compensation using
the intrinsic value method prescribed in Accounting
Principles Board Opinion (APB) No. 25, "Accounting for
Stock Issued to Employees," and related Interpretations.
Under APB No. 25, compensation cost is measured as the
excess, if any, of the quoted market price of the
Company's stock at the date of grant over the exercise
price of the option granted. Compensation cost for stock
options, if any, is recognized ratably over the vesting
period. The Company's policy is to grant options with an
exercise price equal to the quoted closing market price
of the Company's stock on the business day preceding the
grant date. Accordingly, no compensation cost has been
recognized for the Company's stock option plans. See
Note 11 for discussion of stock compensation.
<PAGE>
3. DEFERRED CHARGES AND OTHER ASSETS
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
---------- ---------
<S> <C> <C>
Deferred leasing costs $ 15,335 $ 14,031
Deferred financing costs 5,390 5,390
- -------------------------------------------------------------------------------------------------------------------
20,725 19,421
Accumulated amortization (10,478) (8,994)
- -------------------------------------------------------------------------------------------------------------------
Deferred charges, net 10,247 10,427
Prepaid expenses and other assets 2,977 1,413
- -------------------------------------------------------------------------------------------------------------------
Total deferred charges and other assets, net $ 13,224 $ 11,840
===================================================================================================================
</TABLE>
4. RESTRICTED CASH
Restricted cash includes security deposits for all of the Company's residential
properties and certain commercial properties, and escrow and reserve funds for
debt service, real estate taxes, property insurance, capital improvements,
tenant improvements, and leasing costs established pursuant to certain mortgage
financing arrangements, and is comprised of the following:
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
---- ----
<S> <C> <C>
Escrow and other reserve funds $ 3,161 $ 2,814
Security deposits 5,057 346
- -------------------------------------------------------------------------------------------------------------------
Total restricted cash $ 8,218 $ 3,160
===================================================================================================================
</TABLE>
5. MORTGAGE NOTE RECEIVABLE
In connection with the RM Transaction on January 31, 1997, the Company provided
an $11,600 non-recourse mortgage loan to entities controlled by the RM
principals, bearing interest at an annual rate of 450 basis points over the
one-month London Inter-Bank Offered Rate (LIBOR). The Mortgage Note Receivable,
which is secured by the Option Properties and guaranteed by certain of the RM
principals, matures on February 1, 2000. In addition, the Company received a
three percent origination fee with the Mortgage Note Receivable.
<PAGE>
6. MORTGAGES AND LOANS PAYABLE
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
---- ----
<S> <C> <C>
TIAA Mortgage $ 185,283 --
Harborside Mortgages 150,000 $ 150,000
Mortgage Financing 64,508 64,508
Fair Lawn Mortgage 18,244 18,445
First Prudential Facility 8,600 6,000
Bank Facility 51,800 23,805
Second Prudential Facility 70,000 --
Contingent Obligation 5,526 5,252
- -------------------------------------------------------------------------------------------------------------------
Total mortgages and loans payable $ 553,961 $ 268,010
===================================================================================================================
</TABLE>
TIAA Mortgage
In connection with the RM Transaction, on January 31, 1997, the Company assumed
a $185,283 non-recourse mortgage loan with Teachers Insurance and Annuity
Association of America ("TIAA"), with interest only payable monthly at a fixed
annual rate of 7.18 percent (the "TIAA Mortgage"). The TIAA Mortgage is secured
and cross-collateralized by 43 of the RM Properties and matures on December 31,
2003. The Company, at its option, may convert the TIAA Mortgage to unsecured
debt upon achievement by the Company of an investment credit rating of Baa3/BBB-
or better. The TIAA Mortgage is prepayable in whole or in part subject to
certain provisions, including yield maintenance.
Harborside Mortgages
In connection with the acquisition of Harborside Financial Center
("Harborside"), on November 4, 1996, the Company assumed existing mortgage debt
and was provided seller-financed mortgage debt aggregating $150,000. The
existing financing of approximately $106,149 bears interest at a fixed rate of
7.32 percent for a term of approximately nine years. The seller-provided
financing of approximately $43,851 also has a term of nine years and initially
bears interest at a rate of 6.99 percent. The interest rate on the
seller-provided financing will be reset at the end of the third and sixth loan
years based on the yield of the three-year treasury obligation at that time,
with spreads of 110 basis points in years four through six and 130 basis points
in years seven through maturity.
<PAGE>
Mortgage Financing
Concurrent with the IPO, the Company's initial operating subsidiaries, which own
the Company's remaining initial 11 office properties and the initial
multi-family residential property (collectively, the "Initial Properties"),
issued five-year mortgage notes with an aggregate principal balance of $144,500
secured and cross-collateralized by the Initial Properties to an affiliate
("PSI") of Prudential Securities Inc. PSI then issued commercial mortgage
pay-through bonds ("Bonds") collateralized by the mortgage notes. Bonds with an
aggregate principal balance of $70,000 were purchased by unrelated third
parties. Bonds with an aggregate principal balance of $74,500 were purchased by
the Company. As a result, the Company's initial mortgage financing was $70,000
(the "Mortgage Financing"). Approximately $38,000 of the $70,000 is guaranteed
under certain conditions by certain partners of the Cali Group partnerships
which owned the Initial Properties. The Mortgage Financing requires monthly
payments of interest only, with all principal and any accrued but unpaid
interest due in August 1999. $46,000 of the $70,000 Mortgage Financing bears
interest at a net cost to the Company equal to a fixed rate of 8.02 percent per
annum and the remaining $24,000 bears interest at a net cost to the Company
equal to a floating rate of 100 basis points over one-month LIBOR (5.69141
percent at June 30, 1997) with a lifetime interest rate cap of 11.6 percent.
Pursuant to the terms of the Mortgage Financing, the Company is required to
escrow $143 per month for tenant improvements and leasing commissions and $53
per month for capital improvements. On March 12, 1996, the Company prepaid
$5,492 ($1,687 -- fixed rate debt, $3,805 -- floating rate debt) of the Mortgage
Financing, resulting in outstanding balances of $44,313 for the 8.02 percent
fixed rate debt and $20,195 for the floating rate debt. On August 12, 1997, the
Company prepaid in full the remaining balance and retired the Mortgage Financing
from funds made available primarily from drawing on the Unsecured Facility (see
below).
Fair Lawn Mortgage
In connection with the acquisition of an office building in Fair Lawn, New
Jersey on March 3, 1995, the Company assumed an $18,764 non-recourse mortgage
loan ("Fair Lawn Mortgage") collateralized by the property, bearing interest at
a fixed rate of 8.25 percent per annum. The loan required payment of interest
only through March 15, 1996 and payment of principal and interest thereafter, on
a 20-year amortization schedule, with the remaining principal balance due
October 1, 2003. For the six months ended June 30, 1997, the Company paid $201
for amortization of principal on the Fair Lawn Mortgage.
First Prudential Facility
The Company has a $70,000 revolving credit facility (the "First Prudential
Facility") with Prudential Securities Credit Corp. ("PSC"), which may be used to
fund acquisitions and new development projects and for general working capital
purposes, including capital expenditures and tenant improvements. In connection
with the Mortgage Financing, the Company obtained a $6,005 letter of credit (the
"Letter of Credit"), secured by the First Prudential Facility, to meet certain
tenant improvement and capital expenditure reserve requirements. The First
Prudential Facility bore interest at a floating rate equal to 150 basis points
over one-month LIBOR for January 1, 1996 through August 31, 1996. Effective
September 1, 1996, the interest rate was reduced to a floating rate equal to 125
basis points over one-month LIBOR. The First Prudential Facility is a recourse
liability of the Operating Partnership and is secured by a pledge of the $74,500
Bonds held by the Company. In conjunction with obtaining the Unsecured Facility
(see below), the Company repaid in full and terminated the First Prudential
Facility on August 7, 1997. Additionally, the Letter of Credit was canceled in
conjunction with prepayment of the Mortgage Financing on August 12, 1997.
<PAGE>
Bank Facility
On February 1, 1996, the Company obtained a credit facility (the "Bank
Facility") secured by certain of its properties in the amount of $75,000 from
two participating banks. The Bank Facility has a three-year term and bears
interest at 150 basis points over one-month LIBOR. The terms of the Bank
Facility include certain restrictions and covenants which limit, among other
things, dividend payments and additional indebtedness and which require
compliance with specified financial ratios and other financial measurements. The
Bank Facility also requires a fee equal to one quarter of one percent of the
unused balance payable quarterly in arrears. In conjunction with obtaining the
Unsecured Facility (see below), the Company repaid in full and terminated the
Bank Facility on August 7, 1997.
Second Prudential Facility
On November 4, 1996, the Company obtained a revolving credit facility ("Second
Prudential Facility") from PSC totaling $80,000 which bears interest at 125
basis points over one-month LIBOR, and matures on January 15, 1998. The Second
Prudential Facility is a recourse liability of the Operating Partnership and is
secured by the Company's equity interest in Harborside. The terms of the Second
Prudential Facility include certain restrictions and covenants that limit, among
other things, dividend payments and additional indebtedness and that require
compliance with specified financial ratios and other financial measurements. On
August 7, 1997, the Company repaid in full the outstanding balance under the
Second Prudential Facility with funds drawn from the Unsecured Facility.
Additionally, on August 12, 1997, the Second Prudential Facility was amended,
increasing the total commitment from $80,000 to $100,000 and extending the
maturity date to August 31, 1998.
Contingent Obligation
As part of the Harborside acquisition, the Company agreed to make payments (with
an estimated net present value of approximately $5,252 at acquisition date) to
the seller for development rights ("Contingent Obligation") if and when the
Company commences construction on the acquired site during the next several
years. However, the agreement provides, among other things, that even if the
Company does not commence construction, the seller may nevertheless require the
Company to acquire these rights during the six-month period after the end of the
sixth year. After such period, the seller's option lapses, but any development
in years 7 through 30 will require a payment, on an increasing scale, for the
development rights. For the six months ended June 30, 1997, interest imputed on
the Contingent Obligation was capitalized to land, thereby increasing the
balance of the Contingent Obligation to $5,526 as of June 30, 1997.
Unsecured Facility
On August 6, 1997, the Company obtained an unsecured revolving credit facility
(the "Unsecured Facility") in the amount of $400,000 from a group of 13 lender
banks. The Unsecured Facility has a three-year term and currently bears interest
at 125 basis points over one-month LIBOR. Based upon the Company's achievement
of an investment grade long term unsecured debt rating, the interest rate will
be reduced, on a sliding scale, and a competitive bid option will become
available.
The terms of the Unsecured Facility include certain restrictions and covenants
which limit, among other things, dividend payments and additional indebtedness
and which require compliance with specified financial ratios and other financial
measurements. The Unsecured Facility also requires a fee on the unused balance
payable quarterly in arrears, at a rate ranging from one-eighth of one percent
to one-quarter of one percent of such balance, depending on the level of
borrowing outstanding in relation to the total facility commitment.
<PAGE>
The lending group for the Unsecured Facility includes: Fleet National Bank, The
Chase Manhattan Bank, and Bankers Trust Company, as agents; PNC Bank, N.A., Bank
of America National Trust and Savings Association, Commerzbank, and First
National Bank of Chicago, as co-agents; and Keybank, Summit Bank, Crestar Bank,
Mellon Bank, N.A., Signet Bank, and Kredeitbank NV.
In conjunction with the Company obtaining the Unsecured Facility, the Company
drew funds on the new facility to repay in full and terminate both the First
Prudential Facility and the Bank Facility. The Company drew an additional
$70,000 to repay in full the outstanding balance under the Second Prudential
Facility. As of August 12, 1997, the Company's two remaining revolving credit
facilities consist of the Unsecured Facility and the Second Prudential Facility.
Interest Rate Swap Agreements
On May 24, 1995, the Company entered into an interest rate swap agreement with a
commercial bank. The swap agreement fixes the Company's one-month LIBOR base to
a fixed 6.285 percent per annum on a notional amount of $24,000 through August
1999.
On January 23, 1996, the Company entered into another interest rate swap
agreement with a commercial bank. This swap agreement has a three-year term and
a notional amount of $26,000, which fixes the Company's one-month LIBOR base to
5.265 percent.
The Company is exposed to credit loss in the event of non-performance by the
other parties to the interest rate swap agreements. However, the Company does
not anticipate non-performance by either counterparty.
Cash paid for interest for the three- and six-month periods ended June 30, 1997
was $8,060 and $16,563, respectively.
7. MINORITY INTEREST
Certain individuals and entities own Units in the Operating Partnership. A Unit
and a share of common stock of the Company have substantially the same economic
characteristics in as much as they effectively share equally in the net income
or loss of the Operating Partnership. Minority interest in the accompanying
consolidated financial statements relates to Units held by parties other than
the Company.
Units are redeemable by the unitholders at their option, subject to certain
restrictions, on the basis of one Unit for either one share of common stock or
cash equal to the fair market value of a share at the time of the redemption.
The Company has the option to deliver shares of common stock in exchange for all
or any portion of the cash requested. When a unitholder redeems a Unit, minority
interest is reduced and the Company's investment in the Operating Partnership is
increased.
On January 31, 1997, 1,401,225 Units were issued in connection with the RM
Transaction. As of June 30, 1997 and December 31, 1996, the minority interest
unitholders owned 10.0 and 6.9 percent of the Operating Partnership,
respectively.
8. EMPLOYEE BENEFIT PLAN
All employees of the Company who meet certain minimum age and period of service
requirements are eligible to participate in a Section 401(k) plan (the "Plan")
as defined by the Code. The Plan allows eligible employees to defer up to 15
percent of their annual compensation. The amounts contributed by employees are
immediately vested and non-forfeitable. The Company, at management's discretion,
may match employee contributions. No employer contributions have been made to
date.
<PAGE>
9. COMMITMENTS AND CONTINGENCIES
Tax Abatement Agreements
Grove Street Property
Pursuant to an agreement with the City of Jersey City, New Jersey, as amended,
expiring in 2004, the Company is required to make payments in lieu of property
taxes ("PILOT") on its property at 95 Christopher Columbus Drive, Jersey City,
Hudson County, New Jersey. Such PILOT, as defined, is $1,267 per annum through
May 31, 1999 and $1,584 per annum through May 31, 2004.
Harborside Financial Center Property
Pursuant to a separate agreement with the City of Jersey City, New Jersey
obtained by the former owner of the Harborside property in 1988 and assumed by
the Company as part of the acquisition of the property on November 4, 1996, the
Company is required to make PILOT payments on its Harborside property. The
abatements, which commenced in 1990, are for a term of 15 years. Such PILOT is
equal to two percent of Total Project Costs, as defined, in year one and
increases by $75 per annum through year fifteen. Total Project Costs, as
defined, are $148,712.
10. TENANT LEASES
The Properties are leased to tenants under operating leases with various
expiration dates through 2020. Substantially all of the leases provide for
annual base rents plus recoveries and escalation charges based upon the tenant's
proportionate share of and/or increases in real estate taxes and certain
operating costs, as defined, and the pass through of charges for electrical
usage.
11. STOCKHOLDERS' EQUITY
To maintain its qualification as a REIT, not more than 50 percent in value of
the outstanding shares of the Company may be owned, directly or indirectly, by
five or fewer individuals (defined to include certain entities), applying
certain constructive ownership rules. To help ensure that the Company will not
fail this test, the Company's Articles of Incorporation provide for, among other
things, certain restrictions on the transfer of the common stock to prevent
further concentration of stock ownership. Moreover, to evidence compliance with
these requirements, the Company must maintain records that disclose the actual
ownership of its outstanding common stock and will demand written statements
each year from the holders of record of designated percentages of its common
stock requesting the disclosure of the beneficial owners of such common stock.
On May 13, 1996, the stockholders approved an increase in the authorized shares
of common stock in the Company from 25,000,000 to 95,000,000.
On July 29, 1996, the Company filed a shelf registration statement (File No.
333-09081) with the SEC for an aggregate amount of $500,000 in equity securities
of the Company. The registration statement was declared effective by the SEC on
August 2, 1996.
On August 13, 1996, the Company sold 3,450,000 shares of its common stock
through a public stock offering (the "August 1996 Offering"), which included an
exercise of the underwriters over-allotment option of 450,000 shares. Net
proceeds from the August 1996 Offering (after offering costs) were approximately
$76,830. The offering was conducted using one underwriter and the shares were
issued from the Company's $250,000 shelf registration statement (File No.
33-96538).
<PAGE>
Pursuant to the Company's $500,000 shelf registration statement (File No.
333-09081), on November 22, 1996, the Company completed an underwritten public
offer and sale of 17,537,500 shares of its common stock using several different
underwriters to underwrite such public offer and sale (which included an
exercise of the underwriters' over-allotment option of 2,287,500 shares). The
Company received approximately $441,215 in net proceeds (after offering costs)
from the offering, and used such funds to acquire certain of the Company's
property acquisitions in November and December 1996, pay down outstanding
borrowings on its revolving credit facilities, and investing the excess funds in
Overnight Investments.
On December 31, 1996, the Company filed a shelf registration statement (File No.
333-19101) with the SEC for an aggregate amount of $1,000,000 in equity
securities of the Company. The registration statement was declared effective by
the SEC on January 7, 1997.
On May 15, 1997, the stockholders approved an increase in the authorized shares
of common stock in the Company from 95,000,000 to 190,000,000.
Stock Option Plans
In 1994, and as afterwards amended, the Company established the Cali Employee
Stock Option Plan ("Employee Plan") and the Cali Director Stock Option Plan
("Director Plan") under which a total of 2,980,188 (subject to adjustment) of
the Company's shares of common stock have been reserved for issuance (2,780,188
shares under the Employee Plan and 200,000 shares under the Director Plan).
Stock options granted under the Employee Plan in 1994 and 1995 become
exercisable over a three-year period and those options granted under the
Employee Plan in 1996 and 1997 become exercisable over a five-year period. All
stock options under the Director Plan become exercisable in one year. All
options were granted at the fair market value at the dates of grant and have
terms of ten years.
<PAGE>
Information regarding the Company's stock option plans is summarized below:
<TABLE>
<CAPTION>
Employee Director
Plan Plan
-------- --------
<S> <C> <C>
Shares under option:
Granted on August 31, 1994 at
$15.25-$17.25 per share 600,000 25,000
----------------------------------------------------------------------------------------------------------
Outstanding at December 31, 1994
$15.25 - $17.25 per share 600,000 25,000
Granted at $17.25-$19.875 per share 220,200 10,000
Less - Lapsed or canceled (3,588) --
----------------------------------------------------------------------------------------------------------
Outstanding at December 31, 1995
$15.25 - $19.875 per share 816,612 35,000
Granted at $21.50-$26.25 per share 795,700 14,000
Less - Lapsed or canceled (7,164) --
Exercised at $17.25 per share (116,041) (10,000)
----------------------------------------------------------------------------------------------------------
Outstanding at December 31, 1996
$15.25 - $26.25 per share 1,489,107 39,000
Granted at $33.00 per share -- 5,000
Granted at $33.875 per share -- 5,000
Granted at $30.75 per share 171,460 --
Granted at $30.25 per share 148,000 --
Less - Lapsed or canceled (24,773) --
Exercised at $17.25 - $25.25 per share (132,865) --
----------------------------------------------------------------------------------------------------------
Outstanding at June 30, 1997
$15.25 - $33.875 per share 1,650,929 49,000
==========================================================================================================
Exercisable at June 30, 1997 451,703 39,000
----------------------------------------------------------------------------------------------------------
Available for grant at December 31, 1996 175,040 51,000
Available for grant at June 30, 1997 880,353 141,000
----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Stock Compensation
In January 1997, the Company entered into employment contracts with seven of its
key executives which provide for, among other things, compensation in the form
of stock awards (the "Stock Award Rights") and Company- financed stock purchase
rights (the "Stock Purchase Rights"), and associated tax obligation payments. In
connection with the Stock Award Rights, the executives will receive 199,070
shares of the Company's common stock vesting over a five-year period contingent
on the Company meeting certain performance objectives. Additionally, pursuant to
the terms of the Stock Purchase Rights, the Company provided fixed rate,
non-prepayable loans, aggregating $4,750, to such executives to finance their
purchase of 152,000 shares of the Company's common stock, which the Company has
agreed to forgive ratably over five years. Such loans were for amounts equal to
the fair market value of the associated shares at the date of grant.
Subsequently, from April 18, 1997 through April 24, 1997, the Company purchased,
for constructive retirement, 152,000 shares of its outstanding common stock for
$4,680. The excess of the purchase price over par value was recorded as a
reduction to additional paid-in capital. Concurrent with this purchase, the
Company sold to the Operating Partnership 152,000 Units for $4,680.
The market value of the Stock Award Rights at June 30, 1997, net of amounts
recognized as compensation expense, is recorded as unamortized stock
compensation and shown as a separate component of stockholders' equity.
Unamortized stock compensation for the Stock Award Rights is amortized to
expense as certain performance objectives are reached.
Additionally, the balance of the loans related to the Stock Purchase Rights at
the grant date, net of amounts recognized as compensation expense, is recorded
as unamortized stock compensation and shown as a separate component of
stockholders' equity. Unamortized stock compensation is amortized to expense
ratably over the five-year vesting period.
Included in general and administrative expense for the three and six month
periods ended June 30, 1997 is $828 and $1,478, respectively, relating to the
Stock Award Rights and Stock Purchase Rights.
12. FASB NO. 128 PRO FORMA EARNINGS PER SHARE
In February 1997, the FASB issued Statement No. 128, "Earnings Per Share" which
is effective for periods ending after December 15, 1997. The following pro forma
information presents the Company's results for the periods indicated in
accordance with the new Statement.
For the three month period ended June 30, 1997:
<TABLE>
<CAPTION>
Per Share
Net Income Shares Amounts
---------- ------ -------
<S> <C> <C> <C>
Pro Forma Basic EPS $18,025 36,488,523 $0.49
Pro Forma Diluted EPS $18,025 36,907,293 $0.49
</TABLE>
The following schedule reconciles the shares used in the pro forma basic EPS
calculation to the shares used in the pro forma diluted EPS calculation:
Pro Forma Basic EPS Shares: 36,488,523
Add: Stock Options 418,770
----------
Pro Forma Diluted EPS Shares: 36,907,293
==========
<PAGE>
For the six month period ended June 30, 1997:
<TABLE>
<CAPTION>
Per Share
Net Income Shares Amounts
---------- ------ -------
<S> <C> <C> <C>
Pro Forma Basic EPS $34,484 36,474,942 $0.95
Pro Forma Diluted EPS $34,484 36,967,249 $0.93
</TABLE>
The following schedule reconciles the shares used in the pro forma basic EPS
calculation to the shares used in the pro forma diluted EPS calculation:
Pro Forma Basic EPS Shares: 36,474,942
Add: Stock Options 492,307
----------
Pro Forma Diluted EPS Shares: 36,967,249
==========
13. PRO FORMA FINANCIAL INFORMATION
The following pro forma financial information for the three and six month
periods ended June 30, 1997 and 1996 are presented as if the acquisitions and
common stock offerings in 1996, the January 1997 RM Transaction and the May 1997
acquisition of Westlakes had occurred on January 1, 1996. In management's
opinion, all adjustments necessary to reflect the effects of these transactions
have been made.
This pro forma financial information is not necessarily indicative of what the
actual results of operations of the Company would have been assuming such
transactions had been completed as of January 1, 1996, nor do they represent the
results of operations of future periods.
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
--------------------------- -------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues $ 61,845 $ 58,678 $122,617 $116,408
Operating and other expenses 18,495 17,735 36,772 35,780
General and administrative 3,996 3,213 7,583 5,895
Depreciation and amortization 9,261 8,883 18,322 17,515
Interest expense 9,873 9,800 19,780 19,673
- -------------------------------------------------------------------------------------------------------------------
Income before minority interest 20,220 19,047 40,160 37,545
Minority interest 2,101 1,939 4,018 3,845
- -------------------------------------------------------------------------------------------------------------------
Net income $ 18,119 $ 17,108 $ 36,142 $ 33,700
===================================================================================================================
Net income per common share $ 0.50 $ 0.47 $ 0.99 $ 0.93
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
CALI REALTY CORPORATION AND SUBSIDIARIES
Item 2:
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the Consolidated
Financial Statements of Cali Realty Corporation and the notes thereto.
The following comparisons for the three and six month periods ended June 30,
1997 ("1997"), as compared to the three and six month periods ended June 30,
1996 ("1996") make reference to the following: (i) the effect of the
"Pre-Acquisition Properties," which represents all properties owned by the
Company at March 31, 1996 (for the three-month period comparisons), and
which represents all properties owned by the Company at December 31, 1995
(for the six-month period comparisons), (ii) the effect of the "Acquired
Properties," which for the three-month period comparisons represents all
properties acquired by the Company from April 1, 1996 through June 30, 1997
(excluding RM), and for the six-month period comparisons represents all
properties acquired by the Company from January 1, 1996 through June 30,
1997 (excluding RM), (iii) the effect of the "Disposition," which refers to
the Company's sale of its Essex Road property on March 20, 1996, and (iv)
the effect of the acquisition of the "RM Properties" on January 31, 1997.
Three Months Ended June 30, 1997 Compared to
Three Months Ended June 30, 1996
Total revenues increased $39.5 million, or 188.1 percent, for the three
months ended June 30, 1997 over the same period in 1996. Base rents
increased $33.1 million, or 191.9 percent, of which an increase of $16.6
million, or 96.5 percent, was attributable to the Acquired Properties, an
increase of $16.0 million, or 92.4 percent, due to the RM Properties, and an
increase of $0.5 million, or 3.0 percent, due to occupancy changes at the
Pre-Acquisition Properties. Escalations and recoveries increased $4.5
million, or 143.3 percent, of which an increase of $3.0 million, or 94.9
percent, was attributable to the Acquired Properties, an increase of $1.4
million, or 44.7 percent, due to the RM Properties, and an increase of $0.1
million, or 3.7 percent, due to occupancy changes at the Pre-Acquisition
Properties.
Total expenses for the three months ended June 30, 1997 increased $26.2
million, or 182.9 percent, as compared to the same period in 1996. Real
estate taxes increased $4.3 million, or 196.1 percent, for 1997 over 1996,
of which an increase of $1.7 million, or 79.0 percent, was attributable to
the Acquired Properties, an increase of $2.5 million, or 113.6 percent, due
to the RM Properties, and an increase of $0.1 million, or 3.5 percent,
attributable to the Pre-Acquisition Properties. Additionally, operating
services increased $4.9 million, or 192.9 percent, and utilities increased
$2.3 million, or 125.0 percent, for 1997 over 1996. The aggregate increase
in operating services and utilities of $7.2 million, or 163.9 percent,
consists of $3.6 million, or 82.0 percent, attributable to the Acquired
Properties, an increase of $3.5 million, or 80.0 percent, due to the RM
Properties, and an increase of $0.1 million, or 1.9 percent, attributable to
the Pre-Acquisition Properties. General and administrative expense increased
$2.6 million, or 232.8 percent, of which $0.8 million, or 70.6 percent, is
attributable to additional costs related to the RM Properties and $1.8
million, or 162.2 percent, is due primarily to an increase in payroll and
<PAGE>
related costs as a result of the Company's expansion in late 1996 and early
1997. Depreciation and amortization increased $5.5 million, or 151.2
percent, for 1997 over 1996, of which $2.7 million, or 75.4 percent, relates
to depreciation on the Acquired Properties, an increase of $2.7 million, or
73.6 percent, attributable to the RM Properties, and an increase of $0.1
million, or 2.2 percent, due to the Pre-Acquisition Properties. Interest
expense increased $6.6 million, or 220.2 percent, for 1997 over 1996, of
which $3.3 million, or 110.9 percent, was attributable to the TIAA Mortgage,
$2.7 million, or 90.7 percent, due to the Harborside Mortgages, and an
increase of $0.6 million, or 18.6 percent, due to net additional drawings
from the Company's credit facilities as a result of Company acquisitions, as
well as changes in LIBOR.
Income before gain on sale of rental property, minority interest, and
extraordinary item increased to $20.0 million in 1997 from $6.7 million in
1996. The increase of $13.3 million was due to the factors discussed above.
Net income increased $12.3 million for the three months ended June 30, 1997
from $5.7 million in 1996 to $18.0 million in 1997, as a result of the
increase in income before gain on sale of rental property, minority interest
and extraordinary item of $13.3 million, offset by an increase in minority
interest of $1.0 million in 1997 from 1996.
Six Months Ended June 30, 1997 Compared to Six Months Ended June 30, 1996
Total revenues increased $72.1 million, or 177.7 percent, for the six months
ended June 30, 1997 over the same period in 1996. Base rents increased $59.9
million, or 180.0 percent, of which an increase of $32.7 million, or 98.3
percent, was attributable to the Acquired Properties, an increase of $26.4
million, or 79.2 percent, due to the RM Properties, and an increase of $1.1
million, or 3.3 percent, due to occupancy changes at the Pre-Acquisition
Properties, offset by a decrease of $0.3 million or 0.8 percent, as a result
of the Disposition. Escalations and recoveries increased $8.0 million, or
129.1 percent, of which an increase of $5.8 million, or 92.3 percent, was
attributable to the Acquired Properties, an increase of $2.1 million, or
33.8 percent, due to the RM Properties, and an increase of $0.2 million, or
3.5 percent, due to occupancy changes at the Pre-Acquisition Properties,
offset by a decrease of $0.1 million, or 0.5 percent, as a result of the
Disposition.
<PAGE>
Total expenses for the six months ended June 30, 1997 increased $46.8
million, or 168.6 percent, as compared to the same period in 1996. Real
estate taxes increased $7.8 million, or 187.2 percent, for 1997 over 1996,
of which an increase of $3.5 million, or 84.0 percent, was attributable to
the Acquired Properties, an increase of $4.2 million, or 99.7 percent, due
to the RM Properties, and an increase of $0.2 million, or 4.7 percent,
attributable to the Pre-Acquisition Properties, offset by a decrease of $0.1
million, or 1.2 percent, as a result of the Disposition. Additionally,
operating services increased $8.4 million, or 159.1 percent, and utilities
increased $4.2 million, or 111.5 percent, for 1997 over 1996. The aggregate
increase in operating services and utilities of $12.6 million, or 139.4
percent, consists of $7.4 million, or 81.9 percent, attributable to the
Acquired Properties, and an increase of $5.8 million, or 63.5 percent, due
to the RM Properties, offset by a decrease of $0.2 million, or 1.8 percent,
as a result of the Disposition, and a decrease of $0.4 million, or 4.2
percent, attributable to the Pre-Acquisition Properties. General and
administrative expense increased $4.9 million, or 235.6 percent, of which
$1.2 million, or 58.1 percent, is attributable to additional costs related
to the RM Properties and $3.7 million, or 177.5 percent, is due primarily to
an increase in payroll and related costs as a result of the Company's
expansion in late 1996 and early 1997. Depreciation and amortization
increased $9.9 million, or 143.8 percent, for 1997 over 1996, of which $5.3
million, or 76.5 percent, relates to depreciation on the Acquired
Properties, an increase of $4.4 million, or 63.5 percent, attributable to
the RM Properties, and an increase of $0.3 million, or 5.0 percent, due to
the Pre-Acquisition Properties, offset by a decrease of $0.1 million, or 1.2
percent, related to the Disposition. Interest expense increased $11.6
million, or 208.0 percent, for 1997 over 1996, of which $5.5 million, or
99.6 percent, was attributable to the TIAA Mortgage, $5.4 million, or 97.4
percent, due to the Harborside Mortgages, and an increase of $0.8 million,
or 12.0 percent, due to net additional drawings from the Company's credit
facilities as a result of Company acquisitions as well as changes in LIBOR,
offset by a decrease of $0.1 million or 1.0 percent, related to the March
1996 partial prepayment of the Mortgage Financing.
Income before gain on sale of rental property, minority interest, and
extraordinary item increased to $38.1 million in 1997 from $12.8 million in
1996. The increase of $25.3 million was due to the factors discussed above.
Net income increased $19.3 million for the six months ended June 30, 1997
from $15.2 million in 1996 to $34.5 million in 1997, as a result of the
increase in income before gain on sale of rental property, minority interest
and extraordinary item of $25.3 million and the recognition in 1996 of an
extraordinary loss for $0.5 million (net of minority interest), offset by
the gain on sale of rental property of $5.7 million recognized in 1996, and
the increase in minority interest of $0.8 million in 1997 over 1996.
<PAGE>
Liquidity and Capital Resources
Statement of Cash Flows
During the six months ended June 30, 1997, the Company generated $59.2
million in cash flows from operating activities, and together with $132.9
million in borrowings from the Company's credit facilities, $2.5 million of
proceeds from stock options exercised and $198.7 million from the Company's
cash reserves, used an aggregate of $393.3 million to (i) purchase 70 rental
properties and other tenant improvements and building improvements for
$308.5 million, (ii) pay $11.6 million for a Mortgage Note Receivable, (iii)
pay quarterly dividends and distributions of $35.7 million, (iv) pay the
amortization on mortgage principal of $0.2 million, (v) repay outstanding
borrowings on its credit facilities by $32.3 million, (vi) increase its
restricted cash by $0.3 million, and (vii) repurchase 152,000 shares of the
Company's common stock for $4.7 million.
Capitalization
On January 23, 1996, the Company entered into an interest rate swap
agreement with a commercial bank. The swap agreement has a three-year term
and a notional amount of $26 million which fixes the Company's one-month
LIBOR base to 5.265 percent.
On February 1, 1996, the Company obtained a credit facility (the "Bank
Facility") secured by certain of its properties in the amount of $75 million
from two participating banks. The Bank Facility has a three-year term and
bears interest at 150 basis points over one-month LIBOR. The terms of the
Bank Facility include certain restrictions and covenants which limit, among
other things, dividend payments and additional indebtedness and which
require compliance with specified financial ratios and other financial
measurements. The Bank Facility also requires a fee equal to one quarter of
one percent of the unused balance payable quarterly in arrears. In
conjunction with obtaining the Unsecured Facility, the Company repaid in
full and terminated the Bank Facility on August 7, 1997.
On July 29, 1996, the Company filed a shelf registration statement (File No.
333-09081) with the SEC for an aggregate amount of $500 million in equity
securities of the Company. The registration statement was declared effective
by the SEC on August 2, 1996.
On August 13, 1996, the Company sold 3,450,000 shares of its common stock
through a public stock offering (the "August 1996 Offering"), which included
an exercise of the underwriters' over-allotment option of 450,000 shares.
Net proceeds from the August 1996 Offering (after offering costs) were
approximately $76.8 million. The offering was conducted using one
underwriter and the shares were issued from the Company's $250 million shelf
registration statement (File No. 33-96538).
<PAGE>
On November 4, 1996, the Company obtained a revolving credit facility
("Second Prudential Facility") from PSC totaling $80 million which bears
interest at 125 basis points over one-month LIBOR, and matures on January
15, 1998. The Second Prudential Facility is a recourse liability of the
Operating Partnership and is secured by the Company's equity interest in
Harborside. The terms of the Second Prudential Facility include certain
restrictions and covenants that limit, among other things, dividend payments
and additional indebtedness and that require compliance with specified
financial ratios and other financial measurements. On August 7, 1997, the
Company repaid in full the outstanding balance under the Second Prudential
Facility with funds drawn from the Unsecured Facility. Additionally, on
August 12, 1997, the Second Prudential Facility was amended, increasing the
total commitment from $80 million to $100 million and extending the maturity
date to August 31, 1998.
In addition, on November 4, 1996, the Company assumed existing debt and was
provided seller-financed mortgage debt aggregating $150 million (as more
fully described in Note 6).
Pursuant to the Company's $500 million shelf registration statement (File
No. 333-09081), on November 22, 1996, the Company completed an underwritten
public offer and sale of 17,537,500 shares of its common stock using several
different underwriters to underwrite such public offer and sale (which
included an exercise of the underwriters' over-allotment option of 2,287,500
shares). The Company received approximately $441.2 million in net proceeds
(after offering costs) from the offering, and used such funds to acquire
certain of the Company's property acquisitions in November and December
1996, pay down outstanding borrowings on its revolving credit facilities,
and investing the excess funds in Overnight Investments.
On December 31, 1996, the Company filed a shelf registration statement (File
No. 333-19101) with the SEC for an aggregate amount of $1 billion in equity
securities of the Company. The registration statement was declared effective
by the SEC on January 7, 1997.
In connection with the RM Transaction on January 31, 1997, the Company
assumed a $185.3 million non-recourse mortgage loan with TIAA (as more fully
described in Note 6).
From April 18, 1997 through April 24, 1997, the Company purchased, for
constructive retirement, 152,000 shares of its outstanding common stock for
$4.7 million. Concurrent with this purchase, the Company sold to the
Operating Partnership 152,000 Units for $4.7 million.
On August 6, 1997, the Company obtained an unsecured revolving credit
facility (the "Unsecured Facility") in the amount of $400 million from a
group of 13 lender banks. The Unsecured Facility has a three-year term and
currently bears interest at 125 basis points over one-month LIBOR. Based
upon the Company's achievement of an investment grade long term unsecured
debt rating, the interest rate will be reduced, on a sliding scale, and a
competitive bid option will become available.
The lending group for the Unsecured Facility includes: Fleet National Bank,
The Chase Manhattan Bank, and Bankers Trust Company, as agents; PNC Bank,
N.A., Bank of America National Trust and Savings Association, Commerzbank,
and First National Bank of Chicago, as co-agents; and Keybank, Summit Bank,
Crestar Bank, Mellon Bank, N.A., Signet Bank, and Kredeitbank NV.
<PAGE>
In conjunction with the Company obtaining the Unsecured Facility, the
Company drew funds on the new facility to repay in full and terminate both
the First Prudential Facility and the Bank Facility. The Company drew an
additional $70 million to repay in full the outstanding balance under the
Second Prudential Facility. As of August 12, 1997, the Company's two
remaining revolving credit facilities consist of the Unsecured Facility and
the Second Prudential Facility.
On August 12, 1997, the Company prepaid in full and retired the secured
Mortgage Financing from funds made available primarily from drawing on the
Unsecured Facility.
Following this secured debt prepayment, the Company has four remaining
secured mortgage debt instruments; the $185.3 million TIAA Mortgage, the two
mortgages comprising the $150 million in Harborside Mortgages, and the $18.2
million Fair Lawn Mortgage.
As of August 12, 1997, the Company now has 83 unencumbered properties
totaling seven million square feet, representing 58 percent of the Company's
portfolio.
Historically, rental revenue has been the principal source of funds to pay
operating expenses, debt service and capital expenditures, excluding
non-recurring capital expenditures. Management believes that the Company
will have access to the capital resources necessary to expand and develop
its business. To the extent that the Company's cash flow from operating
activities is insufficient to finance its non-recurring capital expenditures
such as property acquisition costs and other capital expenditures, the
Company expects to finance such activities through the credit facilities and
other debt and equity financing.
The Company expects to meet its short-term liquidity requirements generally
through its working capital and net cash provided by operating activities,
along with the Second Prudential Facility and the Unsecured Facility. The
Company is frequently examining potential property acquisitions and, at any
one given time, one or more of such acquisitions may be under consideration.
Accordingly, being able to fund property acquisitions is a major part of the
Company's financing requirements. The Company expects to meet its financing
requirements through funds generated from operating activities, long-term or
short term borrowings (including draws on the Company's credit facilities),
and the issuance of debt securities or additional equity securities. In
addition, the Company anticipates utilizing the Second Prudential Facility
and the Unsecured Facility primarily to fund property acquisition
activities.
The Company does not intend to reserve funds to retire the existing TIAA
Mortgage and Harborside Mortgages, indebtedness under the credit facilities
or other mortgages and loans payable upon maturity. Instead, the Company
will seek to refinance such debt at maturity or retire such debt through the
issuance of additional equity securities. The Company anticipates that its
available cash and cash equivalents and cash flows from operating
activities, together with cash available from borrowings and other sources,
will be adequate to meet the Company's capital and liquidity needs both in
the short and long-term. However, if these sources of funds are insufficient
or unavailable, the Company's ability to make the expected distributions
discussed below may be adversely affected.
<PAGE>
To maintain its qualification as a REIT, the Company must make annual
distributions to its stockholders of at least 95 percent of its REIT taxable
income, excluding the dividends paid deduction and net capital gains.
Moreover, the Company intends to continue to make regular quarterly
distributions to its stockholders which, based upon current policy, in the
aggregate would equal approximately $66 million on an annualized basis.
However, any such distribution, whether for federal income tax purposes or
otherwise, would only be paid out of available cash after meeting both
operating requirements and scheduled debt service on mortgages and loans
payable and required annual capital expenditure reserves pursuant to its
mortgage indenture.
Funds from Operations
The Company considers Funds from Operations, after adjustment for
straight-lining of rents, one measure of REIT performance. Funds from
Operations is defined as net income (loss) before minority interest of
unitholders, computed in accordance with Generally Accepted Accounting
Principles, excluding gains (or losses) from debt restructuring and sales of
property, plus real estate-related depreciation and amortization. Funds from
Operations should not be considered as an alternative to net income as an
indication of the Company's performance or to cash flows as a measure of
liquidity.
<PAGE>
Funds from Operations for the three and six month periods ended June 30,
1997 and 1996, as calculated in accordance with the National Association of
Real Estate Investment Trusts' definition published in March 1995, are
summarized in the following table (in thousands):
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Income before gain on sale of rental property,
minority interest, and extraordinary item $ 20,037 $ 6,693 $ 38,132 $ 12,821
Add: Real estate-related depreciation and
amortization 8,786 3,334 16,265 6,355
- -------------------------------------------------------------------------------------------------------------------
Funds from Operations 28,823 10,027 54,397 19,176
- -------------------------------------------------------------------------------------------------------------------
Deduct: Rental income adjustment for
straight-lining of rents (2,337) (135) (3,944) (204)
- -------------------------------------------------------------------------------------------------------------------
Funds from Operations after adjustment
for straight-lining of rents $ 26,486 $ 9,892 $ 50,453 $ 18,972
===================================================================================================================
Weighted average shares outstanding (1) 40,579 17,902 40,334 17,900
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Assumes redemption of all Units, calculated on a weighted average basis,
for shares of Common stock in the Company.
Inflation
The Company's leases with the majority of its tenants provide for recoveries
and escalation charges based upon the tenant's proportionate share of and/or
increases in real estate taxes and certain operating costs, which reduce the
Company's exposure to increases in operating costs resulting from inflation.
<PAGE>
CALI REALTY CORPORATION
Part II -- Other Information
Item 6. Exhibits
The following exhibits are filed herewith:
Exhibit 10.92 Purchase and Sale Contract between Beacon Properties L.P.
as "Seller" and Cali Realty Acquisitions Corporation as
"Buyer" dated April 9, 1997.
Exhibit 10.93 First Amendment to Purchase and Sale Contract between
Beacon Properties L.P. and Cali Realty Acquisitions
Corporation dated April 18, 1997.
Exhibit 10.94 Revolving Credit Agreement among Cali Realty, L.P. and
certain of its Subsidiaries and Fleet National Bank and
Other Lenders Which May Become Parties to this Agreement
and Fleet National Bank, as Administrative Agent, with
Fleet National Bank, as Loan Arranger, the Chase Manhattan
Bank, as Syndication Agent, Bankers Trust Company, as
Documentation Agent and PNC Bank, N.A., Commerzbank, Bank
of America National Trust and Savings Association, and
First National Bank of Chicago, as Co-Agents, dated as of
August 6, 1997.
<PAGE>
CALI REALTY CORPORATION
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Cali Realty Corporation
(Registrant)
Date: August 13, 1997 /s/ Thomas A. Rizk
------------------
Thomas A. Rizk
President and Chief Executive Officer
(signing on behalf of the Registrant)
/s/ Barry Lefkowitz
-------------------
Date: August 13, 1997 Barry Lefkowitz
Chief Financial Officer
PURCHASE AND SALE CONTRACT
between
BEACON PROPERTIES, L.P.
as "Seller"
and
CALI REALTY ACQUISITION CORPORATION
as "Buyer"
ONE, TWO, THREE AND FIVE WESTLAKES
WESTLAKES OFFICE PARK
TREDYFFRIN TOWNSHIP, PENNSYLVANIA
as of April __, 1997
<PAGE>
Table of Contents
-----------------
ARTICLE 1 Description of Property
ARTICLE 2. Sale Subject to Leases
ARTICLE 3. Purchase Price and Payment
ARTICLE 4. Form of Conveyance
ARTICLE 5. Closing
ARTICLE 6. Approvals and Conditions to Buyer's Obligations
ARTICLE 6A. Conditions Precedent
ARTICLE 7. Default
ARTICLE 8. Entire Agreement Herein
ARTICLE 9. Damage or Destruction: Condemnation
ARTICLE 10. Representations and Warranties of Seller
ARTICLE 11. Operations
ARTICLE 12. Apportionment of Taxes and Other Charges
ARTICLE 13. Broker
ARTICLE 14. Recording
ARTICLE 15. Notices
ARTICLE 16. Captions
<PAGE>
ARTICLE 17. Successors and Assigns
ARTICLE 18. Closing Costs
ARTICLE 19. Governing Law
ARTICLE 20. Multiple Counterparts
ARTICLE 21. Representations and Warranties of Buyer
ARTICLE 22. Post-Closing Obligations
ARTICLE 23. Duties and Responsibilities of Escrow Agent
ARTICLE 24. Like Kind Exchange
ARTICLE 25. Conditions Precedent To Closing
ARTICLE 26. Miscellaneous
ARTICLE 27. Title Matters.
Exhibits
- --------
Exhibit A Description of Real Property
Exhibit B Personal Property
Exhibit C Leases and Rent Roll
Exhibit C-1 Form of Lease
Exhibit D Form of Deed
Exhibit E Intentionally Omitted
Exhibit F Form of Assignment and Assumption Agreement (re: Leases)
Exhibit G Form of Assignment and Assumption Agreement (re: Contracts)
Exhibit H Form of FIRPTA Affidavit
Exhibit I Operating Contracts
Exhibit J Litigation, etc.
Exhibit K Tenant Estoppel Certificate
Exhibit L Tenant Notices
Exhibit M Brokerage Commissions
<PAGE>
PURCHASE AND SALE CONTRACT
THIS AGREEMENT (the "Contract") made as of this _______ day of April,
1997, by and between BEACON PROPERTIES, L.P., having an office at 50 Rowes
Wharf, Boston, Massachusetts 02110 (hereinafter referred to as "Seller"), and
CALI REALTY ACQUISITION CORPORATION, having an office at 11 Commerce Drive,
Cranford, New Jersey, 07016-3599 (hereinafter referred to as "Buyer").
WITNESSETH THAT, Seller owns the land described on Exhibit A hereto
together with the buildings and improvements thereon, comprising those office
buildings commonly known as One, Two, Three and Five Westlakes, Westlakes Office
Park, Tredyffrin Township, Chester County, Pennsylvania.
WITNESSETH FURTHER THAT, Seller desires to sell and Buyer desires to
purchase the Property (as hereinafter defined) on the terms and subject to the
conditions set forth herein.
WITNESSETH FURTHER THAT, for the consideration hereinafter named, and
for other good and valuable consideration, receipt and sufficiency of which is
acknowledged hereby, the parties do hereby agree as follows:
ARTICLE 1. Description of Property: Seller agrees to sell and Buyer
agrees to buy upon the terms and conditions hereinafter set forth:
(a) (i) Certain premises located in the Tredyffrin Township, County of
Chester, State of Pennsylvania, commonly known as One, Two, Three and Five
Westlakes, Westlakes Office Park, as more particularly described in Exhibit A
attached hereto and incorporated herein by reference, together with all right,
title and interest of Seller in and
- 1 -
<PAGE>
to any land lying in the bed of any street (opened or proposed) adjacent to or
abutting or adjoining such premises, together with all rights, privileges,
rights of way and easements appurtenant to such premises, including, without
limitation, all minerals, oil or gas on or under such premises, development
rights, air rights, water rights, sewer rights and any easements, rights of way
or other interests in, on, or under any land, highway, alley, street or right of
way abutting or adjoining such premises (all of the foregoing, the "Real
Property"), (ii) all buildings and other improvements located thereon (the
"Improvements", and, together with the Real Property, the "Premises"), and (iii)
all items of personal property, fixtures, equipment and inventory owned by
Seller and located on the Premises or used exclusively in connection with the
ownership or operation of the Premises, described in Exhibit B attached hereto
and incorporated herein by reference excluding, however, those items of personal
property, fixtures, equipment and inventory specifically listed on Exhibit B as
being excluded, and otherwise including, without implied limitation, whether or
not listed on Exhibit B, and if and to the extent located in or on the Premises,
all furniture, fixtures, equipment, machines, apparatus, appliances, supplies
and personal property of every nature and description and all replacements
thereof (collectively, the "Personal Property"). All items referred to in
clauses (i), (ii) and (iii) are herein sometimes collectively referred to as the
"Property"; and
(b) (i) all leases and other contracts with respect to the use and
occupancy of the Premises, together with all amendments and modifications
thereto and any guaranties provided thereunder (individually, a "Lease", and
collectively, the "Leases"), the amount deposited (the "Security Deposit") under
any Lease in the nature of security for the performance of the obligations of
the tenant or user (individually a "Tenant", and collectively, the "Tenants")
under the leases and rents, additional rents, reimbursements, profits, income,
receipts payable after the Closing Date, hereinafter defined;
(ii) all trademarks and tradenames used in connection with the
Premises, including without limitation the name "Westlakes", "Westlakes Office
Park" and any other name by which the Premises is commonly known, and all
goodwill, if any, related
- 2 -
<PAGE>
to said names, all for which Buyer shall have the sole and exclusive rights
after the Closing hereinafter defined occurs (collectively, the "Tradenames");
(iii) all permits, licenses, guaranties, approvals, certificates and
warranties relating to the Premises and the Personal Property (collectively, the
"Permits and Licenses"), all of Seller's right, title and interest in and to
those contracts and contracts for the servicing, maintenance and operating of
the Premises ("Service Contracts") and telephone numbers in use at any of the
Premises (together with the Permits and Licenses and the Service Contracts, the
"Intangible Property");
(iv) copies of all books, records, promotional material, tenant
data, leasing material and forms, past and current rent rolls, files,
statements, market studies, keys, plans, specifications, reports, tests and
other materials of any kind owned by or in the possession of Seller which are or
may be used by Seller in the use and operation of the Premises or Personal
Property (collectively, the "Books and Records"), Buyer agreeing that Seller may
retain copies, or originals of the same; and
(v) all other rights, privileges and appurtenances owned by Seller,
if any, and in any way related to the rights and interests described above in
this Section.
ARTICLE 2. Sale Subject to Leases: Subject to the provisions of Article
4 hereof, the Premises will be conveyed subject to certain leases (hereinafter
called the "Leases") described in Exhibit C attached hereto and incorporated
herein by reference, or as hereafter added pursuant to the provisions of Article
11 hereof.
ARTICLE 3. Purchase Price and Payment: (a) The total purchase price
(the "Purchase Price") for the Property is SEVENTY-TWO MILLION FIVE HUNDRED
THOUSAND and 00/100 Dollars ($72,500,000.00) which shall be payable at the
Closing, as hereinafter defined, in lawful currency of the United States of
America in immediately available funds by wire transfer to an account designated
by Seller in writing.
- 3 -
<PAGE>
(b) As security for Buyer's performance hereunder, a deposit of FIVE
HUNDRED THOUSAND and 00/100 Dollars ($500,000.00) is being paid by Buyer
simultaneous with the execution of this Contract to Commonwealth Land Title
Insurance Company (the "Escrow Agent") which shall maintain it in a federally
insured interest-bearing money market account and disburse it according to the
terms of this Contract. The amount deposited with Escrow Agent, together with
all interest earned thereon, is hereinafter referred to as the "Deposit". The
Deposit (including any interest thereon) shall be applied in reduction of the
Purchase Price payable at the Closing. Escrow Agent's duties and
responsibilities are governed by the terms of Article 23 hereof.
(c) The payment required at the Closing shall be increased or
decreased, as the case may be, to account for all items to be apportioned or
prorated pursuant to this Contract.
ARTICLE 4. Form of Conveyance: (a) Subject to the provisions of ARTICLE
27, the Premises shall be conveyed in fee simple absolute, subject, however to
those matters set forth on Exhibit A, by a good and sufficient special warranty
deed (the "Deed") in substantially the form attached hereto as Exhibit D,
running to Buyer or, subject to the provisions of Article 17 hereof, to such
assignee (to the extent permitted by Article 17(b) herein) as Buyer designates
by written notice to Seller at least three (3) business days prior to the
Closing. The Deed shall be in proper form for recording and shall be duly
executed, acknowledged and delivered by Seller at the Closing.
(b) Delivery of the Deed hereunder shall, for all purposes, constitute
and be deemed to be a transfer of all items of the Personal Property, Intangible
Property and Books and Records without the necessity of any further act,
agreement, instrument of assignment or transfer or otherwise.
ARTICLE 5. Closing: (a) The closing of the transactions contemplated
hereunder (the "Closing") shall take place at 10:00 o'clock a.m. on April 29,
1997, (the
- 4 -
<PAGE>
"Closing Date") at the offices of Seller at the Property or at such other
location in Pennsylvania as the parties shall designate in writing at least five
(5) business days prior to the Closing Date. Either party, by notice to the
other sent prior to the Closing Date may extend the Closing Date, to a date up
to, but not beyond, May 9, 1997, after which, time is of the essence of this
Contract.
(b) At the Closing, Seller shall deliver the following documents in the
forms attached hereto or otherwise, reasonably satisfactory in form and
substance to Seller and Buyer and their respective counsel, properly executed
and acknowledged as required:
(i) The Deed;
(ii) Intentionally Omitted;
(iii) An original of an Assignment and Assumption Agreement
relating to the Leases and Security Deposits
(hereinafter defined) in the form attached hereto as
Exhibit F (the "Lease Assignment");
(iv) Originals of all Leases, any renewals thereof, all
amendments thereto and all guarantees thereof, to the
extent in Seller's possession or control, or
otherwise if Seller, using good faith efforts to
locate the same, is unable to deliver originals of
the same, copies of such Leases and other documents
certified by Seller to be true, complete and correct
will be delivered at the site;
(v) An original of an Assignment and Assumption Agreement
in the form attached hereto as Exhibit G relating to
those Operating Contracts (as hereinafter defined)
which Buyer elects to assume in accordance with the
provisions of Article 10
- 5 -
<PAGE>
(vii) hereof (the "Contract Assignment") and
originals of those Operating Contracts so assigned;
(vi) Originals or copies of all certificates of occupancy
in Seller's possession or control for all of the
Improvements which form a part of the Property and
all tenant-occupied space included within such
buildings;
(vii) To the extent in Seller's possession or control,
originals or copies of (a) all warranties,
guarantees, operating manuals and as-built plans and
specifications for the Improvements, if any, with
respect to the Property or Leases and (b) all land
use, environmental, traffic and building permits,
licenses, variances and the like;
(viii) A certification of non-foreign status in the form
attached hereto as Exhibit H;
(ix) Evidence satisfactory to Buyer and Buyer's title
insurance company (the "Title Company") that all
necessary approvals and/or consents by the general
partner of Seller and its directors have been
delivered and such other evidence satisfactory to the
Title Company of Seller's authority and the authority
of the signatory on behalf of Seller to convey the
Property pursuant to this Contract;
(x) All Security Deposits (as hereinafter defined),
together with accrued interest thereon;
- 6 -
<PAGE>
(xi) Affidavits sufficient for the Title Company to delete
any exceptions for parties in possession (other than
tenants under the Leases, as tenants only) and
mechanics' or materialmen's liens from an owner's
title insurance policy for the Premises (the "Title
Insurance");
(xii) A Rent Roll certified by Seller as of the Closing
Date;
(xiii) If requested by Escrow Agent, an authorization to
Escrow Agent to release the Deposit to Buyer;
(xiv) An original of a closing statement setting forth the
Purchase Price, the closing adjustments and
prorations and the application thereof at the Closing
(the "Closing Statement");
(xv) Original tenant notification letters for each tenant
under a Lease in a form to be drafted by Buyer and
satisfactory to Seller and original notification
letters to all parties to Operating Contracts and
other contracts to be assumed by Buyer, if any;
(xvi) An original 1099-B Certification;
(xviii) Evidence of payment to the Broker, hereinafter
defined;
(xix) If and to the extent applicable pursuant to the
appropriate provisions of ARTICLE 9 hereof, all
instruments as shall be reasonably required for the
conveyance to Buyer of all
- 7 -
<PAGE>
right, title and interest, if any, of Seller in and
to any award or payment made, or to be made, (i) for
any taking in condemnation, eminent domain or
contract in lieu thereof of land adjoining all or any
part of the Improvements, (ii) for damage to the
Premises or any part thereof by reason of change of
grade or closing of any such street, road, highway or
avenue, and (iii) for any taking in condemnation or
eminent domain of the Premises;
(xx) Any instruments reasonably required by Buyer
evidencing the assignment of Tradenames;
(xxi) All other original documents or instruments referred
to herein, including without limitation the Service
Contracts, Licenses and Permits and Books and
Records, or copies of the same certified by Seller to
be true, correct and complete where Seller, using its
reasonable efforts, is unable to deliver originals;
(xxii) Such transfer tax, gains or other similar forms
required by law;
(xxiii) Such other documents as may be reasonably required or
appropriate to effectuate the consummation of the
transaction contemplated by this Contract; and
(xxiv) A certificate of the Seller to the effect that all of
the warranties and representations made by Seller
herein are true and correct in all material respects
as of the Closing Date.
- 8 -
<PAGE>
(c) At the Closing, Buyer shall deliver, or cause to be delivered, the
following payment and documents, reasonably satisfactory in form and substance
to Seller and Seller's counsel properly executed and acknowledged as required:
(i) The Purchase Price as adjusted;
(ii) An original of the Lease Assignment;
(iii) An original of the Contract Assignment;
(iv) An original of the Closing Statement;
(v) Such transfer tax, gains or other similar forms
required by law; and
(vi) Such other documents as may be reasonably required or
appropriate to effectuate the consummation of the
transaction contemplated by this Contract.
(d) The Closing shall not be deemed to be completed until all documents
and payments as aforesaid have been properly delivered (and recorded where
appropriate) to the satisfaction of all parties.
(e) It shall be a condition precedent to the Buyer's obligation to
proceed with the Closing that the Buyer shall have received confirmation
(individually a "Confirmation" and collectively "Confirmations") of the original
estoppel certificates previously delivered by Seller to Buyer in the form of
Exhibit K annexed hereto and hereby made a part hereof and without any material
qualification from each and every tenant under a Lease or Leases of space
aggregating at least 12,000 square feet of floor space (a "Major Lease"), at
least three (3) of the four (4) tenants of the Property under a
- 9 -
<PAGE>
Lease or Leases of space aggregating at least 8,000 square feet of floor space
but not more than 11, 999 square feet of floor space (a "Minor Lease") and
tenants leasing at least 50% of the occupied rentable area of the Premises that
is not the subject of a Major Lease or a Minor Lease. In the event that such
condition shall not have been fulfilled at the Closing, Buyer shall have the
right as its sole remedy to cancel and terminate this Contract by written notice
delivered to Seller at the Closing, in which event the parties shall direct the
Escrow Agent to return the Deposit to Buyer and the obligations of the parties
under this Contract shall terminate except for Buyer's Surviving Obligation,
hereinafter defined. Seller shall use good faith efforts to obtain as many
Confirmations as possible notwithstanding the requirements of this subsection
(e).
(f) The acceptance of the Deed by the recordation thereof shall be
deemed to be full performance and discharge of every agreement and obligation
herein contained or expressed except such as are, by the terms hereof, to
survive the Closing.
ARTICLE 6. Approvals and Conditions to Buyer's Obligations:
(a) Seller acknowledges the Buyer intends to conduct an investigation
of the Property, which may include examination of all structural and mechanical
aspects thereof, review of any and all documentation with respect to the
Property including without limitation its income and expenses, Leases and tenant
files, records of repairs and capital improvements, examination of the title to
the Property, inspecting the Property, conducting tests at the Property,
including, without limitation, soil sampling, boring and investigation, ground
water investigation and engineering studies (all in accordance with the
provisions of this Contract) to determine the presence or absence Contaminants,
hereinafter defined, obtaining a current as-built survey thereof, and
determining the compliance of the Property with all applicable laws, (including,
without limitation, the laws ("environmental laws") referred to below in the
definition of "Contaminants"), rules, codes and regulations.
- 10 -
<PAGE>
The term "Contaminants" shall mean any regulated substance, toxic
substance, hazardous substance, hazardous waste, pollution, pollutant or
contaminant, as defined or referred to in the Clean Streams Law, 35 Pa. Cons.
Stat. Ann. ss.691.1 et. seq., Solid Waste Management Act, 35 Pa. Cons. Stat.
Ann. ss.6018.101 et. seq., Pennsylvania Storage Tank and Spill Prevention Act,
35 Pa. Cons. Stat. ss.6020.101 et. seq. (1988), and the Pennsylvania Underground
Storage Act, 58 Pa. Cons. Stat. ss.451 et. seq. (1978), the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et. seq., the
Comprehensive Environmental Response Compensation and Liability Act, as amended,
42 U.S.C. (9601 et. seq. "CERCLA") or the Water Pollution and Control Act, 33
U.S.C. ss.1251 et. seq., together with any amendments thereto, regulations
promulgated thereunder and all substitutions thereof, including, without
limitation, asbestos, polychlorinated biphenyls, urea formaldehyde, radon and
petroleum products and petroleum based derivatives; provided, however, that
where a statute, ordinance, code, rule, regulation, order, directive or
requirement defines any of these terms more broadly than another, the broader
definition shall apply.
Notwithstanding anything to the contrary contained in this Contract,
Seller acknowledges the Buyer shall have the right in its sole and absolute
discretion, upon its disapproval of any of the information it receives, to
terminate this Contract. In the event Buyer fails notify Seller that it intends
to terminate the Contract by written notice on or before April 14, 1997, Buyer
shall be deemed to have terminated this Contract. If Buyer notifies Seller in
writing of its election to terminate this Contract by April 14, 1997, this
Contract shall be terminated. In the event this Contract is deemed to have
terminated as aforesaid or is terminated by Buyer as aforesaid, the Deposit
shall be returned to Buyer forthwith. In such case, upon the return of the
Deposit to Buyer all obligations of the parties hereto shall cease and this
Contract shall be terminated and the parties shall be without further recourse
or remedy hereunder other than Buyer's indemnity to Seller set forth in Article
6(b) below (the "Surviving Obligation").
(b) Seller shall make the Property available to Buyer and its agents,
consultants and engineers for such inspections and tests as Buyer deems
appropriate,
- 11 -
<PAGE>
including for Buyer's engineering inspection(s), Contaminants inspections, site
evaluations, and such other inspections and tests as Buyer deems appropriate. In
addition, Seller will deliver to Buyer, promptly after request, true and
complete copies of all test borings, environmental reports, surveys, title
materials and engineering and architectural data and the like relating to the
Premises that are in Seller's possession or under its control. In the event any
additional materials or information concerning the same come within Seller's
possession or control after the date of this Contract, Seller shall promptly
submit true and complete copies of such additional materials or information to
Buyer. Buyer hereby agrees to indemnify and hold Seller harmless from and
against any and all loss, cost or damage to the Property arising out of actions
taken by Buyer or its agents, engineers or consultants. Buyer shall provide or
shall cause its consultants to provide Seller with evidence of $5,000,000
liability insurance (which insurance may take the form of primary and so-called
umbrella insurance, if Buyer so elects) naming Seller as an additional insured
prior to entering the Property. Buyer shall give Seller at least three (3)
business days prior notice of any visits or tests describing who will visit and
the nature of the visit or tests. Seller shall be entitled to have a
representative present during any visits or tests. Buyer shall not interview or
meet with tenants of the Property or any of Seller's vendors with respect to the
Property without in each instance receiving Seller's prior written consent
thereto which may be granted or withheld in Seller's sole and absolute
discretion. No invasive tests shall be conducted without written consent which
may be granted or withheld in Seller's sole discretion, and all investigations
shall be subject to the rights of tenants and their employees, agents and
invitees and shall be done in a manner which minimizes disruption to tenants and
their employees, agents and invitees.
(c) Except as set forth in this Agreement, the Property is being
acquired by Buyer in an "AS IS" condition and "WITH ALL FAULTS" existing as of
the Closing Date. Except as expressly set forth in this Agreement, no
representations or warranties have been made or are made and no responsibility
has been or is assumed by Seller or by any officer, person, firm, agent or
representative acting or purporting to act on behalf of
- 12 -
<PAGE>
the Seller as to condition or repair of the Property or the value, expense of
operation, or income potential thereof or as to any other fact or condition
which has or might affect the Property or the condition, repair, value, expense
of operation or income potential of the Property or any portion thereof. Except
with respect to (i) a breach by Seller of any representation or warranty
expressly contained herein and the remedies therefor specifically provided
herein and (ii) any matter for which Seller may be liable under any applicable
law governing the use, storage, transmittal or release of asbestos or hazardous
materials or substances in or on, or radon in or the environmental conditions
of, the Property commenced against Buyer after the Closing for any incident
which occurred prior to the Closing if such incident, or the results or effects
thereof, is or are not revealed in the Environmental Reports, hereinafter
defined, or in any and all environmental reports prepared by or for Buyer in
connection with its performance of its investigations hereunder (Buyer agreeing
with Seller that, in that connection, Buyer shall either cause to be prepared
and delivered to it at least a so-called "Phase I" investigation and report of
such conditions at the Property by Environmental Waste Management Associates,
Inc. or arrange to have the Phase I environmental report furnished to Buyer by
Seller certified directly to Buyer by the preparer thereof), Buyer hereby
releases Seller and any affiliate of Seller from any and all liability in
connection with any claims which Buyer may have against Seller or such
affiliates, and Buyer hereby agrees not to assert any claim for contribution,
cost, recovery or otherwise against Seller or any such affiliate relating
directly or indirectly to the existence of asbestos or hazardous materials or
hazardous substances in or on, radon in or environmental conditions of, the
Property, whether known or unknown. The parties agree that all understandings
and agreements heretofore made between them or their respective agents or
representatives are merged in this Agreement and the Exhibits hereto annexed,
which alone fully and completely express their agreement, and that this
Agreement has been entered into after full investigation, or with the parties
satisfied with the opportunity afforded for investigation, neither party relying
upon any statement or representation by the other unless such statement or
representation is specifically embodied in this Agreement or the Exhibits
annexed hereto. Buyer acknowledges that Seller has allowed Buyer to inspect the
Property fully and
- 13 -
<PAGE>
investigate all matters relevant thereto and that, although Seller has provided
the Environmental Reports to Buyer, Buyer is not relying on and shall not rely
on the same, and, except with respect to information provided by Seller to Buyer
and Seller's warranties and representations contained in this Agreement, has
required Buyer to rely solely upon the results of Buyer's own inspections or
other information obtained or otherwise available to Buyer, provided that the
foregoing shall not diminish the rights provided to Buyer in this Agreement with
respect to any representations or warranties expressly made by Seller in this
Agreement.
ARTICLE 7. Default: (a) In the event Seller fails to convey title in
accordance herewith, as its sole remedy Buyer shall have any one of the
following rights and remedies:
(i) Buyer shall have the right to terminate this Contract
by notice to Seller, in which event the Deposit
together with interest thereon shall be paid to
Buyer, and all obligations of the parties under this
Contract shall terminate except for Buyer's Surviving
Obligation;
(ii) Buyer shall have the right to waive the breach or
default and proceed to Closing in accordance with the
provisions of this Contract without adjustment of the
Purchase Price;
(iii) Buyer may seek specific performance and in that
connection petition the court for the payment of its
costs, including, without limitation, the reasonable
attorneys' fees incurred in seeking such relief; or
(iv) Buyer shall have the right to sue Seller for damages
(which may include, without limitation, costs,
including, without
- 14 -
<PAGE>
limitation, reasonable attorneys' fees, incurred in
bring such suit) if and only if Seller shall sell the
Property in violation of the provisions of this
Agreement.
(b) In the event of a default by Buyer hereunder, the Deposit shall be
retained by Seller as liquidated and exclusive damages, and Seller shall have no
further recourse or remedy at law or in equity other than with respect to the
Surviving Obligation.
ARTICLE 8. Entire Agreement Herein: The parties understand and agree
that their entire agreement is contained herein and that no warranties,
guarantees, statements, or representations shall be valid or binding on a party
unless set forth in this Contract. It is further understood and agreed that all
prior understandings and agreements heretofore had between the parties are
merged in this Contract which alone fully and completely expresses their
agreement and that the same is entered into after full investigation, neither
party relying on any statement or representation not embodied in this Contract.
This Contract may be changed, modified, altered or terminated only by a written
agreement signed by the parties hereto.
ARTICLE 9. Damage or Destruction: Condemnation: (a) The risk of loss,
damage or destruction to the Property by fire or other casualty or the taking of
all or part of the Property by condemnation or eminent domain or by an agreement
in lieu thereof until the Closing is assumed by Seller.
(b) In the event of partial damage or destruction of the Property (i)
of a type which can, under the circumstances, in Seller's reasonable
determination, be expected to be restored or repaired at a cost of the lesser of
$1,000,000.00 or less in the aggregate or $250,000.00 or less for each of the
buildings that are a part of the Property (a "Building"), and (ii) which does
not result in the termination of a Major Lease, then, this Contract shall be
consummated on the Closing Date at the Purchase Price and, unless such damage
has been repaired by Seller to a condition not materially different from its
- 15 -
<PAGE>
condition immediately prior to the occurrence of the event causing such damage
or destruction prior to Closing, Seller shall assign to Buyer the physical
damage proceeds of any insurance policies payable to Seller allocable to such
partial damage or destruction with a credit to Buyer of the amount of any
deductible, less, however, any sum or sums reasonably expended by Seller for
partial restoration or making the Property safe.
(c) In the event that the Property shall have been damaged by fire or
casualty, the cost of repair or restoration of which would, in Seller's
reasonable determination, exceed the lesser of the sum of $1,000,000.00 in the
aggregate or $250,000.00 per each Building or as a result of which a Major Lease
shall be terminated, then at Buyer's election, Seller shall, unless Seller has
previously repaired or restored the Property to their former condition, either
(i) pay over or assign to Buyer on delivery of the Deed all amounts recovered or
recoverable on account of any insurance plus any so-called deductible allocable
thereto, less any amounts reasonably expended by Seller for partial restoration
or making the Property safe, in which event the Closing shall take place as in
this Contract provided, or (ii) direct the Escrow Agent to return the Deposit to
Buyer in which case all other obligations of the parties hereto shall cease and
this Contract shall be void and without recourse to the parties hereto. Buyer
shall exercise said election not more than ten (10) days following its receipt
of notice of such fire or casualty, by written notice sent to Seller. The
failure of Buyer to exercise such election as aforesaid within the aforesaid ten
(10) day period shall be and be deemed to be, for all purposes hereunder, an
election by Buyer to terminate this Contract in accordance with the provisions
of clause (ii) of this subsection (c).
(d) If any building on the Premises or any part of the Premises other
than a de minimus portion thereof is taken by condemnation, eminent domain or by
agreement in lieu thereof, or any proceeding to acquire, take or condemn all or
a substantial part of the Property is commenced, Buyer may elect either to (i)
terminate this Contract (in which event Buyer shall be entitled to a return of
the Deposit) or (ii) proceed with the Closing in
- 16 -
<PAGE>
accordance with the terms hereof, without reduction in the Purchase Price, in
which event, at the Closing Seller shall assign to Buyer Seller's rights to any
award paid or payable by or on behalf of the condemning authority. If Seller has
received payments from the condemning authority and if Buyer elects to close
title to the Property, Seller shall credit the amount of said payment against
the Purchase Price at the Closing. Buyer shall exercise said election not more
than ten (10) days following notice from Seller of such confirmation such
condemnation or commencement of such proceeding, as applicable, by written
notice sent to Seller. The failure of Buyer to send such notice within the
aforesaid ten (10) day period shall be and be deemed to be, for all purposes
hereunder, an election by Buyer to proceed in accordance with the provisions of
clause (ii) of this subsection (d). Notwithstanding anything to the contrary
contained herein, Buyer shall be entitled to any and all proceeds awarded on
account of a right of way previously owned by the Chester Valley Railroad
provided that, out of such proceeds, Buyer shall pay Seller Seller's reasonable
costs in pursuing such award prior to the Closing, Seller agreeing to submit a
statement of such costs to Buyer without a reasonable time after the Closing.
The provisions of the preceding sentence shall survive the Closing.
(e) Seller shall immediately notify Buyer of any damage or destruction
to the Property or any notice received by it regarding the commencement of
condemnation or similar proceedings. Further, if either of the events described
in subsections (c) or (d) of this Article 9 shall have occurred less than ten
(10) days prior to the Closing Date, the Closing Date shall be extended for the
number of days necessary (plus any additional day or days necessary to reach the
next business day of the Office of the Recorder of Deeds in and for the County
of Chester, Pennsylvania) to provide the appropriate ten (10) day notice period
within which Buyer shall have the right to make the election described in the
applicable section.
ARTICLE 10. Representations and Warranties of Seller: (a) In order to
induce Buyer to enter into this Contract and to consummate the purchase of the
Property, Seller
- 17 -
<PAGE>
hereby represents and warrants to Buyer as of the date of this Contract and as
of the Closing Date as follows:
(i) Seller is, and on the Closing Date shall be, a
limited partnership duly and validly organized and
existing and governed by the laws of the State of
Delaware and registered to do business in the
Commonwealth of Pennsylvania. Seller's general
partner is, and on the Closing Date shall be, a
corporation duly and validly organized and existing
and governed by the laws of the State of Maryland.
This Contract and all documents that are to be
executed by Seller and delivered to Buyer at the
Closing are, or at the time of Closing will be, duly
authorized, executed and delivered by Seller, and all
consents required under Seller's organizational
documents or by law have been obtained. The
performance by Seller of its duties and obligations
under this Contract and the documents and instruments
to be executed and delivered by it hereunder will not
conflict with, or result in a breach of, or default
under, any provision of the organizational documents
of Seller or any contracts, instruments, decrees,
judgments, injunctions, orders, writs, laws, rules or
regulations, or any determination or award of any
court or arbitrator, to which Seller is a party or by
which its assets may be bound.
(ii) Exhibit C attached hereto, which includes a rent
roll, aged delinquency report and Security Deposit
report (together, the "Rent Roll"), is a true,
complete and correct listing of all Leases in effect
as of a date not earlier than the last day of the
month preceding the date of this Contract at the
Property (the standard form of which Leases(s) are
attached hereto as Exhibit C-1 hereto). The Rent Roll
sets forth: (a) the total number of
- 18 -
<PAGE>
Leases at the Property, (b) the name of each existing
tenant, (c) the space designation, (d) all arrearages
owing from said tenant, (e) the expiration date or
status of the term of the Lease (including all rights
or options to renew), (f) the current rent and other
payments actually being collected and which the
tenant is obligated to make under the Lease, (g) the
current outstanding balance of all Security Deposits
and (h) base year amounts for all items of rent or
additional rent billed to each Tenant on that basis.
Except as set forth in the Rent Roll, no tenant of
any portion of the Property (a) is in default in any
monetary obligation under its Lease or (b) is
entitled now or in the future to any concession,
rebate, offset, allowance or free rent for any
period.
(iii) Seller have previously delivered to Buyer true and
complete copies of the Leases, and all extensions,
renewals and amendments thereto in Seller's
possession. The Leases are in full force and effect
and Seller is not in default thereunder. No brokerage
commission or compensation is payable in respect of
the Leases except as set forth on Exhibit M.
(iv) Except as set forth in the Rent Roll, the rents set
forth in the Leases are being collected on a current
basis and no tenant has paid rent more than one (1)
month in advance.
(v) No renewals or extension or expansion options have
been granted to any tenant except as set forth in the
Leases.
(vi) Except as set forth in Exhibit L attached hereto and
hereby made a part hereof: (i) Seller has not
received any notice from any tenant under any of the
Leases claiming that Seller is in
- 19 -
<PAGE>
default of its obligations under any of the Leases
which claimed default has not been cured or waived;
and (ii) Seller has not sent any notices of default
to any Tenant, nor, to Seller's knowledge, would any
Tenant be in default under its Lease, but for the
passage of time, the giving of notice or both.
(vii) Exhibit I attached hereto is a complete list of all
management, service, supply and maintenance
agreements, equipment leases, and all other contracts
and agreements with respect to or affecting the
Property as of the date of this Contract (herein
collectively referred to as the "Operating
Contracts"), setting forth, with respect to each of
the Operating Contracts, (a) the names of the
providers thereunder; (b) the service provided
thereunder or subject matter thereof; (c) the monthly
payment or other rate of payment payable thereunder
as of the date of this Contract and (d) the
expiration date thereunder. By not later than April
14, 1997, the Buyer shall inform the Seller which of
the Operating Contracts, if any, Buyer wishes to
assume (to the extent the same are assumable).
Thereafter, Seller shall send written notice to
vendors under all Operating Contracts which Buyer has
not elected to assume terminating such Operating
Contracts effective as of the Closing Date or such
later date as is required by such Operating Contract.
Failure of Buyer to send such notice to Seller by at
least April 14, 1997 shall be and be deemed to be an
election by Buyer to assume each and all of the
Operating Contracts.
(viii) To the best of Seller's knowledge, Seller has
furnished to Buyer or made available to Buyer for its
review all written reports, studies and notices from
governmental authorities
- 20 -
<PAGE>
having jurisdiction over the Property issued to
Seller and in Seller's possession related to, and all
other written notices in Seller's possession advising
Seller of, the presence or release, now or in the
past, on, under or affecting the Property of asbestos
or hazardous material, waste or substances
(collectively, the "Environmental Reports"). Except
as set forth in the Environmental Reports, Seller has
no actual knowledge of the presence on the Property
of any Contaminants unless the presence of the same
is in compliance with all applicable laws; petroleum
and its refined products; polychlorinated biphenyls;
and asbestos.
(ix) Except as set forth in Exhibit J hereto, there is not
now pending nor, to the Seller's best knowledge, has
there been threatened in writing, any action, suit or
proceeding against or affecting Seller or the
Property before or by any federal or state court,
commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding, upon
consummation of the sale contemplated hereby to Buyer
or otherwise, may reasonably be expected to have a
material adverse effect on the business or prospects
of or on the condition or operations of the Property,
or would interfere in any material way with Seller's
ability to consummate the transactions by this
Contract.
(x) To the best of Seller's knowledge, Seller has not
received from any public body or official any written
notice of any violation of any applicable law, code,
rule or regulation affecting the Property, including,
without limitation, environmental laws.
- 21 -
<PAGE>
(xi) Seller is not a "foreign person" as defined by the
Internal Revenue Code ("IRC"), Section 1445. Seller
will execute and deliver to Buyer at Closing an
affidavit or certification in compliance with IRC
Section 1445.
(xii) There is no union contract or collective bargaining
agreement in force which affects the Property.
(xiii) Seller has received no written notice and has no
knowledge of (i) any pending or contemplated
annexation or condemnation proceedings, or private
purchase in lieu thereof, affecting or which may
affect the Property, or any part thereof, (ii) any
proposed or pending proceeding to change or redefine
the zoning classification of all or any part of the
Property, (iii) any proposed or pending special
assessments affecting the Property or any portion
thereof, (iv) any penalties or interest due with
respect to real estate taxes assessed against the
Property and (v) any proposed change(s) in any road
or grades with respect to the roads providing a means
of ingress and egress to the Property. Seller agrees
to furnish Buyer with a copy of any such notice
received within two (2) days after receipt.
(xiv) Seller has paid all Taxes due and payable as of the
date hereof and filed as of the date hereof all
returns and reports required to be filed with respect
to the ownership and operating of the Property which
Seller has been obligated by law to pay and/or file.
Except as set forth in this Section, there are no
audits or other proceedings by any governmental
authorities pending or, to the knowledge of Seller,
threatened against Seller for or on account of the
Property. Seller is not party to any indemnification,
allocation
- 22 -
<PAGE>
or sharing Contract with respect to Taxes. "Taxes"
mean all federal, state, country, local, foreign and
other taxes of any kind whatsoever (including,
without limitation, income, profits, premium,
estimated, excise, sales, use, occupancy, gross
receipts, franchise, ad valorem, severance, capital
levy, production, transfer, license, stamp,
environmental, withholding, employment, unemployment
compensation, payroll related and property taxes,
import duties and other governmental charges or
assessments), whether or not measured in whole or in
part by net income, and including deficiencies,
interest, additions to tax or interest, and penalties
with respect thereto, and including expenses
associated with contesting any proposed adjustment
related to any of the foregoing.
(b) With respect to any representations and warranties made to the best
of Seller's knowledge, such knowledge shall be deemed to be the knowledge of
Jennifer Britt Starbuck, Seller's regional representative who is the
representative of Seller most likely to have knowledge of the Property. In
addition, Seller shall not be liable to Buyer for any representation or warranty
which is untrue at the time of Closing and with respect to which Buyer had
actual knowledge thereof at that time. Furthermore, any claim for a breach of
representation and warranty by Seller must be commenced within nine (9) months
after Closing. All claims against Seller (except for any claim made pursuant to
the provisions of Sections 6(c)(ii), 7(a)(iii) or 7(a)(iv) hereof or the last
paragraph of Section 12(a) hereof or any indemnification given by Seller to
Buyer under or pursuant to the Lease Assignment, for all of which there shall be
no limit of liability) shall be limited to $1,000,000.00 in the aggregate which
sum shall be Seller's sole liability.
ARTICLE 11. Operations: (a) Between the date hereof and the Closing,
Seller agrees hereby that it will maintain the Property in its customary manner
and will not refrain from taking any action or spending any funds, or otherwise
manage the Property
- 23 -
<PAGE>
differently, due to the pending sale of the Property. Seller shall use
reasonable efforts to preserve for Buyer all of Seller's relationships with
respect to the Property. Until the Closing Date, Seller shall maintain insurance
on the Premises as currently insured.
(b) Seller shall not remove any material item of the Personal Property
from the Property unless the same is obsolete and is replaced by tangible
personal property of equal or greater utility.
(c) Seller shall not enter into any new Lease or any extension,
amendment or modification to any Lease except as may be required pursuant to
such Lease (any of the foregoing, a "New Lease") of the Property or any portion
thereof, or any construction contract for the construction of tenant
improvements in connection with any proposed Lease, except in compliance with
the provisions of this Section 11(c). A copy of each New Lease proposed to be
entered into by Seller after the date hereof will be submitted to Buyer for its
approval prior to execution by Seller, together with a reasonably detailed
budget setting forth the Leasing Costs (hereinafter defined) to be incurred in
connection with such New Lease and a copy of any proposed construction contract
for the construction of tenant improvements in connection with such proposed New
lease. Buyer shall notify Seller within five (5) days after its receipt of each
proposed New Lease, budget and construction contract, if applicable, of its
approval or disapproval thereof, which approval shall not be unreasonably
withheld or delayed. If the Buyer informs the Seller of Buyer's disapproval of
any such New Lease, budget or construction contract, Buyer shall not enter into
such New Lease. If Buyer fails so to notify Seller of its approval or
disapproval of any such proposed New Lease, budget or construction contract
within the time or in the manner set forth above, such failure shall be and be
deemed to be, for all purposes hereunder, approval by Buyer of such New Lease,
budget and construction contract. Upon the approval or deemed approval of any
such construction contract, if the work under such construction contract is not
complete as of the Closing Date, such contract shall be treated for all purposes
as an Operating Contract which Buyer has elected to assume pursuant to the
provisions of Section 10(a)(vii). If Buyer approves
- 24 -
<PAGE>
or is deemed to have approved of any New Lease, Leasing Costs incurred by Seller
in connection therewith in an amount not to exceed the amount of such Lease
Costs approved or deemed approved by Buyer as provided herein shall, when the
Closing shall occur, be and become the obligation of Buyer, and, to the extent
that Seller has therefor expended any sums for any of the foregoing, Buyer shall
reimburse Seller at the Closing for the amount of any such sums expended. For
the purposes hereof, (i) the phrase "Leasing Costs" shall mean or be deemed to
mean all costs and expenses incurred by Seller in connection with such New Lease
including, without limitation, legal expenses, space planning and architectural
fees, tenant improvement costs, moving allowances and leasing and brokerage
commissions and (ii) Buyer shall not be deemed to be unreasonable in withholding
its consent if the aggregate of all Leasing Costs with respect to any New Lease
other than tenant improvement costs, moving allowances and leasing and brokerage
commissions exceeds the product of one dollar ($1.00) multiplied by the number
of square feet of floor area in the premises that are the subject of the New
Lease.
(d) Seller shall not, without the prior written consent of Buyer, which
consent shall not be unreasonably withheld or delayed, enter into any service or
maintenance contract which could bind Buyer or the Property after the Closing
unless the same, by its terms, may be canceled on thirty (30) days notice
without payment of a penalty or fee.
(e) Seller shall promptly notify Buyer of any casualty or proceedings
to commence a condemnation or any violation of law including, without
limitation, environmental laws, or insurance policy of which it shall have
received notice.
(f) Seller, upon receipt of notice thereof, will give Buyer prompt
notice of the commencement prior to Closing of any litigation affecting the
Property or any part thereof in any material adverse way or impairing Seller's
right to sell the Property; and in the event of any such litigation, Seller may
in its discretion adjourn the Closing for a period of up to ninety (90) days in
order to cause such litigation to be discharged or, in the case of litigation
materially adversely affecting title to the Property only, insure that
- 25 -
<PAGE>
title to the Property shall not be affected by any judgment in such lawsuit in a
manner which shall be sufficient to permit the Title Company, hereinafter
defined, to issue a title insurance policy to Buyer for the Property in the form
required by ARTICLE 27 without exception for such litigation and, promptly upon
completion of the same, Seller shall notify Buyer and the Closing shall take
place on the later of the tenth (10th) day after the date the date of such
notice or the next regular business day of Chester County, Pennsylvania Records
following such tenth (10th) day, as though such date were the Closing Date;
provided, however, that if Seller shall fail to cause such discharge or take the
actions necessary to permit title insurance to be issued as aforesaid within the
aforesaid ninety (90) day period, Buyer shall elect within ten (10) days
following the end of such ninety (90) day period, by notice to Seller either (i)
to terminate this Contract by notice given to Seller, in which event the
provisions of ARTICLE 6 relative to the effect of the termination of this
Contract and the return of the Deposit shall apply, or (ii) to accept title
subject to such litigation and receive no credit against or reduction of the
Purchase Price in which case the Closing shall occur on the fifth (5th) business
day following Seller's receipt of such notice. The failure of Buyer to send
Seller such notice within such ten (10) day period shall be and be deemed to be,
for all purposes hereunder, an election by Buyer to terminate this Contract
pursuant to clause (ii) of this subsection (f).
(g) If and to the extent directed by notice from Buyer at least five
(5) days prior to the Closing, Seller shall discharge any or all employees of
Seller at the Property on the Closing Date.
(h) Between the date hereof and the Closing Date, Seller shall not:
(i) Except for any work required to be performed by
Seller under a New Lease, or work necessary to comply
with the provisions of Section 11(a) hereof, enter
into any Contract requiring Seller to do work for any
Tenant after the Closing Date
- 26 -
<PAGE>
without first obtaining the prior written consent of
Buyer which consent shall not be unreasonably
withheld or delayed;
(ii) Accept the surrender of any Service Contract or
lease, or grant any concession, rebate, allowance or
free rent, without the prior written consent of Buyer
which consent shall not be unreasonably withheld or
delayed;
(iii) Renew, extend or modify any of the Service Contracts
without the prior written consent of Buyer, which
consent shall not be unreasonably withheld or
delayed;
(iv) Remove any Personal Property located in or on the
Property, except as may be required for repair and
replacement. All replacements shall be free and clear
of liens and encumbrances and shall be of quality at
least equal to the replaced items and shall be deemed
included in this sale, without cost of expense to
Buyer;
(v) Cause or permit the Property, or any interest
therein, to be transferred; or
(vi) Apply any Security Deposits on account of defaults of
any tenants of the Property occurring on or prior to
the Closing except for those tenants listed on
Exhibit C.
(i) Upon request of either party at any time after the date hereof, the
other shall assist the requesting party in all reasonable ways, but at no cost
to the other, in its preparation of audited financial statements, statements of
income and expense, and such other documentation as the requesting party may
reasonably request, covering the period of the other's ownership of the Property
or the transaction represented hereby.
- 27 -
<PAGE>
(i) Seller shall permit Buyer and its authorized representatives to
inspect the Books and Records of its operations with respect to the Property at
all reasonable times after reasonable notice.
ARTICLE 12. Apportionment of Taxes and Other Charges: (a) All normal
and customarily proratable items, including without limitation, real estate and
personal property taxes and assessments, utility bills (except as hereinafter
provided), collected rents, collected operating expense payments and other
income, road maintenance and common association fees in connection with the
maintenance and operation of Westlakes Office Park, and Operating Contract
payments (under Operating Contracts assumed by Buyer), shall be prorated as of
the Closing Date, Seller being charged and credited for all of the same relating
to the period up to the Closing Date and Buyer being charged and credited for
all of the same relating to the period on and after the Closing Date. If the
amount of any such item is not known at the time of the delivery of the deed,
such item shall be apportioned on the basis of the comparable period of the
prior year with a reapportionment within 90 days of the Closing Date or as soon
thereafter as the amount of the item is actually determined. No proration shall
be made in relation to delinquent rents, operating expense charges or tax
payments (collectively, "Delinquent Rents") existing, if any, as of the Closing
Date. To the extent that interim reimbursements of real estate taxes are made by
tenants under the Leases and have been collected by Seller prior to the Closing,
such payments may be retained by Seller without duty to account therefor to
Buyer (except to the extent such reimbursements are prepayments of amounts due
and payable after the Closing in which event such prepaid amounts shall be
remitted to Buyer at Closing and except for any challenges or contests asserted
by a Tenant) but no deduction shall be made from taxes allocable to Seller as
aforesaid. To the extent that such reimbursement obligations are payable after
Closing, Buyer agrees to bill tenants of the Property for said reimbursements
and to take any additional reasonable actions requested by Seller to collect the
same (with no obligation, however, to incur any out-of-pocket third party
expense with respect thereto) and as soon as the same are received by Buyer,
said receipts shall be apportioned between Seller and Buyer so that Seller shall
be
- 28 -
<PAGE>
entitled to the portion allocable to the period prior to Closing and Buyer shall
be entitled to the balance. Seller reserves the right to (i) bring or continue
any suit brought against any tenants of the Property listed as such tenants on
Exhibit C for accrued but unpaid reimbursements which shall have accrued on or
prior to March 31, 1997 and, (ii) at any time after the expiration of six (6)
months following the Closing Date, upon thirty (30) days prior written notice to
Buyer without Buyer's having collected the amounts thereof within such thirty
(30) day period, bring suit against tenants of the Property to collect for such
unpaid reimbursements that first accrued on or after April 1, 1997 and are owed
Seller as of the Closing Date, but Seller may not, subsequent to the Closing,
bring suit for possession of the premises occupied by such tenants.
With respect to percentage rent, if any, payable under the Leases for
any lease year ending prior to Closing, any and all percentage rent shall belong
to Seller. To the extent that any such percentage rent is received by Buyer,
Buyer shall promptly pay over the same to Seller. With respect to any lease year
during which the Closing shall take place, Seller shall be entitled to that
portion thereof represented by multiplying such percentage rent by a fraction,
the numerator of which is the number of days of such lease year occurring prior
to Closing and the denominator of which is 365. Buyer shall be entitled to the
balance thereof. Buyer agrees to bill tenants of the Property for such
percentage rent and to take any additional reasonable actions requested by
Seller to collect the same (with no obligation, however, to incur any
out-of-pocket third party expense with respect thereto) and promptly after
receipt thereof by Buyer, the same shall be allocated as aforesaid and paid to
Seller. Seller reserves the right to (x) bring or continue any suit brought
against any tenants of the Property listed as such tenants on Exhibit C for
accrued but unpaid percentage rent which shall have accrued on or prior to March
31, 1997 and, (y) at any time after the expiration of six (6) months following
the Closing Date, upon thirty (30) days prior written notice to Buyer without
Buyer's having collected the amounts thereof within such thirty (30) day period,
bring suit against tenants of the Property to collect for such accrued but
unpaid percentage rent that first accrued on or after April 1, 1997 and is owed
Seller as of the Closing Date, but Seller may not,
- 29 -
<PAGE>
subsequent to the Closing, bring suit for possession of the premises occupied by
such tenants.
With respect to operating expenses payable by tenants under the Leases,
to the extent that Seller has received as of the Closing payments allocable to a
period subsequent to the Closing, same shall be properly prorated with an
adjustment in favor of Buyer. With respect to any payments received by Buyer
after the Closing allocable to a period prior to Closing, Buyer shall account
therefor to Seller in the same manner as Delinquent Rents. This paragraph shall
survive the Closing until the earlier of (i) the date on which Buyer, with
Seller's assistance, shall have made a final reconciliation of operating
expenses for calendar year 1997 or (ii) December 31, 1997.
Buyer shall pay Seller Delinquent Rents as and when collected by Buyer,
it being agreed that Buyer shall not be deemed to have collected any such
arrearages until such time as the tenant is current in the payment of all rents
accruing from and after the Closing. Buyer agrees to bill tenants of the
Property for all Delinquent Rents and to take any additional reasonable actions
requested by Seller to collect Delinquent Rents provided that Buyer shall not be
obligated to incur any out-of-pocket third party expense in connection with such
actions and Buyer shall not be obligated to take any action to terminate a
tenancy. Seller reserves the right to (a) to bring or continue any suit brought
against any tenants of the Property listed as such tenants on Exhibit C for
accrued but unpaid Delinquent Rent which shall have accrued on or prior to March
31, 1997 and, (b) at any time after the expiration of six (6) months following
the Closing Date, upon thirty (30) days prior written notice to Buyer without
Buyer's having collected the amounts thereof within such thirty (30) day period,
bring suit against tenants of the Property to collect for Delinquent Rent that
first accrued on or after April 1, 1997 but Seller may not, subsequent to the
date hereof, bring suit for possession of the premises occupied by such tenants.
Final readings and final billings for utilities will be made if possible as of
the Closing Date, in which event no proration shall be made at the Closing with
respect to utility bills. Otherwise a proration shall be made based upon the
parties' reasonable good
- 30 -
<PAGE>
faith estimate and a readjustment made within thirty (30) days after Closing or
such later date as shall be necessary so that such readjustment may be based
upon actual bills for such utilities. No proration will be made in relation to
insurance premiums and the insurance policies will not be assigned to Buyer,
except to the extent insurance premiums are included in Common Area expenses, in
which event they shall be prorated as provided above. Seller shall be entitled
to receive a return of all deposits presently in effect with the utility
providers, and Buyer shall be obligated to make its own arrangements for
deposits with the utility providers. Buyer shall receive a credit for all
Security Deposits, free rent and other concessions or obligations to tenants and
leasing commissions or fees to the extent the same are due and payable prior to
the Closing and leasing commissions or fees due and payable for or with respect
to the terms of executed Leases (other than New Leases) that shall have
commenced prior to the Closing and not any extension period thereof unless, on
the Closing Date, the term of such Lease shall be in an extension period, in
which case, Buyer shall receive a credit for leasing commissions or fees due and
payable for or with respect to the term of such Lease through the end of such
extension period only.
The provisions of this Article 12 shall survive the Closing for a
period of ninety (90) days, and in the event of any error in performing the
prorations contemplated by this Agreement or if information becomes available
subsequent to the Closing (and after such ninety (90) day period) indicating
that the prorations performed at Closing were not accurate the parties hereto
shall be obligated to re-prorate the closing adjustments to correct such errors
and to reflect such new information.
With respect to any Operating Contracts, the cancellation of which
Buyer shall require by notice to Seller sent on or before April 14, 1997, to the
extent any sum or sums shall become due or payable for or with respect to the
unexpired portion of the term of such Operating Contract beginning on and after
the Closing Date, Buyer shall be responsible for the same and the Purchase Price
shall be increased by an amount equal to the aggregate of all such sums.
- 31 -
<PAGE>
The parties confirm that it shall be the Seller's responsibility to pay
all leasing commissions or fees and tenant improvement allowances to the extent
the same are due and payable prior to the Closing and all leasing commissions or
fees and tenant improvement allowances due and payable for or with respect to
the terms of executed Leases (other than New Leases) that shall have commenced
prior to the Closing and not any extension period thereof unless, on the Closing
Date, the term of said Lease shall be an extension period, in which case Seller
shall be responsible for leasing commissions or fees due and payable for and
with respect to the term of such Lease through the end of such extension period
only.
(b) A detailed statement shall be prepared as of the Closing setting
forth the manner of computation of the aforesaid pro-ration adjustments.
(c) The provisions of this Article 12 shall survive the Closing.
ARTICLE 13. Broker: (a) Each party represents hereby to the other that
it dealt with no broker in the consummation of this Contract except for Eastdil
Realty Company, L.L.C. ("Broker"), and each party indemnifies the other from any
claim arising from the failure of such representation by the indemnifying party.
(b) Any commission due Broker shall be paid by Seller, and Seller shall
obtain and provide to Buyer a receipt from such broker at Closing.
ARTICLE 14. Recording: It is agreed hereby that this Contract shall not
be filed for recording with any other governmental body.
ARTICLE 15. Notices: Any notice or communication which may be or is
required to be given pursuant to the terms of this Contract shall be in writing
and shall be sent to the respective party at the address set forth in the first
paragraph of this Contract, postage prepaid, by Certified Mail, Return Receipt
Requested, or by a nationally
- 32 -
<PAGE>
recognized overnight courier service that provides tracing and proof or receipt
of items mailed. The address to which a party may wish any such notice or
communication to be sent may be changed by notice similarly sent. Notices shall
be effective upon receipt. A copy of notice to Buyer shall also be
simultaneously sent to Pryor, Cashman, Sherman & Flynn, 410 Park Avenue, New
York, New York 10022-4441, Attention: Andrew S. Levine, Esq.. A copy of notice
to Seller shall also be simultaneously sent to Goulston & Storrs, P.C., 400
Atlantic Avenue, Boston, MA 02110-3333, Attention: Jordan P. Krasnow, Esq.
ARTICLE 16. Captions: The captions in this Contract are inserted only
for the purpose of convenient reference and in no way define, limit or prescribe
the scope or intent of this Contract or any part hereof.
ARTICLE 17. Successors and Assigns: (a) This Contract shall be binding
upon the parties hereto and their respective successors and assigns.
(b) Subject to Buyer's right to designate a nominee fifty one percent
(51%) or more of which is owned by Buyer (Buyer agreeing that if such ownership
shall not continue through and including the end of the period described in
Article 12 for re-proration of the items set forth therein to be pro-rated
and/or adjusted, Buyer shall in any event remain responsible to perform such
re-proration with Seller), to take title to the Premises and be the assignee or
transferee of the other assets being transferred pursuant to the provisions of
this Contract, Buyer may not assign this Contract nor any of the rights or
benefits thereof including, without limitation, the benefit of the
representations and warranties contained in Article 10 hereof, to any third
party either before or after the Closing without the written consent of Seller,
and any such unauthorized attempted assignment shall be null and void. The
provisions of this subsection (b) shall survive the Closing.
- 33 -
<PAGE>
ARTICLE 18. Closing Costs: Except as hereinafter specifically provided,
Seller and Buyer shall allocate all closing costs between them in accordance
with standard practice in Philadelphia, Pennsylvania. Each of Seller and Buyer
shall be responsible for preparing such documents as it is obligated to deliver
pursuant to Article 5 hereof and for its own legal expenses. Seller and Buyer
agree to allocate closing costs as follows:
(a) Transfer taxes or the like, to whatever governmental entity
due, shall be paid by Buyer.
(b) Buyer's Title Insurance expenses and premiums shall be paid by
Buyer.
(c) Survey expenses shall be paid by Buyer.
(d) The cost of preparation and recordation of any releases and
termination statements required to clear title to the Property
shall be paid by Seller.
(e) The cost of recordation of the Deed shall be paid by Buyer.
(f) Escrow charges, if any, shall be split equally between Seller
and Buyer.
ARTICLE 19. Governing Law: The laws of Pennsylvania shall govern the
validity, construction, enforcement and interpretation of this Contract.
ARTICLE 20. Multiple Counterparts: This Contract may be executed in any
number of identical counterparts. If so executed, each of such counterparts
shall constitute this Contract. In proving this Contract, it shall not be
necessary to produce or account for more than one such counterpart.
- 34 -
<PAGE>
ARTICLE 21. Representations and Warranties of Buyer: Buyer hereby
represents and warrants to Seller as of the date hereof and as of the Closing
Date as follows:
(a) This Contract and all documents executed by Buyer that are to be
delivered to Seller at the Closing are, and at the time of Closing will be, duly
authorized, executed and delivered by Buyer. This Contract and such documents
are, and at the Closing will be, legal, valid, and binding obligations of Buyer,
and do not and, at the time of Closing will not, violate any provisions of any
agreement or judicial order to which Buyer is a party or to which it is subject.
(b) There are no proceedings pending or, to Buyer's knowledge,
threatened against it in any court or before any governmental authority or any
tribunal which, if adversely determined, would have a material adverse effect on
its ability to purchase the Property or to carry out its obligations under this
Contract.
(c) Buyer shall indemnify and defend Seller against and hold Seller
harmless from any and all losses, costs, damages, liabilities and expenses
(including, without limitation, reasonable counsel fees) arising out of any
breach by Buyer of its representations and warranties hereunder.
ARTICLE 22. Post-Closing Obligations: After the Closing, Seller and
Buyer shall cooperate with one another at reasonable times and on reasonable
conditions and shall execute and deliver such instruments and documents as may
be necessary in order fully to carry out the intent and purposes of the
transactions contemplated hereby. Except for such instruments and documents as
the parties were originally obligated to deliver by the terms of this Contract,
such cooperation shall be without additional cost or liability.
ARTICLE 23. Duties and Responsibilities of Escrow Agent: Escrow Agent
shall deliver the Deposit (for purposes of this Article 23, the "Escrow") to
Seller or Buyer
- 35 -
<PAGE>
promptly after receiving a joint written notice from Seller and Buyer directing
the disbursement of the same, such disbursement to be made in accordance with
such direction. If Escrow Agent receives written notice from Buyer or Seller
that the party giving such notice is entitled to the Escrow, which notice shall
describe with reasonable specificity the reasons for such entitlement, then
Escrow Agent shall (i) promptly give notice to the other party of Escrow Agent's
receipt of such notice and enclosing a copy of such notice and (ii) subject to
the provisions of the following paragraph which shall apply if a conflict
arises, on the fourteenth day after the giving of the notice referred to in
clause (i) above, deliver the Escrow to the party claiming the right to receive
it.
In the event that Escrow Agent shall be uncertain as to its duties or
actions hereunder or shall receive instructions or a notice from Buyer or Seller
which are in conflict with instructions or a notice from the other party or
which, in the reasonable opinion of Escrow Agent, are in conflict with any of
the provisions of this Contract, it shall be entitled to take any of the
following courses of action:
(a) Hold the Escrow as provided in this Contract and decline to
take any further action until Escrow Agent receives a joint
written direction from Buyer and Seller or any order of a
court of competent jurisdiction directing the disbursement of
the Escrow, in which case Escrow Agent shall then disburse the
Escrow in accordance with such direction;
(b) In the event of litigation between Buyer and Seller, Escrow
Agent may deliver the Escrow to the clerk of any court in
which such litigation is pending; or
(c) Escrow Agent may deliver the Escrow to a court of competent
jurisdiction and therein commence an action for interpleader,
the cost thereof to Escrow Agent to be borne by whichever of
Buyer or Seller does not prevail in the litigation.
- 36 -
<PAGE>
Escrow Agent shall not be liable for any action taken or omitted in
good faith and believed by it to be authorized or within the rights or powers
conferred upon it by this Contract and it may rely, and shall be protected in
acting or refraining from acting in reliance upon an opinion of counsel and upon
any directions, instructions, notice, certificate, instrument, request, paper or
other documents believed by it to be genuine and to have been made, sent, signed
or presented by the proper party or parties. In no event shall Escrow Agent's
liability hereunder exceed the aggregate amount of the Deposit. Escrow Agent
shall be under no obligation to take any legal action in connection with the
Escrow or this Contract or to appear in, prosecute or defend any action or legal
proceedings which would or might, in its sole opinion, involve it in cost,
expense, loss or liability unless, in advance, and as often as reasonably
required by it, Escrow Agent shall be furnished with such security and indemnity
as it finds reasonably satisfactory against all such cost, expense, loss or
liability. Notwithstanding any other provision of this Contract, Buyer and
Seller jointly indemnify and hold harmless Escrow Agent against any loss,
liability or expense incurred without bad faith on its part and arising out of
or in connection with its services under the terms of this Contract, including
the cost and expense of defending itself against any claim of liability.
Escrow Agent shall not be bound by any modification of this Contract
unless the same is in writing and signed by Buyer, Seller and Escrow Agent. From
time to time on or after the date hereof, Buyer and Seller shall deliver or
cause to be delivered to Escrow Agent such further documents and instruments
that fall due, or cause to be done such further acts as Escrow Agent may
reasonably request (it being understood that the Escrow Agent shall have no
obligation to make any such request) to carry out more effectively the
provisions and purposes of this Contract, to evidence compliance with this
Contract or to assure itself that it is protected in acting hereunder.
Escrow Agent shall serve hereunder without fee for its services as
escrow agent, but shall be entitled to reimbursement for expenses incurred
hereunder, which expenses
- 37 -
<PAGE>
shall be paid and borne equally by Buyer and Seller, unless such expenses are
associated with litigation between Buyer and Seller, in which event they shall
be borne by the party that does not prevail in the litigation. Escrow Agent
agrees that it will not seek reimbursement for the services of its employees or
partners, but only for its actual and reasonably incurred out-of-pocket
expenses. Escrow Agent executes this Contract solely for the purpose of consent
to, and agreeing to be bound by the provisions of this Article 23, and to the
extent applicable to Escrow Agent, Article 3.
ARTICLE 24. Like Kind Exchange. Seller has advised Buyer that Seller
may wish the transaction contemplated by this Contract to take the form of a
so-called "like kind exchange" entered into pursuant to the provisions of
Section 1031 of the Internal Revenue Code of 1986, as amended. Buyer agrees with
Seller that Buyer shall, at Seller's written request sent at any time prior to
the Closing, execute such documents and take such actions as shall be necessary
to qualify the transaction contemplated hereby as such a like kind exchange
provided, however, that in doing so Buyer shall incur or be obligated to pay no
additional costs or expenses beyond those it is obligated to incur or pay
pursuant to the provisions of this Contract, and that Buyer shall incur no
additional liability beyond the liability incurred or contemplated to be
incurred by Buyer pursuant to the provisions of this Contract. In the event
Seller shall request that the transaction contemplated by this Contract take the
form of such a so-called "like kind exchange", Seller shall execute,
contemporaneously with the execution by Buyer of the documents described above,
an agreement in form and substance reasonably satisfactory to the parties and
their respective counsel, providing for the indemnification by Seller of Buyer
against any and all claims, loss, cost, damage, penalty, liability or expense
that may arise under any applicable environmental law on account of the Buyer's
having held fee title to any property other than the Property.
ARTICLE 25. Conditions Precedent To Closing
- 38 -
<PAGE>
(a) The obligations of Seller to deliver title to the Property and to
perform the other covenants and obligations to be performed by Seller on the
Closing Date shall be subject to the following conditions (all or any of which
may be waived, in whole or in part, by Seller):
(i) The representations and warranties made by Buyer
herein shall be true and correct in all material
respects with the same force and effect as though
such representations and warranties had been made on
and as of the Closing Date.
(ii) Buyer shall have delivered to Seller all of the
documents provided herein for said delivery.
(b) The obligations of Buyer to accept title to the Property and to
perform the other covenants and obligations to be performed by Buyer on the
Closing Date shall be subject to the following conditions (all or any of which
may be waived, in whole or in part, by Buyer):
(i) The representations and warranties made by Seller
herein shall be true and correct in all material
respects with the same force and effect as though
such representations and warranties had been made on
and as of the Closing Date.
(ii) Seller shall have delivered to Buyer all of the
documents provided herein for said delivery.
ARTICLE 26. Miscellaneous.
- 39 -
<PAGE>
(a) This Contract shall not be effective or binding until such time as
it has been executed and delivered by all parties hereto. This Contract may be
executed by the parties hereto in counterparts, all of which together shall
constitute a single Contract.
(b) All references herein to any section, schedule or exhibit shall be
to the sections of this Contract and to the schedules and exhibits annexed
hereto unless the context clearly dictates otherwise. All of the schedules and
exhibits annexed hereto are, by this reference, incorporated herein.
(c) In the event of any litigation or alternative dispute resolution
between Seller and Buyer in connection with this Contract or the transaction
contemplated herein, the non-prevailing party in such litigation or alternative
dispute resolution shall be responsible for payment of all expenses and
reasonable attorneys' fees incurred by the prevailing party.
ARTICLE 27. Title Matters.
At the Closing, Buyer shall accept title to the Premises subject to the
following (collectively, the "Permitted Encumbrances"):
(a) The lien of real estate taxes, personal property taxes, water
charges, and sewer charges provided same are not due and payable, but subject to
adjustment as provided herein;
(b) Leases and New Leases;
(c) Those matters set forth on Exhibit "A";
(d) Any and all laws, statutes, ordinances, codes, rules, regulations,
- 40 -
<PAGE>
requirements, or executive mandates affecting the Property as of the date
hereof; and
(e) Any state of facts which a recent and accurate survey of the Real
Property would actually show provided that they do not materially adversely
impact upon the present use of the Property and do not render title thereto
uninsurable at standard rates.
Buyer shall cause Commonwealth Land Title Insurance Company, or such
other or additional title insurance companies as may be selected by Buyer (the
"Title Company") to prepare a title insurance search and commitment for owner's
title insurance policies for Real Property (the "Title Commitment") and shall
cause a copy of same to be delivered to counsel for Seller on or prior to April
14, 1997. If this Contract is not terminated either by Buyer or by Buyer's
failure to notify Seller that it is not terminated, as the case may be, in each
case as provided in ARTICLE 6 hereof, and if the Title Commitment does not
include any defect, objection or exception not listed on Exhibit A, or if Buyer
does not send or cause to be sent the Title Commitment to Seller by or before
April 14, 1997, Buyer shall, for all purposes hereunder, have accepted and be
deemed to have accepted the state of title to the Premises as of the effective
date of the Title Commitment (the "Commitment Date") so long as the same is
April 1, 1997 or thereafter. Seller agrees to use good faith efforts to cure
each and every defect, objection or exception to the title to the Premises set
forth on the Title Commitment and not listed on Exhibit A and in any event to
cure, at its expense, (i) judgments against Seller, (ii) mortgages or other
liens which can be satisfied by payment of liquidated amount and (iii) defects,
objections or exceptions which can be removed by payments not to exceed
$100,000.00 in the aggregate. Seller, in its discretion, may adjourn the Closing
for up to sixty (60) days in order to eliminate such defects, objections or
exceptions. If, after complying with the foregoing requirements, Seller is
unable to eliminate all such defects, objections or exceptions in accordance
with the terms of this Contract on or before such adjourned date for the
Closing, Buyer shall elect within ten (10) days thereafter, by notice to Seller,
either (w) to terminate this Contract by notice given to the Seller, in which
event the provisions of ARTICLE 6 relative to the effect of the termination of
this Contract and the return of the Deposit shall apply, or (x) to accept title
subject to such defects, objections or exceptions and receive no credit against
or reduction of the
- 41 -
<PAGE>
Purchase Price in which case the Closing shall occur on the fifth (5th) business
day following Seller's receipt of such notice. The failure of Buyer to send
Seller such notice within such ten (10) day period shall be and be deemed to be,
for all purposes hereunder, an election by Buyer to terminate this Contract
pursuant to clause (w) of this paragraph. Seller agrees and covenants that it
shall not voluntarily place any defects, objections or exceptions to title to
any of the Real Property from and after the Commitment Date that Seller will not
remove therefrom on or prior to the Closing Date.
Seller shall deliver to Buyer, on the Closing Date, instruments in
recordable form sufficient to discharge any such mortgages or other liens which
Seller is obligated to pay and discharge pursuant to the terms of this Contract.
If the Title Commitment discloses judgments, bankruptcies or other
returns against other persons having names the same as or similar to that of
Seller, Seller, on request, shall deliver to the Title Company affidavits
showing that such judgments, bankruptcies or other returns are not against
Seller, or any affiliates. Upon request by Buyer, Seller shall deliver any
affidavits and documentary evidence as are reasonably required by the Title
Company to eliminate the standard or general exceptions on the ALTA form Owner's
Policy.
ARTICLE 28. Confidentiality.
Buyer acknowledges that Beacon Properties Corporation, the general
partner of Seller is a publicly owned corporation subject to regulation by the
Securities and Exchange Commission ("SEC") and Seller acknowledges that Cali
Realty Corporation, Buyer's limited partner is a publicly owned corporation
subject to regulation by the SEC, and each party acknowledges to the other that
the regulations of the SEC may require the other party to disclose the existence
of this Contract and the contents or some or all of the documents and materials
delivered by one party to the other. Accordingly, each party expressly consents
to the disclosure of the terms and conditions of the transaction
- 42 -
<PAGE>
represented by this Contract, this Contract itself and the terms of any document
or materials which a party regulated by the SEC in good faith believes should be
disclosed in connection with fulfillment of its disclosure requirements under
SEC regulations.
In addition to the disclosure contemplated by the preceding paragraph,
and without limitation thereof, either party may disclose this Contract or the
contents of any documents to the partners, advisors, underwriters, employees,
affiliates, officers, directors, consultants, lenders, accountants or legal
counsel of such party on a "need to know" basis (as determined in good faith by
the disclosing party) provided that either party shall advise any of its said
partners, advisors, underwriters, employees, affiliates, officers, directors,
consultants, lenders, accountants or legal counsel of the confidential nature of
such materials and shall obtain from them an undertaking to keep such materials
confidential.
Prior to the Closing, any press release with respect to the sale
contemplated herein or any matters set forth in this Contract will be made only
in the form approved by Buyer and Seller, and such approval shall not be
unreasonably withheld or delayed. Thereafter, any press release which contains
information regarding Seller or any previous owner which is not in the public
domain will be made only in the form approved by Buyer and Seller, and such
approval shall not be unreasonably withheld.
In all other respects, no public disclosure or statement about or with
respect to this Contract or the transaction represented hereby shall be made
without the prior consent of Buyer and Seller, which shall not be unreasonably
withheld or delayed.
The provisions of this ARTICLE 28 shall survive the Closing.
- 43 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Contract as
an instrument under seal as of the day and date first written above.
WITNESS: BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
its General Partner
By:
Charles H. Cremens, Senior
Vice President
[Seller]
CALI REALTY ACQUISITION
CORPORATION
WITNESS:
By:
Name:
Title:
[Buyer]
WITNESS: COMMONWEALTH LAND TITLE
INSURANCE COMPANY
By:___________________________
[Escrow Agent]
- 44 -
<PAGE>
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
-1-
<PAGE>
EXHIBIT B
DESCRIPTION OF PERSONAL PROPERTY
-1-
<PAGE>
EXHIBIT C
LEASES AND RENT ROLL
-1-
<PAGE>
EXHIBIT C-1
FORM OF LEASE
-1-
<PAGE>
EXHIBIT D
FORM OF DEED
THIS INDENTURE made the ___ day of _____________, 1997 between BEACON
PROPERTIES, L.P., a Delaware limited partnership (hereinafter called the
"Grantor"), on the one part, and_______________________________, a _____________
(hereinafter called the "Grantee"), on the other part,
WITNESSETH, that the said Grantor for and in consideration of
Seventy-Two Million Five Hundred Thousand Dollars ($72,500,000.00) lawful money
of the United States of America unto it well and truly paid by the said Grantee,
at or before the sealing and delivery hereof, the receipt whereof is hereby
acknowledged, has granted, bargained and sold, aliened, enfeoffed, released and
confirmed, and by these presents does grant, bargain and sell, alien, enfeoff,
release and confirm unto the said Grantee, its successors and assigns.
ALL THOSE CERTAIN tracts of land situated in Berwyn, Township of
Tredyffrin, County of Chester, Commonwealth of Pennsylvania, bounded and
described as more particularly set forth on Exhibit A attached hereto and
incorporated herein by this reference.
TOGETHER with all and singular the buildings and improvements, ways,
streets, alleys, passages, waters, water-courses, rights, liberties, privileges,
hereditaments and appurtenances, whatsoever thereunto belonging, or in any wise
appertaining, and the reversions and remainders, rents, issues, and profits
thereof; and all the estate, right, title, interest, property, claim and demand
whatsoever of them, the said Grantor in law as in equity, or otherwise
howsoever, of, in, and to the same and every part thereof.
UNDER AND SUBJECT to existing easements, covenants and conditions of
record listed in Exhibit B attached hereto and made a part hereof.
TO HAVE AND TO HOLD the said lot or piece of ground above described,
with the buildings and improvements thereon erected, the hereditaments and
premises hereby granted, or mentioned and intended so to be, with the
appurtenances, unto the said
- 1 -
<PAGE>
Grantee, its successors and assigns, to and for the proper use and behoof of the
said Grantee, its successors and assigns, forever.
AND the said Grantor, for itself and its successors, does by these
presents, covenant, grant and agree, to and with the said Grantee, its
successors and assigns, that it, the said Grantor and its successors all and
singular the hereditaments and premises hereinabove described and granted, or
mentioned and intended so to be, with the appurtenances, unto the said Grantee,
its successors and assigns, against it, the said Grantor, its successors and
against all and every person or persons whomsoever lawfully claiming or to claim
the same or any part thereof, by, from or under it, them or any of them, shall
and will, Under and Subject as aforesaid, WARRANT and forever DEFEND.
IN WITNESS WHEREOF,, the said Grantor has caused this Deed to be
executed and its corporate seal affixed the day and year first above written.
ATTEST: BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
Its General Partner
______________________ By: ________________________
Its
Hereunto duly authorized
COMMONWEALTH OF _________________
COUNTY OF _________________________
On this, the ____ day of ______________, 1997, before me, a Notary
Public for the Commonwealth and County aforesaid, the undersigned officer,
personally appeared ________________________, who acknowledged to be the
_______________ of Beacon Properties Corporation, a Maryland corporation and the
general partner of Beacon Properties, L.P., a Delaware limited partnership,
known to me (satisfactorily proven) to be the person whose name is subscribed to
the within instrument, and acknowledged that
- 2 -
<PAGE>
he, as such officer, being authorized to do so, executed the same as his free
and voluntary act and deed for the purposes therein contained by signing the
name of such corporation as such partner by himself as such officer.
IN WITNESS WHEREOF I have hereunto set my hand and official seal.
----------------------------------
Notary Public
My commission expires:
- 3 -
<PAGE>
EXHIBIT E
INTENTIONALLY OMITTED
-1-
<PAGE>
EXHIBIT F
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT (RE: LEASES)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of this _____ day of
_______________, 1997, by and between BEACON PROPERTIES, L.P., a Delaware
limited partnership ("Assignor") and ______________________, a ___________
("Assignee").
WITNESSETH:
WHEREAS, Assignee has this date purchased from Assignor certain real
property (the "Premises"), known as One, Two, Three and Five Westlakes,
Westlakes Office Park, Tredyffrin Township, Pennsylvania, all more particularly
described on Exhibit A attached hereto made a part hereof, and
WHEREAS, under the terms and conditions of the Purchase and Sale Contract
pursuant to which the Premises were purchased, it was contemplated that Assignor
and Assignee would enter into this Assignment;
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto do hereby agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right, title and
interest of Assignor, if any, in and to the following described property:
(a) All leases, subleases and other occupancy agreements relating
to or affecting the Premises, together with all guarantees of obligations of
tenants and other parties under such leases and agreements, said leases and
other agreements being more fully described in Exhibit B attached hereto and
hereby made a part hereof (all together, the "Leases"); and
- 1 -
<PAGE>
(b) The current outstanding balance of all security deposits and
prepaid rents, together with all interest accrued thereon, as more fully
described on Exhibit C hereto (collectively, the "Security Deposits").
2. Assignor shall indemnify and defend Assignee against, and hold Assignee
harmless from, any and all claims, loss, liabilities, damages, expenses and
costs arising out of or relating to Assignor's failure to perform any duty or
obligation of Assignor under the Leases or with respect to the Security Deposits
attributable to the acts or omissions of Assignor arising prior to the date
hereof and not otherwise known to Assignee on the date hereof.
TO HAVE AND TO HOLD all of the foregoing unto the Assignee, its
successors and assigns, from and after the date hereof, subject to the terms,
covenants, conditions and provisions contained herein.
3. Assignee hereby accepts the foregoing assignment of the Leases and
Security Deposits and does hereby covenant that with respect thereto:
(a) Assignee shall indemnify and defend Assignor against, and hold
Assignor harmless from, any and all claims, loss, liabilities, damages, expenses
and costs arising out of or relating to Assignee's failure to perform any duty
or obligation of Assignee under the Leases or with respect to the Security
Deposits attributable to the acts or omissions of Assignee and arising on or
after the date hereof.
(b) Assignee hereby assumes all the duties and obligations of
Assignor accruing from and after the date hereof under the Leases and with
respect to the Security Deposits.
4. This Agreement and the obligations of the parties hereunder shall
survive the closing of the transactions referred to in the Purchase and Sale
Contract, shall be binding upon and inure to the benefit of the parties hereto,
their respective legal representatives, successors and assigns and shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania and may not be modified or amended except by written agreement
signed by both parties.
- 2 -
<PAGE>
IN WITNESS WHEREOF, the parties have executed this agreement under
seal on the day and year first above written.
Witness: ASSIGNOR:
BEACON PROPERTIES, L.P.
- ------------------------
By: Beacon Properties Corporation,
General Partner
By: __________________________
Charles H. Cremens, Senior
Vice President
ASSIGNEE:
_________________________ By:
Its:
- 3 -
<PAGE>
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT (RE: CONTRACTS)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of this _____ day of
_______________, 1997, by and between BEACON PROPERTIES, L.P., a Delaware
limited partnership ("Assignor") and ______________________, a
________________________ ("Assignee").
WITNESSETH:
WHEREAS, Assignee has this date purchased from Assignor certain real
property (the "Premises"), known as One, Two, Three and Five Westlakes,
Westlakes Office Park, Tredyffrin Township, Pennsylvania, all more particularly
described on Exhibit A attached hereto made a part hereof, and
WHEREAS, under the terms and conditions of the Purchase and Sale Contract
pursuant to which the Premises were purchased, it was contemplated that Assignor
and Assignee would enter into this Assignment;
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto do hereby agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right, title and
interest of Assignor, if any, in and to the following described property:
(a) All those certain service, supply and maintenance agreements,
equipment leases and other contracts with respect to or affecting the Premises
which Buyer has elected to assume in accordance with the procedure therefor set
forth in the Purchase and Sale Contract for the Premises, all as specifically
listed on Schedule "Contracts" attached hereto and made a part hereof
(collectively, the "Contracts");
- 1 -
<PAGE>
(b) Any and all assignable licenses, permits, governmental
authorizations, certificates of occupancy and other governmental approvals that
are in effect as of the date of this Assignment and Assumption Agreement and
necessary for the current use and operation of the Property to the extent
assignable (collectively, "Permits");
(c) Any and all warranties and telephone exchange numbers that
exist as of the date of this Assignment and Assumption Agreement and relate to
the Real Property or the Personal Property, as defined in said Purchase and Sale
Contract (collectively, "General Intangibles"); and
(d) All of Assignor's right, title and interest in and to the
names One Westlakes, Two Westlakes, Three Westlakes, Five Westlakes and
Westlakes Office Park (collectively, "Name").
TO HAVE AND TO HOLD all of the foregoing unto the Assignee, its
successors and assigns, from and after the date hereof, subject to the terms,
covenants, conditions and provisions contained herein.
2. Assignee hereby accepts the foregoing assignment of the
Contracts, Permits, General Intangibles and Name and does hereby covenant that
with respect thereto Assignee hereby assumes all the duties and obligations of
Assignor accruing from and after the date hereof under the Contracts, Permits,
General Intangibles and Name.
3. This Agreement and the obligations of the parties hereunder
shall survive the closing of the transactions referred to in the Purchase and
Sale Contract, shall be binding upon and inure to the benefit of the parties
hereto, their respective legal representatives, successors and assigns and shall
be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania and may not be modified or amended except by written agreement
signed by both parties.
- 2 -
<PAGE>
IN WITNESS WHEREOF, the parties have executed this agreement under
seal on the day and year first above written.
WITNESS: ASSIGNOR:
BEACON PROPERTIES, L.P.
_________________________ By: Beacon Properties Corporation,
General Partner
By:
Charles H. Cremens, Senior
Vice President
ASSIGNEE:
______________________________
_________________________ By: _______________________
Name:
Its:
- 3 -
<PAGE>
EXHIBIT H
FORM OF FIRPTA AFFIDAVIT
CERTIFICATION OF NONFOREIGN STATUS
Partnership
Section 1445 of the Internal Revenue Code provides that a transferee (buyer) of
a U.S. real property interest must withhold tax if the transferor (seller) is a
foreign person. To inform the transferee (buyer) that withholding of tax is not
required upon disposition of a U.S. real property interest, Beacon Properties,
L.P.
("Beacon"), hereby certifies the following:
1. Beacon is not a foreign person for the purposes of U.S. income taxation;
2. Beacon's taxpayer identification number is:
3. Beacon's business address is: 50 Rowes Wharf, Boston, Massachusetts 02110.
Beacon understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statements Beacon
has made here could be punished by fine, imprisonment, or both.
Under penalties of perjury, Beacon declares that it has examined this
certification and to the best of its knowledge and belief it is true, correct,
and complete.
Date: ______________________
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation, General Partner
By:
Charles H. Cremens,
Senior Vice President
-1-
<PAGE>
EXHIBIT I
OPERATING CONTRACTS
-1-
<PAGE>
EXHIBIT J
LITIGATION, ETC.
-1-
<PAGE>
EXHIBIT K
ESTOPPEL CONFIRMATION
TO: The Landlord under the Lease;
The purchaser of the Property ("Purchaser"); and
Any Mortgagees of the Property
Tenant hereby certifies as follows:
1. A copy of the Estoppel Certificate which the undersigned recently
signed is attached hereto.
2. The information set forth on the Estoppel Certificate is repeated
with an effective date of March 31, 1997, and is true and correct [except as
follows:]
3. Tenant has paid rent and all other charges through March 31, 1997.
This Estoppel Confirmation is given to Landlord, Purchaser and
Mortgagees (as such terms are defined herein or in the Estoppel Certificate)
with the understanding that said parties will rely hereon in connection with the
conveyance of the Property of which the Premises constitute a part.
TENANT
Date:____________________ By:______________________
-1-
<PAGE>
EXHIBIT L
TENANT NOTICES
-1-
FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT
This FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT is executed as of
the 18th day of April, 1997, by and between BEACON PROPERTIES, L.P., a Delaware
limited partnership having a mailing address of 50 Rowes Wharf, Boston,
Massachusetts 02110 (the "Seller") and CALI REALTY ACQUISITION CORPORATION,
having an office at 11 Commerce Drive, Cranford, New Jersey 01016-3599
(hereinafter referred to as "Buyer").
WITNESSETH:
Reference is made to the following facts which constitute the
background to this agreement:
A. Pursuant to the terms of a certain Purchase and Sale Contract dated
as of April 9, 1997 (the "Original Agreement"), Seller agreed to sell and Buyer
agreed to buy certain property owned by Seller known as and numbered One, Two,
Three and Five Westlakes Office Park, located in Tredyffin Township,
Pennsylvania (the "Property").
B. The Seller and Buyer desire to amend the Original Agreement as
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration in hand this day
paid by each of the parties hereto to the other, the receipt and sufficiency of
which are hereby acknowledged, Buyer and Seller hereby amend the Original
Agreement as follows:
1. Exhibit A to the Original Agreement is hereby amended by adding to
the legal description of the Real Property at the end thereof the following:
"ALSO TOGETHER WITH all of the right, title and interest of the Seller
in and to Westlakes Drive as shown on a survey made by Curtis Cox
Kennerly, Civil Engineers daqted 4/12/1984 last revised 9/23/1988 and
recorded 12/1/1988 as Plan No. 8805."
2. Article 12 of the Original Agreement is hereby amended by deleting
the date "December 31, 1997" appearing at the end of the second complete
paragraph on page 22 of the Original Agreement and inserting the following date
in its place: "March 31, 1998.
- 1 -
<PAGE>
3. ARTICLE 27 is hereby amended by removing the date "April 1, 1997"
therefrom wherever it appears and substituting the date "March 21, 1997"
therefor.
4. Except as provided below in this Paragraph 3, Buyer hereby waives
its right to terminate the Original Agreement pursuant to the provisions of
ARTICLE 6 thereof or otherwise and agrees with Seller that the Title Commitment
it has received (the "Buyer's Title Commitment") satisfies all of the conditions
set forth in the Original Agreement and that Buyer has no objections to title to
the Real Property as set forth in such Title Commitment so long as Seller
satisfies the requirements of paragraphs 1, 4 and 5 (each by way of a customary
affidavit), 13, 15, 16, 17, 18, 19 and 20 of Schedule B-1 to the Buyer's Title
Commitment to the satisfaction of the Title Company, as defined in the Original
Agreement, at or prior to the Closing.
Notwithstanding anything to the contrary contained in the
paragraph next preceding, however, Buyer shall have an additional period of ten
(10) business days beginning on the first business day following the date hereof
(the "Testing Period") to perform additional tests on the Real Property with
respect to the status of the Real Property's compliance with environmental laws
to the extent, and only to the extent set forth in Exhibit TEST attached hereto
and hereby made a part hereof. If such tests reveal that the portions of the
Real Property so tested contain 10,000 parts per million of total petroleum
hydrocarbons ("TPH") or less, Buyer shall have no right to perform any further
tests on the Real Property or to terminate the Original Agreement, as hereby
amended, and the Closing shall proceed as provided in the Original Agreement.
The foregoing notwithstanding, it shall be a condition precedent to Buyer's
right to commence the test borings described in Exhibit TEST that Buyer shall
have deposited with the Escrow Agent, as defined in the Original Agreement, an
additional sum of $1,000,000.00 (the "Additional Deposit") on or within one (1)
business day following the date hereof. Upon the receipt by the Escrow Agent of
the Additional Deposit, the Additional Deposit shall, for all purposes under the
Original Agreement and hereunder become and remain a part of the "Deposit" and
all references to the "Deposit" in the Original Agreement and herein then and
thereafter shall mean and be deemed to mean, for all purposes thereunder and
hereunder, an amount equal to the sum of the original Deposit made pursuant to
the Original Agreement and the Additional Deposit.
If the tests described in Exhibit TEST shall reveal that any of the
collected test soil samples so tested contain more than 10,000 parts per million
of TPH, Buyer shall notify Seller of the same within two (2) business days after
the end of the ten (10) business day period referred to in the paragraph next
preceding, and in such notice shall have the right either to (i) elect to
conduct further tests only to determine the existence and extent, if any, of
Base Neutral Extractable compounds and RCRA8 metals in the test samples in
Buyer's possession within such periods of time and to determine such levels of
presence as the parties may, after negotiation in good faith, determine or (ii)
terminate the Original Agreement, as hereby amended. The failure of Buyer to
send such notice within such two (2) business day period shall be and be deemed
to
- 2 -
<PAGE>
be for all purposes hereunder an election by Buyer to terminate the Original
Agreement, as hereby amended. If the Original Agreement, as hereby amended, is
terminated or deemed terminated as herein provided, the Deposit shall be
returned to Buyer forthwith and all of the unaccrued rights and obligations of
the parties to the Original Agreement, as hereby amended, shall cease and
terminate other than the Surviving Obligation, which shall apply not only to any
tests performed by Buyer pursuant to ARTICLE 6 of the Original Agreement but
also to any other tests performed by Buyer in, on or to the Property.
Buyer shall, in any event, provide Seller with copies of all test
results and other material, documents or instruments developed or generated by
or for Buyer in connection with the performance of the tests described herein.
Except as required by law, Buyer shall not, without the prior consent of Seller,
reveal or disclose all or any of the information generated in connection with
the performance of any such tests to any third party other than to its
employees, officers, directors, attorneys and environmental advisors who shall
have a need to know the same, each and all of whom Buyer shall advise of the
confidential nature of such information and direct to keep all of such
information confidential. Buyer shall notify Seller within a reasonable time
prior to the conduct of any such test on the Real Property so that Seller shall
have a reasonable opportunity to have a representative of Seller on the site
during the conduct of such tests and Buyer hereby consents to the presence of
such a representative during the conduct of such tests.
5. Notwithstanding anything to the contrary contained in the Original
Agreement, Buyer shall receive a credit against the Purchase Price for (i) the
tenant improvement allowance provided for in that certain Second Amendment dated
November 19, 1996, to a lease between Seller, as successor in interest to Quarry
Office Park Associates, as Landlord, and Oracle Corporation, as Tenant, dated
May 11, 1995 for premises in Two Westlakes and (ii) any brokerage commission
payable on account of such Second Amendment and the transaction repesented
thereby.
6. The parties hereby ratify and confirm the Original Agreement and
acknowledge that the Original Agreement, as amended hereby, remains in full
force and effect.
- 3 -
<PAGE>
Executed as a sealed instrument as of the day and year first above
written, in any number of counterpart copies each of which shall be deemed an
original for all purposes.
WITNESS: BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
its General Partner
By:
Charles H. Cremens, Senior
Vice President
[Seller]
CALI REALTY ACQUISITION
CORPORATION
WITNESS:
By:
Name:
Title:
[Buyer]
REVOLVING CREDIT AGREEMENT
among
CALI REALTY, L.P. AND
CERTAIN OF ITS SUBSIDIARIES
and
FLEET NATIONAL BANK
and
OTHER LENDERS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT
and
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT
with
FLEET NATIONAL BANK,
AS LOAN ARRANGER
THE CHASE MANHATTAN BANK,
AS SYNDICATION AGENT
BANKERS TRUST COMPANY,
AS DOCUMENTATION AGENT
and
PNC BANK, N.A.,
COMMERZBANK,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, and
FIRST NATIONAL BANK OF CHICAGO
AS CO-AGENTS
Dated as of August 6, 1997
<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
ss.1. DEFINITIONS AND RULES OF INTERPRETATION...........................1
ss.1.1. Definitions.............................................1
ss.1.2. Rules of Interpretation................................25
ss.2. THE REVOLVING CREDIT FACILITY....................................26
ss.2.1. Commitment to Lend.......................................26
ss.2.2. [Intentionally Omitted]..................................27
ss.2.3. The Revolving Credit Notes...............................27
ss.2.4. Interest on Revolving Credit Loans; Fees.................28
ss.2.5. Requests for Revolving Credit Loans......................30
ss.2.6. Conversion Options.......................................31
ss.2.7. Funds for Revolving Credit Loans.........................33
ss.2.8. Repayment of the Revolving Credit Loans at Maturity......34
ss.2.9. Optional Repayments of Revolving Credit Loans............34
ss.2A. COMPETITIVE BID LOANS. ..............................................35
ss.2A.1. The Competitive Bid Option. .........................35
ss.2A.2. Competitive Bid Loan Accounts:
Competitive Bid Notes. ..............................35
ss.2A.3. Competitive Bid Quote Request; Invitation for
Competitive Bid Quotes. .............................36
ss.2A.4. Alternative Manner of Procedure. ......................37
ss.2A.5. Submission and Contents of Competitive Bid Quotes. ....38
ss.2A.6. Notice to Borrower Representative. ....................39
ss.2A.7. Acceptance and Notice by Borrower Representative
and Agent. ............................................39
ss.2A.8. Allocation by Agent. ..................................40
ss.2A.9. Funding of Competitive Bid Loans. .....................40
ss.2A.10. Funding Losses. .......................................41
ss.2A.11. Repayment of Competitive Bid Loans; Interest. .........41
ss.2A.12. Optional Repayment of Competitive Bid Loans. ..........41
ss.3. LETTERS OF CREDIT................................................42
ss.3.1. Letter of Credit Commitments............................42
ss.3.2. Reimbursement Obligation of the Borrowers...............43
ss.3.3. Letter of Credit Payments; Funding of a Loan............43
ss.3.4. Obligations Absolute....................................44
ss.3.5. Reliance by Issuer......................................45
ss.3.6. Letter of Credit Fee....................................45
ss.4. CERTAIN GENERAL PROVISIONS.......................................46
ss.4.1. Funds for Payments......................................46
ss.4.2. Computations............................................46
ss.4.3. Inability to Determine LIBOR Rate.......................47
ss.4.4. Illegality..............................................47
ss.4.5. Additional Costs, Etc...................................47
ss.4.6. Capital Adequacy........................................49
ss.4.7. Certificate.............................................50
ss.4.8. Indemnity...............................................50
ss.4.9. Interest on Overdue Amounts.............................50
ss.4.10. Concerning Joint and Several Liability of the
Borrowers...............................................50
ss.4.11 Reasonable Efforts to Mitigate..........................52
ss.4.12 Replacement of Lenders..................................53
ss.5. GUARANTIES 54
ss.6. REPRESENTATIONS AND WARRANTIES...................................54
ss.6.1. Authority; Etc..........................................55
ss.6.2. Governmental Approvals..................................58
ss.6.3. Title to Properties; Leases.............................58
ss.6.4. Financial Statements....................................59
ss.6.5. Fiscal Year.............................................59
ss.6.6. Franchises, Patents, Copyrights, Etc....................59
ss.6.7. Litigation..............................................60
ss.6.8. No Materially Adverse Contracts, Etc....................60
ss.6.9. Compliance With Other Instruments, Laws, Etc............60
ss.6.10. Tax Status..............................................60
ss.6.11. No Event of Default.....................................61
ss.6.12. Investment Company Acts.................................61
ss.6.13. Absence of UCC Financing Statements, Etc................61
ss.6.14. Absence of Liens........................................62
ss.6.15. Certain Transactions....................................62
ss.6.16. Employee Benefit Plans..................................62
ss.6.17. Regulations U and X.....................................64
ss.6.18. Environmental Compliance................................64
ss.6.19. Subsidiaries............................................66
ss.6.20. Loan Documents..........................................66
ss.6.21. REIT Status.............................................66
ss.6.22. Subsequent Guarantors...................................66
ss.7. AFFIRMATIVE COVENANTS OF THE BORROWERS AND THE
GUARANTORS ......................................................66
ss.7.1. Punctual Payment........................................66
ss.7.2. Maintenance of Office...................................67
ss.7.3. Records and Accounts....................................67
ss.7.4. Financial Statements, Certificates and Information......67
ss.7.5. Notices.................................................70
ss.7.6. Existence of Borrowers and Subsidiary
Guarantors; Maintenance of Properties...................72
ss.7.7. Existence of CRC; Maintenance of REIT Status
of CRC; Maintenance of Properties.......................72
ss.7.8. Insurance...............................................73
ss.7.9. Taxes...................................................74
ss.7.10. Inspection of Properties and Books......................74
ss.7.11. Compliance with Laws, Contracts, Licenses, and Permit...75
ss.7.12. Use of Proceeds.........................................75
ss.7.13. Acquisition of Unencumbered Properties..................75
ss.7.14. Additional Guarantors; Solvency of Guarantors...........75
ss.7.15. Further Assurances......................................76
ss.7.16. [Intentionally Omitted].................................76
ss.7.17. Environmental Indemnification...........................76
ss.7.18. Response Actions........................................77
ss.7.19. Environmental Assessments...............................77
ss.7.20. Employee Benefit Plans..................................77
ss.7.21. No Amendments to Certain Documents......................78
ss.7.22. Primary Credit Facility.................................78
ss.7.23. Management..............................................78
ss.7.24 Distributions in the Ordinary Course....................79
ss.8. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS
AND THE GUARANTORS...............................................79
ss.8.1. Restrictions on Indebtedness............................79
ss.8.2. Restrictions on Liens, Etc..............................80
ss.8.3. Restrictions on Investments.............................82
ss.8.4. Merger, Consolidation and Disposition of Assets.........83
ss.8.5. Negative Pledge.........................................86
ss.8.6. Compliance with Environmental Laws......................86
ss.8.7. Distributions...........................................86
ss.8.8. Employee Benefit Plans..................................87
ss.8.9. Fiscal Year.............................................88
ss.9. FINANCIAL COVENANTS OF THE BORROWERS.............................88
ss.9.1. Leverage Ratio..........................................88
ss.9.2. Secured Indebtedness....................................88
ss.9.3. Tangible Net Worth......................................88
ss.9.4. Debt Service Coverage...................................89
ss.9.5 Non-Income Producing Land...............................89
ss.9.6 Construction-in-Process.................................89
ss.9.7 Mortgage Notes..........................................89
ss.9.8 Unhedged Variable Rate Debt.............................89
ss.9.9. Unsecured Indebtedness..................................89
ss.9.10. Unencumbered Property Debt Service Coverage.............90
ss.9.11. Covenant Calculations...................................90
ss.10 CONDITIONS TO THE CLOSING DATE...................................91
ss.10.1. Loan Documents..........................................91
ss.10.2. Certified Copies of Organization Documents..............91
ss.10.3. By-laws; Resolutions....................................92
ss.10.4. Incumbency Certificate; Authorized Signers..............92
ss.10.5. Title Policies..........................................92
ss.10.6. Certificates of Insurance...............................92
ss.10.7. Hazardous Waste Assessments.............................93
ss.10.8. Opinion of Counsel Concerning Organization
and Loan Documents......................................93
ss.10.9. Tax and Securities Law Compliance.......................93
ss.10.10. Guaranties..............................................93
ss.10.11. Certifications from Government Officials;
UCC-11 Reports..........................................93
ss.10.12. Proceedings and Documents...............................94
ss.10.13. Fees....................................................94
ss.10.14. Closing Certificate; Compliance Certificate.............94
ss.10.15. Existing Indebtedness...................................94
ss.10.16. Subsequent Guarantors...................................94
ss.11. CONDITIONS TO ALL BORROWINGS.....................................94
ss.11.1 Representations True; No Event of Default;
Compliance Certificate................................95
ss.11.2 No Legal Impediment...................................95
ss.11.3 Governmental Regulation...............................95
ss.12. EVENTS OF DEFAULT; ACCELERATION; ETC.............................95
ss.12.1. Events of Default and Acceleration....................95
ss.12.2. Termination of Commitments............................99
ss.12.3. Remedies.............................................100
ss.13. SETOFF .........................................................100
ss.14. THE AGENT ......................................................101
ss.14.1. Authorization..........................................101
ss.14.2. Employees and Agents...................................102
ss.14.3. No Liability...........................................102
ss.14.4. No Representations.....................................102
ss.14.5. Payments...............................................103
ss.14.6. Holders of Revolving Credit Notes......................104
ss.14.7. Indemnity..............................................104
ss.14.8. Agent as Lender........................................104
ss.14.9. Notification of Defaults and Events of Default.........104
ss.14.10. Duties in the Case of Enforcement......................104
ss.14.11. Successor Agent........................................105
ss.14.12. Notices................................................106
ss.15. EXPENSES .......................................................106
ss.16. INDEMNIFICATION.................................................107
ss.17. SURVIVAL OF COVENANTS, ETC......................................107
ss.18. ASSIGNMENT; PARTICIPATIONS; ETC.................................108
ss.18.1. Conditions to Assignments by Lenders...................108
ss.18.2. Certain Representations and Warranties;
Limitations; Covenants.................................109
ss.18.3. Register...............................................110
ss.18.4. New Revolving Credit Notes.............................110
ss.18.5. Participations.........................................110
ss.18.6. Pledge by Lender.......................................111
ss.18.7. No Assignment by Borrowers.............................111
ss.18.8 Disclosure.............................................111
ss.18.9. Syndication............................................111
ss.19. NOTICES, ETC....................................................111
ss.20. GOVERNING LAW; CONSENT TO JURISDICTION
AND SERVICE.....................................................112
ss.21. HEADINGS .......................................................113
ss.22. COUNTERPARTS....................................................113
ss.23. ENTIRE AGREEMENT, ETC...........................................113
ss.24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS..................113
ss.25. CONSENTS, AMENDMENTS, WAIVERS, ETC..............................114
ss.26. SEVERABILITY....................................................115
<PAGE>
EXHIBITS
--------
A Form of Revolving Credit Note
B Form of Subsidiary Guaranty
C Form of Revolving Credit Loan Request
D Form of Compliance Certificate
E Form of Closing Certificate
F Form of Assignment and Assumption Agreement
G Competitive Bid Note
H Competitive Bid Quote Request
I Invitation for Competitive Bid Quotes
J Competitive Bid Quote
K Notice of Acceptance or Non-acceptance
L Form of Notice of Continuation/Conversion
<PAGE>
Schedules to Revolving Credit Agreement
---------------------------------------
SCHEDULE 1.1 Borrowing Subsidiaries
SCHEDULE EG List of Eligible Ground Leases As Of The Closing Date
SCHEDULE 1.2 Lenders' Commitments
SCHEDULE 6.1(b) Capitalization; Outstanding Securities, Etc.
SCHEDULE 6.3 Partially Owned Real Estate Holding Entities
SCHEDULE 6.7 Litigation
SCHEDULE 6.15 Certain Transactions
SCHEDULE 6.19 Subsidiaries
SCHEDULE 8.3(d) Existing Investments
SCHEDULE 8.3(f) Investments
<PAGE>
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of the 6th day of August,
1997, by and among CALI REALTY, L.P., a Delaware limited partnership ("CRLP"),
having its principal place of business at 11 Commerce Drive, Cranford, New
Jersey 07016, THE SUBSIDIARIES OF CRLP LISTED ON SCHEDULE 1.1 HERETO (each a
"Borrower Subsidiary", and together with CRLP, collectively referred to herein
as the "Borrowers" and individually as a "Borrower"), each with a jurisdiction
of organization and a principal place of business as set forth in Schedule 1.1,
FLEET NATIONAL BANK ("Fleet"), a national banking association having its
principal place of business at 111 Westminster Street, Providence, Rhode Island
02903, and the other lending institutions party hereto or which may become
parties hereto pursuant to ss.18 (individually, a "Lender" and collectively, the
"Lenders") and FLEET NATIONAL BANK, as agent for itself and each other Lender.
RECITALS
A. The Borrowers are primarily engaged in the business of owning,
purchasing, developing, constructing, renovating and operating office,
office/flex, industrial/warehouse and multifamily residential
properties in the United States.
B. Cali Realty Corporation, a Maryland corporation ("CRC"), is the sole
general partner of CRLP, holds in excess of 89% of the partnership interests in
CRLP, and is qualified to elect REIT status for income tax purposes and has
agreed to guaranty the obligations of the Borrowers hereunder.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ss.1. DEFINITIONS AND RULES OF INTERPRETATION.
ss.1.1. Definitions. The following terms shall have the meanings set
forth in this ss.1 or elsewhere in the provisions of this Agreement referred to
below:
Absolute Competitive Bid Loan. See ss.2A.3(a).
Accountants. In each case, nationally-recognized, independent certified
public accountants reasonably acceptable to the Agent. The Lenders hereby
acknowledge that Price Waterhouse LLP and the other so-called "big six"
accounting firms are acceptable accountants.
Adjusted Unencumbered Property NOI. With respect to any fiscal period
for any Unencumbered Property, the net income of such Unencumbered Property
during such period, as determined in accordance with GAAP, before deduction of
(a) gains (or losses)
- 1 -
<PAGE>
from debt restructurings or other extraordinary items relating to such
Unencumbered Property (b) minority interests, not inconsistent with the
wholly-owned Subsidiary requirements for Unencumbered Properties and (c) income
taxes; plus (x) interest expense relating to such Unencumbered Property and (y)
depreciation and amortization relating to such Unencumbered Property and (z) the
noncash portion of executive stock award rights and stock purchase rights
relating to the Unencumbered Property in question included in written executive
employment agreements, written employee plans or other written non-monetary
employment compensation provisions to the extent excluded from net income, as
determined in accordance with GAAP; minus a recurring capital expense reserve
equal to four percent (4%) of total revenue of such Unencumbered Property for
such period.
Affiliate. With reference to any Person, (i) any director or executive
officer of that Person, (ii) any other Person controlling, controlled by or
under direct or indirect common control of that Person, (iii) any other Person
directly or indirectly holding 10% or more of any class of the capital stock or
other equity interests (including options, warrants, convertible securities and
similar rights) of that Person (other than a mutual fund which owns 10% or more
of the common stock of CRC) and (iv) any other Person 10% or more of any class
of whose capital stock or other equity interests (including options, warrants,
convertible securities and similar rights) is held directly or indirectly by
that Person.
Agent. Fleet National Bank acting as agent for the Lenders, or any
successor agent, as permitted by ss.14.
Agent's Head Office. The Agent's head office located at 111 Westminster
Street, Providence, Rhode Island 02903, or at such other location as the Agent
may designate from time to time pursuant to ss.19 hereof, or the office of any
successor Agent permitted under ss.14 hereof.
Agreement. This Revolving Credit Agreement, including the Schedules and
Exhibits hereto, as the same may be from time to time amended and in effect.
Applicable L/C Percentage. As of any date of determination, a per annum
percentage equal to the Applicable Margin for Revolving Credit LIBOR Rate Loans
then in effect.
Applicable Margin. The applicable margin (if any) over the then Prime
Rate or LIBOR Rate, as applicable to the Revolving Credit Loan(s) in question,
as set forth below, which is used in calculating the interest rate applicable to
Revolving Credit Loans and which shall vary from time to time in accordance with
CRLP's long-term unsecured, non-credit enhanced debt ratings, if any. The
Applicable Margin to be used in calculating the interest rate applicable to
Prime Rate Loans or Revolving Credit LIBOR Rate Loans shall vary from time to
time in accordance with CRLP's then applicable (if any) (x) Moody's debt rating,
(y) S&P's debt rating and (z) any Third Debt Rating, as set forth below in this
definition, and the Applicable Margin shall be adjusted effective on the next
Business Day following any change in CRLP's Moody's debt rating or S&P's debt
rating or Third Debt Rating, as the
- 2 -
<PAGE>
case may be. CRLP shall notify the Agent in writing promptly after becoming
aware of any change in any of its debt ratings. In order to qualify for an
Applicable Margin based upon a debt rating, CRLP shall obtain and maintain debt
ratings from at least two (2) nationally recognized rating agencies reasonably
acceptable to the Agent, one of which must be Moody's or S&P so long as such
Persons are in the business of providing debt ratings for the REIT industry;
provided that until such time as CRLP obtains two debt ratings or if CRLP fails
to maintain at least two debt ratings, the Applicable Margin shall be based upon
an S&P rating of less than BBB- in the table below. In addition, CRLP may, at
its option, obtain and maintain three debt ratings (of which one must be from
Moody's or S&P except as set forth in the previous sentence). If at any time of
determination of the Applicable Margin, (a) CRLP has then current debt ratings
from two (2) rating agencies, then the Applicable Margin shall be based on the
lower of such ratings, or (b) CRLP has then current debt ratings from three (3)
rating agencies, then the Applicable Margin shall be based on the lower of the
two highest ratings. The applicable debt ratings and the Applicable Margins are
set forth in the following table:
<TABLE>
<CAPTION>
===================================================================================================================
APPLICABLE APPLICABLE
MARGIN MARGIN
FOR REVOLVING CREDIT FOR PRIME RATE LOANS
S&P RATING MOODY'S RATING THIRD RATING LIBOR RATE LOANS
===================================================================================================================
<S> <C> <C> <C> <C>
No rating or less than
No rating or less No rating or less BBB-/Baa3 equivalent 1.25% 0%
than BBB- than Baa3
- -------------------------------------------------------------------------------------------------------------------
BBB- Baa3 BBB-/Baa3 equivalent 1.10% 0%
- -------------------------------------------------------------------------------------------------------------------
BBB Baa2 BBB/Baa2 equivalent 1.00% 0%
- -------------------------------------------------------------------------------------------------------------------
BBB+ Baa1 BBB+/Baa1 equivalent 0.90% 0%
- -------------------------------------------------------------------------------------------------------------------
A- or higher A3 or higher A-/A3 equivalent 0.75% 0%
or higher
===================================================================================================================
</TABLE>
Assignment and Assumption. See ss.18.1.
Borrower Representative. CRLP, acting on behalf of all of the
Borrowers. The Agent and the Lenders shall be entitled to rely, and all of the
Borrowers hereby agree that the Agent and the Lenders may so rely, on any notice
given or received or action taken or not taken by CRLP as being authorized by
each of the Borrowers.
Borrower Subsidiary. A wholly-owned Subsidiary of CRLP which is a
Borrower hereunder.
Borrowers. As defined in the preamble hereto.
Budgeted Project Costs. With respect to Construction-In-Process, the
budgeted project cost of such Construction-In-Process shown on schedules
submitted to the Agent from time to time; provided that for
Construction-In-Process owned by any Partially-Owned Entity, the Budgeted
Project Cost of such Construction-In-Process shall be the applicable
- 3 -
<PAGE>
Borrower's pro-rata share of the budgeted project cost of such
Construction-In-Process (based on the greater of (x) such Borrower's percentage
equity interest in such Partially-Owned Entity or (y) the Borrower's obligation
to provide or liability for providing funds to such Partially-Owned Entity).
Building. Individually and collectively, the buildings, structures and
improvements now or hereafter located on the Real Estate.
Business Day. Any day on which banking institutions in Boston,
Massachusetts and New York, New York are open for the transaction of banking
business and, in the case of LIBOR Rate Loans, also a day which is a LIBOR
Business Day.
Capitalized Leases. Leases under which any Borrower or any of its
Subsidiaries or any Partially-Owned Entity is the lessee or obligor, the
discounted future rental payment obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with
GAAP.
Capitalized Unencumbered Property NOI. As of any date of determination
with respect to an Unencumbered Property, an amount equal to the Revised
Adjusted Unencumbered Property NOI for such Unencumbered Property for the most
recent two (2) complete fiscal quarters multiplied by two (2), with the product
being divided by ten percent (10%).
CERCLA. See ss.6.18.
Closing Date. ___________, 1997, which is the date on which all of the
conditions set forth in ss.10 have been satisfied.
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Commitment. With respect to each Lender, the amount set forth from time
to time on Schedule 1.2 hereto as the amount of such Lender's Commitment to make
Revolving Credit Loans to, and to participate in the issuance, extension and
renewal of Letters of Credit for the account of, the Borrowers.
Commitment Fee. See ss.2.4(e).
Commitment Percentage. With respect to each Lender, the percentage set
forth on Schedule 1.2 hereto as such Lender's percentage of the Total Commitment
and any changes thereto from time to time.
Competitive Bid Loan Accounts. See ss.2A.2(a).
- 4 -
<PAGE>
Competitive Bid Loans Election. The election by the Borrowers
Representative in writing delivered to the Agent at any one time, on or after
the date CRLP has received an Investment Grade Credit Rating from two nationally
recognized rating agencies reasonably acceptable to the Agent (one of which must
be Moody's or S&P so long as such Persons are in the business of providing debt
ratings to the REIT industry), to access the Competitive Bid Loans pursuant to
ss. 2A of this Agreement.
Competitive Bid Loans. A borrowing hereunder consisting of one or more
loans made by any of the participating Lenders whose offer to make a Competitive
Bid Loan as part of such borrowing has been accepted by the Borrower
Representative under the auction bidding procedure described in ss.2A hereof.
Competitive Bid Margin. See ss.2A.5(b)(iv).
Competitive Bid Notes. See ss.2A.2(b).
Competitive Bid Quote. An offer by a Lender to make a Competitive Bid
Loan in accordance with ss.2A.5 hereof.
Competitive Bid Quote Request. See ss.2A.3.
Competitive Bid Rate. See ss.2A.5(b)(v).
Completed Revolving Credit Loan Request. A loan request accompanied by
all information required to be supplied under the applicable provisions of
ss.2.5.
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of CRC and its
subsidiaries (including the Borrowers and the Subsidiary Guarantors) or CRLP and
its subsidiaries, as the case may be, consolidated in accordance with GAAP.
Consolidated Adjusted Net Income. For any period, an amount equal to
the consolidated net income of CRC, the Borrowers and their respective
Subsidiaries for such period, as determined in accordance with GAAP, before (a)
gains (or losses) from the sale of real property or interests therein, debt
restructurings and other extraordinary items, (b) minority interest of said
Persons in other Persons and (c) income taxes; plus (x) interest expense, (y)
depreciation and amortization and (z) the noncash portion of executive stock
award rights and stock purchase rights included in written executive employment
agreements, written employee plans or other written non-monetary employment
compensation provisions minus a recurring capital expense reserve in an amount
equal to four percent (4%) of consolidated total revenue of CRC, the Borrowers
and their respective Subsidiaries; all after adjustments for unconsolidated
partnerships, joint ventures and other entities.
- 5 -
<PAGE>
Consolidated Capitalized NOI. As of any date of determination, an
amount equal to Revised Consolidated Adjusted Net Income for the most recent two
(2) completed fiscal quarters multiplied by two (2), with the product being
divided by ten percent (10%).
Consolidated Secured Indebtedness. As of any date of determination, the
aggregate principal amount of all Indebtedness of CRC, the Borrowers and their
respective Subsidiaries outstanding at such date secured by a Lien on the Real
Estate of such Person, without regard to Recourse.
Consolidated Tangible Net Worth. As of any date of determination, the
Consolidated Capitalized NOI minus Consolidated Total Liabilities.
Consolidated Total Debt Service. For any fiscal period, without
double-counting, (a) Consolidated Total Interest Expense for such period plus
(b) the aggregate amount of scheduled principal payments of Indebtedness
(excluding (x) optional prepayments and (y) balloon payments at maturity)
required to be made during such period by CRC, the Borrowers and any of their
respective Subsidiaries plus (c) the aggregate amount of capitalized interest
required in accordance with GAAP to be paid or accrued by CRC, the Borrowers and
their respective Subsidiaries during such quarter.
Consolidated Total Interest Expense. For any fiscal period, the
aggregate amount of interest required in accordance with GAAP to be paid or
accrued, without double-counting, by CRC, the Borrowers and their respective
Subsidiaries during such period on all Indebtedness of CRC, the Borrowers and
their respective Subsidiaries outstanding during all or any portion of such
period, whether such interest was or is required to be reflected as an item of
expense or capitalized, including payments consisting of interest expenses in
respect of any "synthetic lease" referred to in the definition of
"Indebtedness."
Consolidated Total Liabilities. As of any date of determination,
without double-counting, all liabilities of CRC, the Borrowers and their
respective Subsidiaries determined on a consolidated basis in accordance with
GAAP and classified as such on the consolidated balance sheet of CRC, the
Borrowers and their respective Subsidiaries, and all Indebtedness of CRC, the
Borrowers and their respective Subsidiaries, whether or not so classified.
Consolidated Total Unsecured Debt Service. For any fiscal period,
Consolidated Total Debt Service with respect to Consolidated Unsecured
Indebtedness only for such period.
Consolidated Unsecured Indebtedness. As of any date of determination,
the aggregate principal amount of all Unsecured Indebtedness of CRC, the
Borrowers and their respective Subsidiaries outstanding at such date, including
without limitation the aggregate principal amount of all the Obligations under
this Agreement as of such date, determined on a consolidated basis in accordance
with GAAP, without regard to Recourse.
- 6 -
<PAGE>
Construction-In-Process. Any Real Estate for which any Borrower, any
Guarantor, any of the Borrower's Subsidiaries or any Partially-Owned Entity is
actively pursuing construction, renovation, or expansion of Buildings and,
except for purposes of the covenant set forth in ss.9.6 hereof, for which
construction is proceeding to completion without undue delay from Permit denial,
construction delays or otherwise, all pursuant to such Person's ordinary course
of business. Notwithstanding the foregoing, tenant improvements to previously
constructed and/or leased Real Estate shall not be considered
Construction-In-Process.
Conversion Request. A notice given by the Borrower Representative to
the Agent of its election to convert or continue a Revolving Credit Loan in
accordance with ss.2.6.
CRC Guaranty. The Guaranty dated as of the date hereof made by CRC in
favor of the Agent and the Lenders pursuant to which CRC guarantees to the Agent
and the Lenders the unconditional payment and performance of the Obligations.
Credit Parties. Collectively, the Borrowers, the Operating
Subsidiaries, CRC, the Subsidiary Guarantors and any other wholly-owned
Subsidiary for which a Borrower or CRC has legal liability for such wholly-owned
Subsidiary's obligations and liabilities, directly or indirectly.
Daily Unused Commitment. The daily difference between (a) $400,000,000
and (b) the sum of the principal amount of Revolving Credit Loans outstanding
plus the Maximum Drawing Amount for each such day hereunder.
Default. As of the relevant time of determination, an event or
occurrence which solely with the giving of notice or the lapse of time, or both,
would constitute an Event of Default.
Disqualifying Environmental Event. Any Release or threatened Release of
Hazardous Substances, any violation of Environmental Laws or any other similar
environmental event with respect to any Real Estate (x) that causes either the
occupancy or rent of such Real Estate to be adversely affected by greater than
ten percent (10%), as compared to what otherwise would have been the occupancy
or rent of such Real Estate in the absence of such environmental event or (y)
for which the remaining costs of remediation in order to bring such Real Estate
into compliance with Environmental Laws exceeds the greater of $1,000,000 or
1.5% of the Capitalized Unencumbered Property NOI of the Real Estate that is the
particular Unencumbered Property in issue ("Remediation"); provided that (1) any
Real Estate that qualifies under (x) and (y) which requires Remediation shall
only be eligible to be an Unencumbered Property if such Remediation is ongoing
in accordance with prudent environmental practice and (2) the number of
Unencumbered Properties subject to Remediation shall not exceed the greater of
(i) five Buildings (and related land) or (ii) the number of Buildings (and
related land) that are two and one-half percent (2-1/2%) of the
- 7 -
<PAGE>
total number of Buildings constituting all of the Buildings in Unencumbered
Properties at any time.
Distribution.
(i) with respect to any Borrower, any distribution of cash or
other cash equivalent, directly or indirectly, to the partners or other
equity interest holders of such Borrower in respect of such partnership
or other equity interest or interests so characterizable; or any other
distribution on or in respect of any partnership interests of any
Borrower;
(ii) with respect to CRC, the declaration or payment of any
dividend on or in respect of any shares of any class of capital stock
of CRC, other than dividends payable solely in shares of common stock
by CRC; the purchase, redemption, or other retirement of any shares of
any class of capital stock of CRC, directly or indirectly through a
Subsidiary of CRC or otherwise; the return of capital by CRC to its
shareholders as such; or any other distribution on or in respect of any
shares of any class of capital stock of CRC; and
(iii) any transfer in the ordinary course of business of cash
and cash equivalent among the Borrowers, Guarantors and their
respective Subsidiaries.
Dollars or $. Dollars in lawful currency of the United States of
America.
Drawdown Date. The date on which any Revolving Credit Loan is made or
is to be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with ss.2.6.
Duff & Phelps. Duff & Phelps, and its successors.
Eligible Assignee. Any of (a) a commercial bank organized under the
laws of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (b) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having total assets in excess
of $1,000,000,000, calculated in accordance with GAAP; (c) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having total assets in excess of
$1,000,000,000, provided that such bank is acting at all times with respect to
this Agreement through a branch or agency located in the United States of
America and (d) a financial institution reasonably acceptable to the Agent which
is regularly engaged in making, purchasing or investing in loans and having
total assets in excess of $300,000,000.
- 8 -
<PAGE>
Eligible Ground Lease. A ground lease that (a) has a minimum remaining
term of thirty (30) years, including tenant controlled options, as of any date
of determination, (b) has customary notice rights, default cure rights,
bankruptcy new lease rights and other customary provisions for the benefit of a
leasehold mortgagee, and (c) is otherwise acceptable for non-Recourse leasehold
mortgage financing under customary prudent lending requirements. The Eligible
Ground Leases as of the date of this Agreement are listed on Schedule EG.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. See ss.6.18(a).
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
any Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a LIBOR Rate
Loan, the weighted average of the rates (expressed as a decimal) at which all of
the Lenders subject thereto would be required to maintain reserves under
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor or similar regulations relating to such reserve requirements) against
"Eurocurrency Liabilities" (as that term is used in Regulation D), if such
liabilities were outstanding. The Eurocurrency Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in the Eurocurrency
Reserve Rate.
Event of Default. See ss.12.1.
Financial Statement Date. With respect to any Borrower or CRC, December
31, 1996.
Fitch. Fitch Investors Service, Inc., and its successors.
Fronting Bank. Fleet, or with the consent of the Agent and the Borrower
Representative, another Lender.
- 9 -
<PAGE>
Funds from Operations. With respect to any fiscal period of CRC, an
amount, without double-counting, equal to the consolidated net income (or loss)
of CRC and its Subsidiaries, as determined in accordance with GAAP, before
deduction of minority interest and real estate related depreciation and
amortization, and excluding gains (or losses) from the sale of real property or
interests therein, debt restructurings or other extraordinary items, and after
adjustments for unconsolidated partnerships, joint ventures or other entities
(such adjustments to be calculated to reflect Funds from Operations on the same
basis, to the extent that such Funds from Operations attributable to
unconsolidated partnerships, joint ventures and other entities are not subject
to the claims of any other Person).
GAAP. Generally accepted accounting principles in effect from time to
time in the United States, consistently applied, provided that a certified
public accountant would, insofar as the use of such accounting principles is
pertinent, be in position to deliver an unqualified opinion as to financial
statements in which such principles have been properly applied .
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by any Borrower or any
Guarantor, as the case may be, or any ERISA Affiliate of any of them the
benefits of which are guaranteed on termination in full or in part by the PBGC
pursuant to Title IV of ERISA, other than a Multiemployer Plan.
Guaranties. Collectively, the CRC Guaranty and any other guaranty of
the Obligations made by an Affiliate of a Borrower in favor of the Agent and the
Lenders, excluding the Limited Guaranties.
Guarantors. Collectively, CRC and any other Affiliate of a Borrower
executing a Guaranty, excluding, the Limited Guarantors; provided, however, when
the context so requires, Guarantor shall refer to CRC or such Affiliate, as
appropriate. Any Guarantor that is the owner or ground lessee of an Unencumbered
Property shall be a wholly-owned Subsidiary. Provided further, however, from and
after the release of the Guaranty of any Subsidiary Guarantor pursuant to ss.5
below, such Subsidiary Guarantor shall no longer be considered a "Guarantor" for
purposes of this Agreement.
Harborside Assumed Debt. (i) The Indebtedness to be owed by one or more
of CRLP and certain of its Subsidiaries to Northwestern Mutual Insurance Company
and Principal Mutual Life Insurance Company in the original principal amount of
$110,000,000, and (ii) the Indebtedness to be owed by one or more of CRC, CRLP
and certain of its Subsidiaries to US West Pension Trust, Investment Management
Company in the original principal amount of $42,087,513.
Harborside Debt. The Indebtedness incurred by CRLP pursuant to the
Revolving Credit Facility Agreement dated as of November 1, 1996, among CRLP,
the several lenders
- 10 -
<PAGE>
from time to time parties thereto, and PSC, as administrative agent for such
lenders, as the same may be amended, supplemented or otherwise modified from
time to time.
Harborside Pledge Agreements. Collectively, (i) the pledge agreement
between CRC and PSC, as the administrative agent, and (ii) the pledge agreement
between CRLP and PSC, as the administrative agent, in each case (a) securing the
Harborside Debt in connection with the Harborside Transaction, and (b) as the
same may be amended, supplemented or otherwise modified from time to time.
Harborside Pledged Interests. Collectively, (i) the 99% limited
partnership interest owned by CRLP in each of Cali Harborside (Fee) Associates
L.P., a New Jersey limited partnership, Cal-Harbor II & II Urban Renewal
Associates L.P., a New Jersey limited partnership, Cal-Harbor IV Urban Renewal
Associates L.P., a New Jersey limited partnership, Cal-Harbor V Urban Renewal
Associates L.P., a New Jersey limited partnership, Cal-Harbor VI Urban Renewal
Associates L.P., a New Jersey limited partnership, Cal-Harbor So. Pier Urban
Renewal Associates L.P., a New Jersey limited partnership, Cal-Harbor No. Pier
Urban Renewal Associates L.P., a New Jersey limited partnership, and Cal-Harbor
VII Urban Renewal Associates L.P., a New Jersey limited partnership; and (ii)
100% of the issued and outstanding capital stock owned by CRC of each of Cali
Sub X, Inc., a Delaware corporation, and Cali Sub XI, Inc., a Delaware
corporation, in each case pledged to PSC, as the administrative agent, pursuant
to the Harborside Pledge Agreements.
Harborside Transaction. (i) The acquisition by CRLP and certain of its
Subsidiaries of the real property, buildings and other improvements thereon
commonly known as the Harborside Financial Center, Jersey City, New Jersey, (ii)
the incurrence of the Harborside Debt, and (iii) the incurrence of the
Harborside Assumed Debt.
Hazardous Substances. See ss.6.18(b).
Indebtedness. All obligations, contingent and otherwise, that in
accordance with GAAP should be classified upon the obligor's balance sheet as
liabilities, including, without limitation, (a) all obligations for borrowed
money and similar monetary obligations, whether direct or indirect; (b) all
liabilities secured by any mortgage, pledge, negative pledge, security interest,
lien, charge, or other encumbrance existing on property owned or acquired
subject thereto, whether or not the liability secured thereby shall have been
assumed; (c) all obligations under any Capitalized Lease (determined in
accordance with ss.9.11) or any lease (a "synthetic lease") which is treated as
an operating lease under GAAP and as a loan or financing for U.S. income tax
purposes; and (d) all guarantees for borrowed money, endorsements and other
contingent obligations, whether direct or indirect, (without double counting and
in accordance with ss.9.11) in respect of indebtedness or obligations of others,
including any obligation to supply funds (including partnership obligations and
capital requirements) to or in any manner to invest in, directly or indirectly,
the debtor, to purchase indebtedness, or to assure the owner of indebtedness
against loss, through an agreement to
- 11 -
<PAGE>
purchase goods, supplies, or services for the purpose of enabling the debtor to
make payment of the indebtedness held by such owner or otherwise, and the
obligations to reimburse the issuer in respect of any letters of credit.
Interest Payment Date. (i) As to any Prime Rate Loan, the last day of
the calendar month which includes the Drawdown Date thereof; and (ii) as to any
Revolving Credit LIBOR Rate Loan in respect of which the Interest Period is (A)
3 months or less, the last day of such Interest Period and (B) more than 3
months, the date that is 3 months from the first day of such Interest Period,
each date that is 3 month thereafter, and, in addition, the last day of such
Interest Period.
Interest Period. With respect to each Loan, (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the following periods (as selected by the Borrowers in a Completed Revolving
Credit Loan Request or as otherwise in accordance with the terms of this
Agreement): (i) for any Prime Rate Loan, the last day of the calendar month,
(ii) for any Revolving Credit LIBOR Rate Loan, 1, 2, 3, 6 or 12 months (provided
that (x) the Interest Period for Revolving Credit LIBOR Rate Loans may be
shorter than 1 month in order to consolidate 2 or more Revolving Credit LIBOR
Rate Loans and (y) the Interest Period for all Revolving Credit LIBOR Rate Loans
shall be 1 month until the earlier of 90 days after the Closing Date or the date
on which Fleet completes the syndication of the Total Commitment, as evidenced
by written notice from Fleet to the Borrower Representative as to such
completion), (iii) for any Absolute Competitive Bid Loan, from [7] to [180]
days, and (iv) for any LIBOR Competitive Bid Loan, [1], [2], [3] or [6] months;
and (b) thereafter, each period commencing at the end of the last day of the
immediately preceding Interest Period applicable to such Loan and ending on the
last day of the applicable period set forth in (a) above as selected by the
Borrowers in a Conversion Request or as otherwise in accordance with this
Agreement; provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(A) if any Interest Period with respect to a Prime Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
(B) if any Interest Period with respect to a LIBOR Rate Loan
would otherwise end on a day that is not a Business Day, that Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end
on the immediately preceding Business Day;
(C) if the Borrowers shall fail to give a Conversion Request
as provided in ss.2.6, the Borrowers shall be deemed to have requested
a continuation of the affected Revolving Credit LIBOR Rate Loan as a
Revolving Credit LIBOR Rate Loan with an Interest Period of 1 month on
the last day of the then current Interest Period with respect thereto,
other than during the continuance of a Default or an Event of Default;
- 12 -
<PAGE>
(D) any Interest Period relating to any LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall, subject to subparagraph (E)
below, end on the last Business Day of a calendar month; and
(E) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date.
Investment Grade Credit Rating. A long-term unsecured, non-credit
enhanced debt rating (a) from Moody's of Baa3 or higher, (b) from S&P of BBB- or
higher, or (c) from a Third Rating Agency of the Baa3/BBB- equivalent or higher.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise, but without double-counting): (i) for the
acquisition of stock, partnership or other equity interests or Indebtedness of,
or for loans, advances, capital contributions or transfers of property to, any
Person; and (ii) for the acquisition of any other obligations of any Person. In
determining the aggregate amount of Investments outstanding at any particular
time: (a) there shall be included as an Investment all interest accrued with
respect to Indebtedness constituting an Investment unless and until such
interest is paid; (b) there shall be deducted in respect of each such Investment
any amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution); (c)
there shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise, except
that accrued interest included as provided in the foregoing clause (a) may be
deducted when paid; and (d) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Leases. Leases, licenses and agreements, whether written or oral,
relating to the use or occupation of space in or on the Buildings or on the Real
Estate by persons other than the Borrower, its Subsidiaries or any
Partially-Owned Entity provided that "Leases" shall include any such lease,
license or other such agreement with a Partially-Owned Entity if such lease,
license or other agreement is at a market level rent and related tenant charges,
which are required to be paid monthly or, in the case of non-rent tenant
charges, when usually and customarily required to be paid by other tenants of
the same Real Estate (and at least annually).
Lenders. Collectively, the Agent, any other lenders which may provide
additional commitments and become parties to this Agreement, and any other
Person who becomes an assignee of any rights of a Lender pursuant to ss.18 or a
Person who acquires all or substantially all of the stock or assets of a Lender.
Letter of Credit. See ss.3.1.1.
- 13 -
<PAGE>
Letter of Credit Application. See ss.3.1.1.
Letter of Credit Fee. See ss.3.6.
Letter of Credit Participation. See ss.3.1.4.
LIBOR Breakage Costs. With respect to any LIBOR Rate Loan to be prepaid
or not drawn after elected, a prepayment "breakage" fee in an amount determined
by the Agent in the following manner:
(i) First, the Agent shall determine the
amount by which (a) the total amount of interest
which would have otherwise accrued hereunder on each
installment of principal prepaid or not so drawn,
during the period beginning on the date of such
prepayment or failure to draw and ending on the last
day of the applicable LIBOR Rate Loan Interest Period
(the "Reemployment Period"), exceeds (b) the total
amount of interest which would accrue, during the
Reemployment Period, on any readily marketable bond
or other obligation of the United States of America
designated by the Agent in its sole discretion at or
about the time of such payment, such bond or other
obligation of the United States of America to be in
an amount equal (as nearly as may be) to the amount
of principal so paid or not drawn after elected and
to have maturity at the end of the Reemployment
Period, and the interest to accrue thereon to take
account of amortization of any discount from par or
accretion of premium above par at which the same is
selling at the time of designation. Each such amount
is hereinafter referred to as an "Installment
Amount".
(ii) Second, each Installment Amount shall
be treated as payable on the last day of the LIBOR
Rate Loan Interest Period which would have been
applicable had such principal installment not been
prepaid or not borrowed.
(iii) Third, the amount to be paid on each
such breakage date shall be the present value of the
Installment Amount determined by discounting the
amount thereof from the date on which such
Installment Amount is to be treated as payable, at
the same yield to maturity as that payable upon the
bond or other obligation of the United States of
America designated as aforesaid by the Agent.
If by reason of an Event of Default the
Agent elects to declare a LIBOR Rate Loan to be
immediately due and payable, then any breakage fee
with respect to such LIBOR Rate Loan shall become due
- 14 -
<PAGE>
and payable in the same manner as though the
Borrowers had exercised such right of prepayment.
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London.
LIBOR Competitive Bid Loan(s). See ss.2A.3(a).
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan,
the rate of interest per annum (rounded upward, if necessary, to the nearest
1/16 of one percent) as determined on the basis of the offered rates for
deposits in Dollars for a period of time comparable to such Interest Period
which appears on the Telerate page 3750 (or such other page as may replace that
page on the Telerate service) as of 11:00 a.m. London time on the date that is
two (2) LIBOR Business Days prior to the beginning of such Interest Period;
provided, however, if the rate described above does not appear on the Telerate
System on any applicable interest determination date, the LIBOR Rate shall be
the rate (rounded upwards as described above, if necessary) for deposits in
Dollars for a period of time substantially equal to the Interest Period which
appears on the Reuters Page "LIBO" (or such other page as may replace the LIBO
Page on that service for the purpose of displaying such rates), as of 11:00 a.m.
London time on the date that is two (2) LIBOR Business Days prior to the
beginning of such Interest Period.
If both the Telerate and Reuters systems are unavailable, then the rate
for that date will be determined on the basis of the offered rates for deposits
in Dollars for a period of time comparable to the Interest Period which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time on the date that is two (2) LIBOR Business Days prior to
the beginning of such Interest Period. The principal London office of each of
the four major London banks will be requested to provide a quotation of its
Dollar deposit offered rate. If at least two such quotations are provided, the
rate for that date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in Dollars to leading
European banks for a period of time comparable to the Interest Period by major
banks in New York City at approximately 11:00 a.m. New York City time on the
date that is two (2) LIBOR Business Days prior to the beginning of such Interest
Period. In the event that the Agent is unable to obtain any quotation as
provided above, it will be deemed that the LIBOR Rate cannot be determined.
In the event that the Board of Governors of the Federal Reserve System
shall impose a reserve requirement with respect to LIBOR deposits of the
Lenders, then for any period during which such reserve requirement shall apply,
the LIBOR Rate shall be equal to the amount determined above divided by an
amount equal to one (1.00) minus the Eurocurrency Reserve Rate.
- 15 -
<PAGE>
LIBOR Rate Loan(s). Loans bearing interest calculated by reference to
the LIBOR Rate.
Lien. See ss.8.2.
Limited Guaranties. See ss.5.2.
Limited Guarantors. See ss.5.2.
Loan Documents. Collectively, this Agreement, the Letter of Credit
Applications, the Letters of Credit, the Notes, the Guaranties, and any and all
other agreements, instruments or documents now or hereafter identified thereon
as a "Loan Document" under this Agreement, and all schedules, exhibits and
annexes hereto or thereto, as the same may from time to time be amended and in
effect.
Loans. The Revolving Credit Loans and the Competitive Bid Loans.
Majority Lenders. As of any date, the Lenders whose aggregate
Commitments constitute at least fifty-one percent (51%) of the Total Commitment,
but in no event fewer than two Lenders if there are three or more Lenders;
provided that if the Total Commitment has been terminated by the Lenders and no
Revolving Credit Loans or Letters of Credit are outstanding, the Majority
Lenders shall be the Lenders holding fifty-one percent (51%) of the outstanding
principal amount of Competitive Bid Loans on such date.
Material Adverse Effect. Any event or occurrence of whatever nature
which: (a) has a material adverse effect on the business, properties, operations
or financial condition of (i) any Borrower or (ii) any Guarantor or (iii) the
Borrowers, the Guarantors and their respective Subsidiaries, taken as a whole,
(b) has a material adverse effect on the ability of any Borrower or any
Guarantor to perform its payment and other material obligations under any of the
Loan Documents, or (c) causes a material impairment of the validity or
enforceability of any of the Loan Documents or any material impairment of the
rights, remedies and benefits available to the Agent and the Lenders under any
of the Loan Documents.
Maturity Date. August 7, 2000, or such earlier date on which the Loans
shall become due and payable pursuant to the terms thereof. The Borrowers may,
by notice to the Agent given at least one hundred and twenty (120) days prior to
the Maturity Date, request a one-year extension of the Maturity Date, the
approval of which shall require Unanimous Lender Approval. Any such extension,
if given by Unanimous Lender Approval, shall require that the Borrowers pay an
aggregate extension fee equal to 0.15% of the Total Commitment (without regard
to the proviso clause in the definition thereof).
- 16 -
<PAGE>
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
maximum aggregate amount may be reduced from time to time pursuant to the terms
of the Letters of Credit.
Moody's. Moody's Investors Service, Inc., and its successors.
Multiemployer Plan. Any multiemployer plan within the meaning of
ss.3(37) of ERISA maintained or contributed to by any Borrower or any Guarantor
as the case may be or any ERISA Affiliate.
Non-Material Breach. A (i) breach of a representation or warranty or
covenant contained in ss.6 or ss.7 (other than ss.7.1), (ii) a breach of any
other representation or warranty or covenant as to which such term "Non-Material
Breach" is specifically applied, or (iii) a Permitted Event; but only to the
extent any such breach under (i) or (ii) or an event under (iii) (other than
ss.7.1), neither (A) singularly or in conjunction with any other existing
breaches or (iii) events, materially adversely affect the business, properties
or financial condition of (x) CRC; (y) CRLP; or (z) the Borrowers, Guarantors
and their Subsidiaries, taken as whole nor (B) singularly or in conjunction with
any other existing breaches or (iii) events, materially adversely affect the
ability of (x) CRC; (y) CRLP; or the (z) Borrowers, Guarantors and their
Subsidiaries, taken as a whole, to fulfill the obligations to the Lenders under
the Loans (including, without limitation, the repayment of all amounts
outstanding under the Loans, together with interest and charges thereon, when
first due) nor (C) has been identified in this Agreement specifically as a
matter that does not constitute a Non-Material Breach. During the continuance of
any Permitted Event, the Real Estate (including Unencumbered Property) and other
assets of any affected Borrower or Guarantor shall be excluded from asset (but
not liability) and income (but not loss) calculation under ss.9 which exclusions
shall be evidenced in all compliance certificates provided as required by this
Agreement.
A Non-Material Breach shall be identified when first known to any
Borrower, Guarantor or Subsidiary on the next delivered compliance certificate
required to be delivered to the Lenders pursuant to the terms of this Agreement.
Notes. The Revolving Credit Notes and the Competitive Bid Notes.
Obligations. All indebtedness, obligations and liabilities of the
Borrowers and their Subsidiaries to any of the Lenders and the Agent,
individually or collectively, under this Agreement or any of the other Loan
Documents or in respect of any of the Loans or the Notes or Reimbursement
Obligations incurred or the Letter of Credit Applications or the Letters of
Credit or other instruments at any time evidencing any thereof, whether existing
on the date of this Agreement or arising or incurred hereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation
of law or otherwise.
- 17 -
<PAGE>
Operating Subsidiaries. Those Subsidiaries of a Borrower that, at any
time of reference, provide management, construction, design or other services
(excluding any such Subsidiary which may provide any such services which are
only incidental to that Subsidiary's ownership of one or more Real Estate) but
including, in any case, [list specified Operating Subsidiaries - Borrower to
provide], and any successors or assigns of their respective businesses and/or
assets which are Subsidiaries of the Borrowers or the Guarantors.
Partially-Owned Entity(ies). Any of the partnerships, joint ventures
and other entities owning real estate assets in which CRLP and/or CRC
collectively, directly or indirectly through its full or partial ownership of
another entity, own less than 100% of the equity interests, whether or not such
entity is required in accordance with GAAP to be consolidated with CRLP for
financial reporting purposes.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permits. All governmental permits, licenses, and approvals necessary
for the lawful operation and maintenance of the Real Estate.
Permitted Event. The exclusion of a Borrower (other than CRLP) or a
Guarantor (other than CRC) or any other Subsidiary or Operating Subsidiary as a
Credit Party by the Borrower Representative solely for the purposes of the
proceedings of a bankruptcy filed by or against such Person and involving for
all creditors of such bankruptcy a total Indebtedness which is in an amount
permitted within ss.12.1(f)(i) cumulatively with any other then pending
Permitted Event or other matter affecting ss.12.1(f)(i). For purposes of a
Permitted Event, the term "bankruptcy" shall include all actions or proceedings
described in ss.12.1(g) or ss.12.1(h). The Borrower Representative may exercise
the provisions of ss.12.1 (last paragraph) for Permitted Event(s) provided such
exercise shall not allow for a breach of the limitation on Permitted Events
relating to ss.12.1(f)(i) or otherwise cause a Default or Event of Default.
Permitted Liens. Liens, security interests and other encumbrances
permitted by ss.8.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government (or any
governmental agency or political subdivision thereof).
Prime Rate. The higher of (a) the annual rate of interest announced
from time to time by Fleet at its head office in Boston, Massachusetts as its
"prime rate" or (b) one half of one percent (1/2%) above the overnight federal
funds effective rate as published by the Board of Governors of the Federal
Reserve System, as in effect from time to time. Any change in the Prime Rate
during an Interest Period shall result in a corresponding change on the same day
in the rate of interest accruing from and after such day on the unpaid balance
of principal of
- 18 -
<PAGE>
the Prime Rate Loans, if any, applicable to such Interest Period, effective on
the day of such change in the Prime Rate.
Prime Rate Loans. Those Revolving Credit Loans bearing interest
calculated by reference to the Prime Rate.
PSC. Prudential Securities Credit Corporation, and its successors and
assigns.
RCRA. See ss.6.18.
Real Estate. The fixed and tangible properties consisting of land,
buildings and/or other improvements owned or ground-leased as a lessee by any
Borrower, by any Guarantor or by any other entity in which a Borrower is the
holder of an equity interest at the relevant time of reference thereto,
including, without limitation, (i) the Unencumbered Properties at such time of
reference, and (ii) the real estate assets owned or ground-leased as a lessee by
each of the Partially-Owned Entities at such time of reference.
Record. The grid attached to any Note, or the continuation of such
grid, or any other similar record, including computer records, maintained by any
Lender with respect to any Loan.
Recourse. With reference to any obligation or liability, any liability
or obligation that is not Without Recourse to the obligor thereunder, directly
or indirectly. For purposes hereof, a Person shall not be deemed to be
"indirectly" liable for the liabilities or obligations of an obligor solely by
reason of the fact that such Person has an ownership interest in such obligor,
provided that such Person is not otherwise legally liable, directly or
indirectly, for such obligor's liabilities or obligations (e.g., by reason of a
guaranty or contribution obligation, by operation of law or by reason of such
Person's being a general partner of such obligor).
Reimbursement Obligation. The Borrowers' obligation to reimburse the
Lenders and the Agent and the Fronting Bank on account of any drawing under any
Letter of Credit as provided in ss.3.2. Notwithstanding the foregoing, unless
the Borrowers shall notify the Agent of their intent to repay the Reimbursement
Obligation on the date of the related drawing under any Letter of Credit as
provided in ss.3.2, such Reimbursement Obligation shall simultaneously with such
drawing be converted to and become a Prime Rate Loan as set forth in ss.3.3.
REIT. A "real estate investment trust", as such term is defined in
Section 856 of the Code.
Release. See ss.6.18(c)(iii).
- 19 -
<PAGE>
Required Lenders. As of any date, the Lenders whose aggregate
Commitments constitute at least sixty-six and two-thirds percent (66 2/3%) of
the Total Commitment; provided that if the Total Commitment has been terminated
by the Lenders and no Revolving Credit Loans or Letters of Credit are
outstanding, the Required Lenders shall be the Lenders holding sixty-six and
two-thirds percent (66 2/3%) of the outstanding principal amount of the
Competitive Bid Loans on such date.
Revised Adjusted Unencumbered Property NOI. With respect to any fiscal
period for any Unencumbered Property, Adjusted Unencumbered Property NOI for
such Unencumbered Property for such period; minus (a) interest income relating
to such Unencumbered Property and (b) a management fee reserve in an amount
equal to three percent (3%) of total revenue (after deduction of interest income
of such Unencumbered Property for such period); plus (i) actual general and
administrative expenses to the extent included in Adjusted Unencumbered Property
NOI relating to such Unencumbered Property for such period and (ii) actual
management fees relating to such Unencumbered Property for such period.
Revised Consolidated Adjusted Net Income. For any period, Consolidated
Adjusted Net Income for such period; minus (a) interest income and (b) a
management fee reserve in an amount equal to three percent (3%) of consolidated
total revenue (after deduction of interest income of CRC, the Borrowers and
their respective Subsidiaries for such period), plus (i) actual general and
administrative expenses for such period to the extent included in Consolidated
Adjusted Net Income and (ii) actual management fees relating to Real Estate for
such period.
Revolving Credit LIBOR Rate Loan. A Revolving Credit Loan which is a
LIBOR Rate Loan.
Revolving Credit Loan(s). Each and every revolving credit loan made or
to be made by the Lenders to the Borrowers pursuant to ss.2.
Revolving Credit Notes. Collectively, the separate promissory notes of
the Borrowers in favor of each Lender in substantially the form of Exhibit A
hereto, in the aggregate principal amount of $400,000,000, dated as of the date
hereof or as of such later date as any Person becomes a Lender under this
Agreement, and completed with appropriate insertions, as each of such notes may
be amended and/or restated from time to time.
Revolving Credit Note Record. A Record with respect to the Revolving
Credit Notes.
S&P. Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc.,
and its successors.
SARA. See ss.6.18.
- 20 -
<PAGE>
SEC Filings. Collectively, (a) the CRC's Annual Report on Form 10-K for
the year ended December 31, 1996, filed with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), (b) CRC's Current Report on Form 8-K, dated
January 31, 1997, filed with the SEC pursuant to the Exchange Act, including all
amendments thereto and (c) CRC's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997 filed with the SEC pursuant to the Exchange Act.
subsidiary. Any entity required to be consolidated with its direct or
indirect parent in accordance with GAAP.
Subsidiary. Any corporation, association, partnership, trust, or other
business entity of which the designated parent shall at any time own directly,
or indirectly through a Subsidiary or Subsidiaries, at least a majority (by
number of votes or controlling interests) of the outstanding voting interests or
at least a majority of the economic interests (including, in any case, the
Operating Subsidiaries and any entity required to be consolidated with its
designated parent in accordance with GAAP).
Subsidiary Guarantor. Any Guarantor other than CRC or the Limited
Guarantors.
Subsidiary Guaranty. The form of Guaranty to be entered into by any
Subsidiary Guarantor substantially in the form of Exhibit B hereto.
Third Debt Rating. CRLP's long term unsecured debt rating from a Third
Rating Agency.
Third Rating Agency. Duff & Phelps, Fitch's or another
nationally-recognized rating agency (other than S&P or Moody's) reasonably
satisfactory to the Agent.
Title Policies. For each Unencumbered Property, an ALTA standard form
title policy (or, if such form is not available, an equivalent form of title
insurance policy) of a reasonably current date or endorsed down to a reasonably
current date issued by a nationally-recognized title insurance company, insuring
that a Borrower or a Subsidiary Guarantor holds good and clear marketable fee
simple or leasehold title to such Unencumbered Property, subject only to
Permitted Liens.
Total Commitment. As of any date, the sum of the then-current
Commitments of the Lenders, provided that the Total Commitment shall not at any
time exceed the lesser of: (i) $400,000,000 or (ii) the amount that is the
maximum amount that permits compliance with the terms of ss.9.
Type. As to any Revolving Credit Loan, its nature as a Prime Rate Loan
or a LIBOR Rate Loan.
- 21 -
<PAGE>
Unanimous Lender Approval. The written consent of each Lender that is a
party to this Agreement at the time of reference.
Unencumbered Property. Any Real Estate located in the United States
that on any date of determination: (a) is not subject to any Liens (including
any such Lien imposed by the organizational documents of the owner of such
asset, but excluding Permitted Liens), (b) is not the subject of a Disqualifying
Environmental Event, (c) has been improved with a Building or Buildings which
(1) have been issued a certificate of occupancy (where available) or is
otherwise lawfully occupied for its intended use, and (2) are fully operational,
including in each case, an Unencumbered Property that is being renovated and
such renovation is proceeding to completion without undue delay from Permit
denial, construction delays or otherwise, (d) is not in violation of the
covenant set forth in ss.7.9 hereof, and (e) is wholly owned or ground-leased
under an Eligible Ground Lease by a Borrower or a Guarantor that is a
wholly-owned Subsidiary.
Unhedged Variable Rate Debt. Indebtedness of CRC, the Borrowers and
their respective Subsidiaries for borrowed money including, to the extent
applicable, the Obligations, which bears interest at one or more variable rates
and is not subject to an interest rate hedging arrangement having a minimum term
of one (1) year and having other terms reasonably acceptable to the Agent.
Uniform Customs. With respect to any Letter of Credit, the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, or any successor version thereof
adopted by the Agent in the ordinary course of its business as a letter of
credit issuer and in effect at the time of issuance of such Letter of Credit.
Unimproved Non-Income Producing Land. Any Real Estate consisting of raw
land which is unimproved by Buildings and does not generate any rental income or
other income for CRC or the Borrowers or any of their respective Subsidiaries.
Unrestricted Cash and Cash Equivalents. As of any date of
determination, the sum of (a) the aggregate amount of unrestricted cash then
held by the Borrowers or any of their respective Subsidiaries and (b) the
aggregate amount of unrestricted cash equivalents (valued at fair market value)
then held by the Borrowers or any of their respective Subsidiaries. As used in
this definition, (i) "unrestricted" means the specified asset is not subject to
any Liens in favor of any Person and (ii) "cash equivalents" includes overnight
deposits and also means that such asset has a liquid, par value in cash and is
convertible to cash within 3 months. Notwithstanding anything contained herein
to the contrary, the term Unrestricted Cash and Cash Equivalents shall not
include the Commitments of the Lenders to make Loans under this Agreement or any
other commitments from which the access to such cash or cash equivalents would
create Indebtedness.
- 22 -
<PAGE>
Unsecured Indebtedness. All Indebtedness of any Person that is not
secured by a Lien on any asset of such Person.
wholly-owned Subsidiary. Any Subsidiary (a) of which CRLP and/or CRC
shall at any time own directly or indirectly through a Subsidiary or
Subsidiaries at least a controlling majority (by number of votes or controlling
interests) of the outstanding voting interests and one hundred percent (100%) of
the economic interests, of which at least ninety-five percent (95%) of the
economic interests shall be owned by CRLP and (b) of which CRC directly or
indirectly (through wholly-owned Subsidiaries) acts as sole general partner or
managing member; provided that the Subsidiary Guarantors shall be wholly-owned
Subsidiaries.
"Without Recourse" or "without recourse". With reference to any
obligation or liability, any obligation or liability for which the obligor
thereunder is not liable or obligated other than as to its interest in a
designated Real Estate or other specifically identified asset only, subject to
such limited exceptions to the non-recourse nature of such obligation or
liability, such as fraud, misappropriation, misapplication and environmental
indemnities, as are usual and customary in like transactions involving
institutional lenders at the time of the incurrence of such obligation or
liability.
ss.1.2. Rules of Interpretation.
(i) A reference to any document or agreement
shall include such document or agreement as amended,
modified or supplemented from time to time in
accordance with its terms (and so amended, modified
or supplemented in accordance with this Agreement) or
the terms of this Agreement.
(ii) The singular includes the plural and
the plural includes the singular.
(iii) A reference to any law includes any
amendment or modification to such law.
(iv) A reference to any Person includes its
permitted successors and permitted assigns.
(v) Accounting terms (a) not otherwise
defined herein have the meanings assigned to them by
GAAP applied on a consistent basis by the accounting
entity to which they refer and (b) shall not provide
for double counting of items included within such
term.
(vi) The words "include", "includes" and
"including" are not limiting.
- 23 -
<PAGE>
(vii) All terms not specifically defined
herein or by GAAP, which terms are defined in the
Uniform Commercial Code as in effect in New York,
have the meanings assigned to them therein.
(viii) Reference to a particular "ss."
refers to that section of this Agreement unless
otherwise indicated.
(ix) The words "herein", "hereof",
"hereunder" and words of like import shall refer to
this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
(x) Any provision granting any right to the
any Borrower or Guarantor during the continuance of
(a) an Event of Default shall not modify, limit,
waive or estopp the rights of the Lenders during the
continuance of such Event of Default, including the
rights of the Lenders to accelerate the Loans under
ss.12.1 and the rights of the Lenders under
ss.ss.12.2 or 12.3, or (b) a Default, shall not
extend the time for curing same or modify any
otherwise applicable notice regarding same.
(xi) As applied to Real Estate, the word
"owns" includes the ownership of the fee interest in
such Real Estate or the tenant's interest in a ground
lease of such Real Estate.
ss.2. THE REVOLVING CREDIT FACILITY.
ss.2.1. Commitment to Lend. Subject to the provisions of ss.2.5 and the
other terms and conditions set forth in this Agreement, each of the Lenders
severally agrees to lend to the Borrowers and the Borrowers may borrow, repay,
and reborrow from each Lender from time to time from the Closing Date up to but
not including the Maturity Date upon notice by the Borrower Representative to
the Agent given in accordance with ss.2.5 hereof, such sums as are requested by
the Borrower Representative up to a maximum aggregate principal amount
outstanding (after giving effect to all amounts requested) at any one time equal
to such Lender's Commitment minus such Lender's Commitment Percentage of the
Maximum Drawing Amount; provided that the sum of the outstanding amount of the
Revolving Credit Loans (after giving effect to all amounts requested) and the
Competitive Bid Loans plus the Maximum Drawing Amount shall not at any time
exceed the Total Commitment in effect at such time.
The Revolving Credit Loans shall be made pro rata in accordance with
each Lender's Commitment Percentage. Each request for a Revolving Credit Loan
made pursuant to ss.2.5 hereof shall constitute a representation and warranty by
the Borrowers that the conditions set forth in ss.10 have been satisfied as of
the Closing Date and that the conditions set forth in ss.11 have been satisfied
on the date of such request and will be satisfied on the proposed
- 24 -
<PAGE>
Drawdown Date of the requested Revolving Credit Loan, provided that the making
of such representation and warranty by the Borrowers shall not limit the right
of any Lender not to lend if such conditions have not been met. No Revolving
Credit Loan shall be required to be made by any Lender unless all of the
conditions contained in ss.10 have been satisfied as of the Closing Date and all
of the conditions set forth in ss.11 have been met at the time of any request
for a Revolving Credit Loan. Notwithstanding the foregoing, the Borrowers shall
be able to borrow under this Agreement during the occurrence of a Default or an
Event of Default arising solely from the Borrowers' failure to comply with the
provisions of ss.7.22 if such borrowing is to cure, and will cure, such Default
or Event of Default without causing any other Default or Event of Default.
ss.2.2. [Intentionally Omitted]
ss.2.3. The Revolving Credit Notes. The Revolving Credit Loans shall be
evidenced by the Revolving Credit Notes. A Revolving Credit Note shall be
payable to the order of each Lender in an aggregate principal amount equal to
such Lender's Commitment. The Borrowers irrevocably authorize each Lender to
make or cause to be made, at or about the time of the Drawdown Date of any
Revolving Credit Loan or at the time of receipt of any payment of principal on
such Lender's Revolving Credit Notes, an appropriate notation on such Lender's
Revolving Credit Note Record reflecting the making of such Revolving Credit Loan
or (as the case may be) the receipt of such payment. The outstanding amount of
the Revolving Credit Loans set forth on such Lender's Revolving Credit Note
Record shall be prima facie evidence of the principal amount thereof owing and
unpaid to such Lender, but the failure to record, or any error in so recording,
any such amount on such Lender's Revolving Credit Note Record shall not limit or
otherwise affect the obligations of the Borrowers hereunder or under any
Revolving Credit Note to make payments of principal of or interest on any
Revolving Credit Note when due. The Agent hereby agrees to provide the Borrower
Representative with a statement concerning the outstanding amount of the
Revolving Credit Loans, in reasonable detail, on a monthly basis. Although each
Revolving Credit Note shall be dated the Closing Date, interest in respect
thereof shall be payable only for the periods during which the Revolving Credit
Loans evidenced thereby to the Borrowers are outstanding, and although the
stated amount of such Revolving Credit Notes shall be equal to the Total
Commitment as of the date hereof, such Revolving Credit Notes shall be
enforceable, with respect to obligations of the Borrowers to pay the principal
amount thereof, only to the extent of the unpaid principal amount of the
Revolving Credit Loans to them as of any date of determination.
ss.2.4. Interest on Revolving Credit Loans; Fees.
(a) Interest on Prime Rate Loans. Each Prime Rate Loan shall
bear interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto (unless
earlier paid in accordance with ss.2.9) at a rate equal to the Prime Rate plus
the Applicable Margin for Prime Rate Loans, if any.
- 25 -
<PAGE>
(b) Interest on Revolving Credit LIBOR Rate Loans. Each
Revolving Credit LIBOR Rate Loan shall bear interest for the period commencing
with the Drawdown Date thereof and ending on the last day of the Interest Period
with respect thereto (unless earlier paid in accordance with ss.2.9) at a rate
equal to the LIBOR Rate determined for such Interest Period plus the Applicable
Margin for Revolving Credit LIBOR Rate Loans.
(c) Interest Payments. The Borrowers jointly and severally
unconditionally promise to pay interest on each Revolving Credit Loan in arrears
on each Interest Payment Date with respect thereto.
(d) Closing Fee. The Borrowers jointly and severally agree to
pay to the Agent a closing fee (the "Closing Fee") as set forth in that certain
letter agreement dated June 5, 1997 herewith between the Borrower Representative
and the Agent.
(e) Commitment Fee. From and after the date hereof until the
earliest of (i) the Maturity Date, (ii) the date on which the Commitments
terminate, or (iii) the Borrower Representative makes the Competitive Bid Loans
Election, the Borrowers jointly and severally agree to pay to the Agent, for the
accounts of the Lenders in accordance with their respective Commitment
Percentages, a commitment fee in an amount equal to either: (i) one-fourth of
one percent (0.25%) per annum on the Daily Unused Commitment, if the Daily
Unused Commitment exceeds 66 2/3% of the Total Commitment (without regarding to
the proviso clause in the definition thereof), (ii) one-fifth of one percent
(0.20%) per annum on the Daily Unused Commitment, if the Daily Unused Commitment
exceeds 33 1/3% of the Total Commitment (without regarding to the proviso clause
in the definition thereof) but is less than or equal to 66 2/3% of the Total
Commitment (without regarding to the proviso clause in the definition thereof),
or (iii) one-eighth of one percent (0.125%) per annum on the Daily Unused
Commitment, if the Daily Unused Commitment is less than or equal to 33 1/3% of
the Total Commitment (without regarding to the proviso clause in the definition
thereof), in each case calculated during each calendar quarter or portion
thereof for the first calendar quarter of the term of this Agreement and the
last calendar quarter of the term of this Agreement, if either of same is not a
full calendar quarter from the date hereof to the Maturity Date (the "Commitment
Fee"). The Commitment Fee shall be payable quarterly in arrears on the fifteenth
(15th) day of each January, April, July and October quarter for the immediately
preceding calendar quarter commencing on the first such date following the
Closing Date, with a final payment on the earliest of (i) Maturity Date, (ii)
any earlier date on which the Commitments shall terminate or (iii) the Borrower
Representative makes the Competitive Bid Loans Election.
(f) Facility Fee. From and after the date on which the Borrower
Representative makes the Competitive Bid Loans Election, the Borrowers jointly
and severally agree to pay to the Agent, for the account of the Lenders based on
their respective Commitment Percentages, a fee (the "Facility Fee"), accruing at
a per annum rate equal to 0.15% per annum of the Total Commitment (without
regard to the proviso clause at the end of the definition thereof), such fee
being payable quarterly, in arrears, on the fifteenth (15th) day of
- 26 -
<PAGE>
each January, April, July, and October, commencing on the first such day of the
calendar quarter next succeeding the date on which the Borrower Representative
makes having the Competitive Bid Loans Election. Upon the Borrower
Representative's having made the Competitive Bid Loans Election, the Facility
Fee shall be in lieu of the Commitment Fee for the remaining term of this
Agreement.
(g) Agent's Fee. The Borrowers shall pay to the Agent an Agent's fee as
set forth in that certain letter agreement of even date herewith between the
Borrower Representative and the Agent.
ss.2.5. Requests for Revolving Credit Loans.
The following provisions shall apply to each request by the Borrowers
for a Revolving Credit Loan:
(i) The Borrower Representative shall submit a Completed
Revolving Credit Loan Request to the Agent as provided in this ss.2.5.
Except as otherwise provided herein, each Completed Revolving Credit
Loan Request shall be in a minimum amount of $2,000,000 or an integral
multiple of $500,000 in excess thereof. Each Completed Revolving Credit
Loan Request shall be irrevocable and binding on the Borrowers and
shall obligate the Borrowers to accept the Revolving Credit Loans
requested from the Lenders on the proposed Drawdown Date, unless such
Completed Revolving Credit Loan Request is withdrawn (x) in the case of
a request for a Revolving Credit LIBOR Rate Loan, at least three (3)
Business Days prior to the proposed Drawdown Date for such Revolving
Credit Loan, and (y) in the case of a request for a Prime Rate Loan, at
least one (1) Business Day prior to the proposed Drawdown Date for such
Revolving Credit Loan.
(ii) Each Completed Revolving Credit Loan Request may be
delivered by the Borrower Representative to the Agent by 11:00 a.m.
(New York City time) on any Business Day, and at least one (1) Business
Day prior to the proposed Drawdown Date of any Prime Rate Loan, and at
least three (3) Business Days prior to the proposed Drawdown Date of
any Revolving Credit LIBOR Rate Loan.
(iii) Each Completed Revolving Credit Loan Request shall
include a completed writing in the form of Exhibit C hereto specifying:
(1) the principal amount of the Revolving Credit Loan requested, (2)
the proposed Drawdown Date of such Revolving Credit Loan, (3) the
Interest Period applicable to such Revolving Credit Loan, and (4) the
Type of such Revolving Credit Loan being requested.
(iv) No Lender shall be obligated to fund any Revolving Credit
Loan unless:
- 27 -
<PAGE>
(a) a Completed Revolving Credit Loan Request has
been timely received by the Agent as provided in subsection
(i) above; and
(b) both before and after giving effect to the
Revolving Credit Loan to be made pursuant to the Completed
Revolving Credit Loan Request, all of the conditions contained
in ss.10 shall have been satisfied as of the Closing Date and
all of the conditions set forth in ss.11 shall have been met,
including, without limitation, the condition under ss.11.1
that there be no Default or Event of Default under this
Agreement (provided that notwithstanding the foregoing, the
Borrowers shall be able to borrow under this Agreement during
the occurrence of a Default or an Event of Default arising
solely from the Borrowers' failure to comply with the
provisions of ss.7.22 if such borrowing is to cure, and will
cure, such Default or Event of Default without causing any
other Default or Event of Default; and
(c) the Agent shall have received a certificate in
the form of Exhibit D hereto signed by the chief financial
officer or treasurer or other thereon designated officer of
the Borrower Representative setting forth computations
evidencing compliance with the covenants contained in
ss.ss.9.1 and 9.9 on a pro forma basis after giving effect to
such requested Revolving Credit Loan (including, to the extent
necessary to evidence compliance thereunder, the estimated
results for all Real Estate to be acquired with the proceeds
of such requested Revolving Credit Loan), and, certifying
that, both before and after giving effect to such requested
Revolving Credit Loan, no Default or Event of Default exists
or will exist under this Agreement or any other Loan Document
(other than a Default or Event of Default arising solely from
the Borrowers' failure to comply with ss.7.22 as permitted in
the proviso at the end of clause (b) above), and that after
taking into account such requested Revolving Credit Loan, no
Default or Event of Default will exist as of the Drawdown Date
or thereafter.
(v) The Agent will cause the Completed Revolving Credit Loan
Request to be delivered to each Lender in accordance with ss.14.12 and
in any event on the same day or the Business Day following the day a
Completed Revolving Credit Loan Request is received by the Agent.
ss.2.6. Conversion Options.
(a) The Borrowers may elect from time to time by delivering a
Conversion Request in the form of Exhibit L to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, provided that (i) with
respect to any such conversion of a Revolving Credit LIBOR Rate Loan to a Prime
Rate Loan, the Borrower Representative shall give the Agent at least three (3)
Business Days prior written notice of such election; (ii) with respect to any
such conversion of a Prime Rate Loan to a Revolving
- 28 -
<PAGE>
Credit LIBOR Rate Loan, the Borrower Representative shall give the Agent at
least three (3) LIBOR Business Days prior written notice of such election; (iii)
with respect to any such conversion of a Revolving Credit LIBOR Rate Loan into a
Prime Rate Loan, such conversion shall only be made on the last day of the
Interest Period with respect thereto unless the Borrowers pay the related LIBOR
Breakage Costs at the time of such conversion and (iv) no Revolving Credit Loan
may be converted into a Revolving Credit LIBOR Rate Loan when any Default or
Event of Default has occurred and is continuing. All or any part of outstanding
Revolving Credit Loans of any Type may be converted into a Revolving Credit Loan
of another Type as provided herein, provided that any partial conversion shall
be in an aggregate principal amount of $2,000,000 or a integral multiple of
$500,000 in excess thereof. Each Conversion Request relating to the conversion
of a Prime Rate Loan to a Revolving Credit LIBOR Rate Loan shall be irrevocable
by the Borrowers.
(b) Any Revolving Credit Loan of any Type may be continued as
such upon the expiration of the Interest Period with respect thereto (i) in the
case of Prime Rate Loans, automatically and (ii) in the case of Revolving Credit
LIBOR Rate Loans by compliance by the Borrower Representative with the notice
provisions contained in ss.2.6(a) or (c); provided that no Revolving Credit
LIBOR Rate Loan may be continued as such when any Default or Event of Default
has occurred and is continuing but shall be automatically converted to a Prime
Rate Loan on the last day of the first Interest Period relating thereto ending
during the continuance of any Default or Event of Default. The Agent shall
notify the Lenders promptly when any such automatic conversion contemplated by
this ss.2.6(b) is scheduled to occur.
(c) In the event that the Borrower Representative does not
notify the Agent of its election hereunder with respect to the continuation of
any Revolving Credit LIBOR Rate Loan as such, the affected Revolving Credit
LIBOR Rate Loan shall automatically be continued as a Revolving Credit LIBOR
Rate Loan with an Interest Period of 1 month at the end of the applicable
Interest Period other than during the continuance of a Default of Event of
Default. In such event, the Borrowers shall be deemed to have requested a
Revolving Credit LIBOR Rate Loan hereunder and shall be subject to all
provisions of this Agreement relating to LIBOR Rate Loans, including, without
limitation, those set forth in ss.ss.4.5, 4.6, and 4.8 hereof.
(d) The Borrowers may not request or elect a Revolving Credit
LIBOR Rate Loan pursuant to ss.2.5, elect to convert a Prime Rate Loan to a
Revolving Credit LIBOR Rate Loan pursuant to ss.2.6(a), elect to continue a
Revolving Credit LIBOR Rate Loan pursuant to ss.2.6(b) or have continued a
Revolving Credit LIBOR Rate Loan pursuant to ss.2.6(c) if, after giving effect
thereto, there would be greater than eight (8) Revolving Credit LIBOR Rate Loans
then outstanding. Any Loan Request for a Revolving Credit LIBOR Rate Loan that
would create greater than eight (8) Revolving Credit LIBOR Rate Loans
outstanding shall be deemed to be a Loan Request for a Prime Rate Loan.
- 29 -
<PAGE>
ss.2.7. Funds for Revolving Credit Loans.
(a) Subject to the other provisions of this ss.2, not later
than 12:00 p.m. (New York City time) on the proposed Drawdown Date of any
Revolving Credit Loan, each of the Lenders will make available to the Agent, at
the Agent's Head Office, in immediately available funds, the amount of such
Lender's Commitment Percentage of the amount of the requested Revolving Credit
Loan; provided that each Lender shall provide notice to the Agent of its intent
not to make available its Commitment Percentage of any requested Revolving
Credit Loan as soon as possible after receipt of any Completed Revolving Credit
Loan Request, and in any event not later than 4:00 p.m. (New York City time) on
(x) the Business Day prior to the Drawdown Date of any requested Prime Rate Loan
and (y) the third Business Day prior to the Drawdown Date of any requested
Revolving Credit LIBOR Rate Loan. Upon receipt from each Lender of such amount,
the Agent will make available to the Borrowers, in the Borrower Representative's
account with the Agent or as otherwise directed to the Agent by the Borrower
Representative, the aggregate amount of such Revolving Credit Loan made
available to the Agent by the Lenders; all such funds received by the Agent by
12:00 p.m. (New York City time) on any Business Day will be made available to
the Borrowers not later than 2:00 p.m. on the same Business Day. Funds received
after such time will be made available by not later than 12:00 p.m. on the next
Business Day. The Agent hereby agrees to promptly provide the Borrower
Representative with a statement confirming the particulars of each Revolving
Credit LIBOR Rate Loan, in reasonable detail, when each such Loan is made. The
failure or refusal of any Lender to make available to the Agent at the aforesaid
time and place on any Drawdown Date the amount of its Commitment Percentage of
the requested Revolving Credit Loan shall not relieve any other Lender from its
several obligation hereunder to make available to the Agent the amount of its
Commitment Percentage of any requested Revolving Credit Loan but in no event
shall the Agent (in its capacity as Agent) have any obligation to make any
funding or shall any Lender be obligated to fund more than its Commitment
Percentage of the requested Revolving Credit Loan or to increase its Commitment
Percentage on account of such failure or otherwise.
(b) The Agent may, unless notified to the contrary by any
Lender prior to a Drawdown Date, assume that such Lender has made available to
the Agent on such Drawdown Date the amount of such Lender's Commitment
Percentage of the Revolving Credit Loan to be made on such Drawdown Date, and
the Agent may (but it shall not be required to), in reliance upon such
assumption, make available to the Borrowers a corresponding amount. If any
Lender makes available to the Agent such amount on a date after such Drawdown
Date, such Lender shall pay to the Agent on demand an amount equal to the
product of (i) the average, computed for the period referred to in clause (iii)
below, of the weighted average interest rate paid by the Agent for federal funds
acquired by the Agent during each day included in such period, multiplied by
(ii) the amount of such Lender's Commitment Percentage of such Revolving Credit
Loan, multiplied by (iii) a fraction, the numerator of which is the number of
days that elapsed from and including such Drawdown Date to the date on which the
amount of such Lender's Commitment Percentage of such
- 30 -
<PAGE>
Revolving Credit Loan shall become immediately available to the Agent, and the
denominator of which is 360. A statement of the Agent submitted to such Lender
with respect to any amounts owing under this paragraph shall be prima facie
evidence of the amount due and owing to the Agent by such Lender. If the amount
of such Lender's Commitment Percentage of such Revolving Credit Loans is not
made available to the Agent by such Lender within three (3) Business Days
following such Drawdown Date, the Agent shall be entitled to recover such amount
from the Borrowers on demand, with interest thereon at the rate per annum
applicable to the Revolving Credit Loans made on such Drawdown Date.
ss.2.8. Repayment of the Revolving Credit Loans at Maturity. The
Borrowers jointly and severally promise to pay on the Maturity Date, and there
shall become absolutely due and payable on the Maturity Date, all unpaid
principal of the Revolving Credit Loans outstanding on such date, together with
any and all accrued and unpaid interest thereon, the unpaid balance of the
Commitment Fee or Facility Fee accrued through such date, and any and all other
unpaid amounts due under this Agreement, the Revolving Credit Notes or any other
of the Loan Documents.
ss.2.9. Optional Repayments of Revolving Credit Loans. The Borrowers
shall have the right, at their election, to prepay the outstanding amount of the
Revolving Credit Loans, in whole or in part, at any time without penalty or
premium; provided that the outstanding amount of any Revolving Credit LIBOR Rate
Loans may not be prepaid unless the Borrowers pay any LIBOR Breakage Costs for
each Revolving Credit LIBOR Rate Loan so prepaid at the time of such prepayment.
The Borrower Representative shall give the Agent, no later than 11:00 a.m., New
York City time, at least one (1) Business Day's prior written notice of any
prepayment pursuant to this ss.2.9 of any Prime Rate Loans, and at least three
(3) LIBOR Business Days' notice of any proposed prepayment pursuant to this
ss.2.9 of Revolving Credit LIBOR Rate Loans, specifying the proposed date of
prepayment of Revolving Credit Loans and the principal amount to be prepaid.
Each such partial prepayment of the Revolving Credit Loans shall be in an amount
of $2,000,000 or integral multiple of $500,000 in excess thereof, or, if less,
the outstanding balance of the Revolving Credit Loans then being repaid, shall
be accompanied by the payment of all charges outstanding on all Revolving Credit
Loans so prepaid and of all accrued interest on the principal prepaid to the
date of payment, and shall be applied, in the absence of instruction by the
Borrower Representative, first to the principal of Prime Rate Loans and then to
the principal of Revolving Credit LIBOR Rate Loans, at the Agent's option.
ss.2A. COMPETITIVE BID LOANS.
ss.2A.1. The Competitive Bid Options. In addition to the Revolving
Credit Loans made pursuant to ss.2 hereof, and provided that the Borrower
Representative has made the Competitive Bid Loans Election and that at such time
CRLP maintains an Investment Grade Credit Rating from two nationally-recognized
rating agencies reasonably acceptable to the Agent (one of which must be Moody's
or S&P so long as such Persons are in the business of
- 31 -
<PAGE>
providing debt ratings for the REIT industry), the Borrowers may request
Competitive Bid Loans pursuant to the terms of this ss.2A. The Lenders may, but
shall have no obligation to, make such offers and the Borrower Representative
may, but shall have no obligation to, accept such offers in the manner set forth
in this ss.2A. Notwithstanding any other provision herein to the contrary, at no
time shall the aggregate principal amount of Competitive Bid Loans outstanding
at any time exceed the lesser of (a) the Total Commitment minus the sum of (i)
the aggregate outstanding principal amount of Revolving Credit Loans, plus (ii)
the Maximum Drawing Amount of Letters of Credit outstanding at such time, or (b)
$150,000,000.
ss.2A.2. Competitive Bid Loan Accounts: Competitive Bid Notes.
(a) The obligation of the Borrowers to repay the outstanding
principal amount of any and all Competitive Bid Loans, plus interest at the
applicable Competitive Bid Rate or the sum of the Competitive Bid Margin plus
the applicable LIBOR Rate (as the case may be) accrued thereon, shall be
evidenced by this Credit Agreement and by individual loan accounts (the
"Competitive Bid Loan Accounts" and individually, a "Competitive Bid Loan
Account") maintained by the Agent on its books for each of the Lenders, it being
the intention of the parties hereto that, except as provided for in paragraph
(b) of this ss.2A.2, the Borrowers' obligations with respect to Competitive Bid
Loans are to be evidenced only as stated herein and not by separate promissory
notes and shall hereby constitute an absolute promise to pay when due, without
notice, demand, presentment or setoff.
(b) Any Lender may at any time, and from time to time, request
that any Competitive Bid Loans outstanding to such Lender be evidenced by a
promissory note of the Borrowers in substantially the form of Exhibit G hereto
(each, a "Competitive Bid Note"), dated as of the Closing Date and completed
with appropriate insertions. One Competitive Bid Note shall be payable to the
order of each Lender in an amount equal to the principal amount of the
Competitive Bid Loan made by such Lender to the Borrowers, and representing the
obligation of the Borrowers to pay such Lender such principal amount or, if
less, the outstanding principal amount of any and all Competitive Bid Loans made
by such Lender, plus interest at the applicable Competitive Bid Rate or the sum
of the Competitive Bid Margin plus the applicable LIBOR Rate accrued thereon, as
set forth herein. Upon execution and delivery by the Borrowers of a Competitive
Bid Note, the Borrowers' obligation to repay any and all Competitive Bid Loans
made to them by such Lender and all interest thereon shall thereafter be
evidenced by such Competitive Bid Note.
(c) Each of the Borrowers irrevocably authorizes (i) each
Lender to make or cause to be made, in connection with a Drawdown Date of any
Competitive Bid Loan or at the time of receipt of any payment of principal on
such Lender's Competitive Bid Note in the case of a
- 32 -
<PAGE>
Competitive Bid Note, and (ii) the Agent to make or cause to be made, in
connection with a Drawdown Date of any Competitive Bid Loan or at the time of
receipt of any payment of principal on such Lender's Competitive Bid Loan
Account in the case of a Competitive Bid Loan Account, an appropriate notation
on such Lender's records or on the schedule attached to such Lender's
Competitive Bid Note or a continuation of such schedule attached thereto, or the
Agent's records, as applicable, reflecting the making of the Competitive Bid
Loan or the receipt of such payment (as the case may be) and may, prior to any
transfer of a Competitive Bid Note, endorse on the reverse side thereof the
outstanding principal amount of Competitive Bid Loans evidenced thereby. The
outstanding amount of the Competitive Bid Loans set forth on such Lender's
record or the Agent's records, as applicable, shall be prima facie evidence of
the principal amount thereof owing and unpaid to such Lender, but the failure to
record, or any error in so recording, any such amount shall not limit or
otherwise affect the obligations of the Borrowers hereunder to make payments of
principal of or interest on any Competitive Bid Loan when due.
ss.2A.3. Competitive Bid Quote Request; Invitation for Competitive Bid
Quotes.
(a) When the Borrower Representative wishes to request offers
to make Competitive Bid Loans under this ss.2A, it shall transmit to the Agent
by telex or facsimile a Competitive Bid Quote Request substantially in the form
of Exhibit H hereto (a "Competitive Bid Quote Request") so as to be received no
later than 11:00 a.m. (New York City time) (i) five (5) Business Days prior to
the requested Drawdown Date in the case of a Competitive Bid Loan bearing
interest calculated by reference to the LIBOR Rate (a "LIBOR Competitive Bid
Loan") or (ii) one (1) Business Day prior to the requested Drawdown Date in the
case of an Competitive Bid Loan bearing interest calculated by reference to a
fixed rate of interest (an "Absolute Competitive Bid Loan"), specifying:
(A) the requested Drawdown Date (which must be a
Business Day);
(B) the aggregate amount of such Competitive Bid
Loans, which shall be $5,000,000 or larger multiple of $1,000,000;
(C) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest Period; and
(D) whether the Competitive Bid Quotes requested are
for LIBOR Competitive Bid Loans or Absolute Competitive Bid Loans.
The Borrower Representative may request offers to make Competitive Bid Loans for
more than one Interest Period in a single Competitive Bid Quote Request. No new
Competitive Bid Quote Request shall be given until the Borrower Representative
has notified the Agent of its acceptance or non-acceptance of the Competitive
Bid Quotes relating to any outstanding Competitive Bid Quote Request.
(b) Promptly upon receipt of a Competitive Bid Quote Request
and payment by the Borrowers of a $2,000 auction fee to the Agent for its own
account, the Agent shall send to the Lenders by telecopy or facsimile
transmission an Invitation for
- 33 -
<PAGE>
Competitive Bid Quotes substantially in the form of Exhibit I hereto, which
shall constitute an invitation by the Borrowers to each Lender to submit
Competitive Bid Quotes in accordance with this ss.2A.
ss.2A.4. Alternative Manner of Procedure. If, after receipt by the
Agent and each of the Lenders of a Competitive Bid Quote Request from the
Borrower Representative in accordance with ss.2A.3, the Agent or any Lender
shall be unable to complete any procedure of the auction process described in
ss.ss.2A.5 through 2A.6 (inclusive) due to the inability of such Person to
transmit or receive communications through the means specified therein, such
Person may rely on telephonic notice for the transmission or receipt of such
communications. In any case where such Person shall rely on telephone
transmission or receipt, any communication made by telephone shall, as soon as
possible thereafter, be followed by written confirmation thereof.
ss.2A.5. Submission and Contents of Competitive Bid Quotes.
(a) Each Lender may, but shall be under no obligation to,
submit a Competitive Bid Quote containing an offer or offers to make Competitive
Bid Loans in response to any Competitive Bid Quote Request. Each Competitive Bid
Quote must comply with the requirements of this ss.2A.5 and must be submitted to
the Agent by telex or facsimile transmission at its offices as specified in or
pursuant to ss.19 not later than (i) 2:00 p.m. (New York City time) on the
fourth LIBOR Business Day prior to the proposed Drawdown Date, in the case of a
LIBOR Competitive Bid Loan or (ii) 10:00 a.m. (New York City time) on the
proposed Drawdown Date, in the case of an Absolute Competitive Bid Loan,
provided that Competitive Bid Quotes may be submitted by the Agent in its
capacity as a Lender only if it submits its Competitive Bid Quote to the
Borrower Representative not later than (x) one hour prior to the deadline for
the other Lenders, in the case of a LIBOR Competitive Bid Loan or (y) 15 minutes
prior to the deadline for the other Lenders, in the case of an Absolute
Competitive Bid Loan. Subject to the provisions of ss.ss.10 and 11 hereof, any
Competitive Bid Quote so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the Borrower Representative.
(b) Each Competitive Bid Quote shall be in substantially the
form of Exhibit J hereto and shall in any case specify:
(i) the proposed Drawdown Date;
(ii) the principal amount of the Competitive Bid Loan
for which each proposal is being made, which principal amount (i) may be greater
than or less than the Commitment of the quoting Lender, (ii) must be $1,000,000
or a larger multiple of $500,000, (iii) may not exceed the aggregate principal
amount of Competitive Bid Loans for which offers were requested and (iv) may be
subject to an aggregate limitation as to the principal amount of Competitive Bid
Loans for which offers being made by such quoting Lender may be accepted;
- 34 -
<PAGE>
(iii) the Interest Periods for which Competitive Bid
Quotes are being submitted;
(iv) in the case of a LIBOR Competitive Bid Loan, the
margin above or below the applicable LIBOR Rate (the "Competitive Bid Margin")
offered for each such Competitive Bid Loan, expressed as a percentage (specified
to the nearest 1/10,000th of 1%) to be added to or subtracted from such LIBOR
Rate;
(v) in the case of an Absolute Competitive Bid Loan,
the rate of interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Competitive Bid Rate") offered for each such Absolute Competitive Bid Loan; and
(vi) the identity of the quoting Lender.
A Competitive Bid Quote may include up to five (5) separate offers by the
quoting Lender with respect to each Interest Period specified in the related
Invitation for Competitive Bid Quotes.
(c) Any Competitive Bid Quote shall be disregarded if it:
(i) is not substantially in the form of Exhibit J
hereto;
(ii) contains qualifying, conditional or similar
language;
(iii) proposes terms other than or in addition to
those set forth in the applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in ss.2A.5(a)
hereof.
ss.2A.6. Notice to Borrower Representative. The Agent shall promptly
notify the Borrower Representative of the terms (a) of any Competitive Bid Quote
submitted by a Lender that is in accordance with ss.2A.5 and (b) of any
Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Agent unless such subsequent Competitive Bid Quote is
submitted solely to correct a manifest error in such former Competitive Bid
Quote and was received by the Agent within the time period required in
ss.2A.5(a) for receipt of Competitive Bid Quotes. The Agent's notice to the
Borrower Representative shall specify (i) the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each Interest
Period specified in the related Competitive Bid Quote Request, (ii) the
respective principal amounts and Competitive Bid Margins or Competitive Bid
Rates, as the case may be, so offered, and the identity of the respective
Lenders submitting such offers, and (iii) if applicable, limitations on the
aggregate principal
- 35 -
<PAGE>
amount of Competitive Bid Loans for which offers in any single Competitive Bid
Quote may be accepted.
ss.2A.7. Acceptance and Notice by Borrower Representative and Agent.
Not later than 11:00 a.m. (New York City time) on (a) the third Business Day
prior to the proposed Drawdown Date, in the case of a LIBOR Competitive Bid Loan
or (b) the proposed Drawdown Date, in the case of an Absolute Competitive Bid
Loan, the Borrower Representative shall notify the Agent of its acceptance or
non-acceptance of each Competitive Bid Quote in substantially the form of
Exhibit K hereto. The Borrowers may accept any Competitive Bid Quote in whole or
in part; provided that:
(i) the aggregate principal amount of each
Competitive Bid Loan may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request;
(ii) acceptance of offers may only be made on the
basis of ascending Competitive Bid Margins or Competitive Bid Rates, as the case
may be, and
(iii) the Borrowers may not accept any offer that is
described in subsection 2A.5(c) or that otherwise fails to comply with the
requirements of this Agreement.
The Agent shall promptly notify each Lender which submitted a Competitive Bid
Quote of the Borrower Representative's acceptance or non-acceptance thereof. At
the request of any Lender which submitted a Competitive Bid Quote and with the
consent of the Borrower Representative, the Agent will promptly notify all
Lenders which submitted Competitive Bid Quotes of (a) the aggregate principal
amount of, and (b) the range of Competitive Bid Rates or Competitive Bid Margins
of, the accepted Competitive Bid Loans for each requested Interest Period.
ss.2A.8. Allocation by Agent. If offers are made by two (2) or more
Lenders with the same Competitive Bid Margin or Competitive Bid Rate, as the
case may be, for a greater aggregate principal amount than the amount in respect
of which offers are accepted for the related Interest Period, the principal
amount of Competitive Bid Loans in respect of which such offers are accepted
shall be allocated by the Agent among such Lenders as nearly as possible (in
such multiples, not less than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. Determination by
the Agent of the amounts of Competitive Bid Loans shall be conclusive in the
absence of manifest error.
ss.2A.9. Funding of Competitive Bid Loans. If, on or prior to the
Drawdown Date of any Competitive Bid Loan, the Total Commitment has not
terminated in full and if, on such Drawdown Date, the applicable conditions of
ss.ss.10 and 11 hereof are satisfied, the Lender or Lenders whose offers the
Borrower Representative has accepted will fund each Competitive Bid Loan so
accepted. Notwithstanding the foregoing, the Borrowers shall be able to borrow
under this Agreement during the occurrence of a Default or an Event of Default
- 36 -
<PAGE>
arising solely from the Borrowers' failure to comply with the provisions of
ss.7.22 if such borrowing is to cure, and will cure, such Default or Event of
Default without causing any other Default or Event of Default. Such Lender or
Lenders will make such Competitive Bid Loans by crediting the Agent for further
credit to a Borrowers' specified account with the Agent, in immediately
available funds not later than 1:00 p.m. (New York City time) on such Drawdown
Date.
ss.2A.10. Funding Losses. If, after acceptance of any Competitive Bid
Quote pursuant to ss.2A, the Borrowers (a) fail to borrow any Competitive Bid
Loan so accepted on the date specified therefor, or (b) repay the outstanding
amount of the Competitive Bid Loan on or prior to the last day of the Interest
Period relating thereto, the Borrowers shall indemnify the Lender making such
Competitive Bid Quote or funding such Competitive Bid Loan against any loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain such unborrowed Loans,
including, without limitation compensation as provided in ss.4.8.
ss.2A.11. Repayment of Competitive Bid Loans; Interest. The principal
of each Competitive Bid Loan shall become absolutely due and payable by the
Borrowers on the last day of the Interest Period relating thereto, and the
Borrowers hereby absolutely and unconditionally jointly and severally promise to
pay to the Agent for the account of the relevant Lenders at or before 1:00 p.m.
(New York City time) on the last day of the Interest Periods relating thereto
the principal amount of all such Competitive Bid Loans, plus interest thereon at
the applicable Competitive Bid Rates or the sum of the Competitive Bid Margin
plus the applicable LIBOR Rate (as the case may be). The Competitive Bid Loans
shall bear interest at the rate per annum specified in the applicable
Competitive Bid Quotes. Interest on the Competitive Bid Loans shall be payable
(a) on the last day of the applicable Interest Periods, and if any such Interest
Period is longer than three months, also on the last day of the third month
following the commencement of such Interest Period, and (b) on the Maturity Date
for all Loans. Subject to the terms of this Credit Agreement, the Borrowers may
make Competitive Bid Quote Requests with respect to new borrowings of any
amounts so repaid prior to the Maturity Date. The provisions of ss.2.6 shall not
apply to Competitive Bid Loans.
ss.2A.12. Optional Repayment of Competitive Bid Loans. The Borrowers
shall have the right, at their election, to repay the outstanding amount of any
of the Competitive Bid Loans, as a whole or in part, at any time without penalty
or premium, provided that any full or partial prepayment of the outstanding
amount of any Competitive Bid Loan pursuant to this ss.2A.12 may be made only on
the last day of the Interest Period relating thereto, or, if made prior to such
date, shall be made subject to the provisions of ss.2A.10 hereof. The Borrowers
shall give the Agent no less than three (3) Business Days notice of any proposed
prepayment pursuant to this ss.2A.12, specifying the proposed date of prepayment
of the Competitive Bid Loan and the principal amount to be prepaid. Each such
partial prepayment of any Competitive Bid Loan shall be in an integral multiple
of $500,000, and shall be
- 37 -
<PAGE>
accompanied by the payment of accrued interest on the principal prepaid to the
date of prepayment.
ss.3. LETTERS OF CREDIT.
ss.3.1. Letter of Credit Commitments.
ss.3.1.1. Commitment to Issue Letters of Credit. Subject to
the terms and conditions hereof and the execution and delivery by the Borrowers
of a letter of credit application on the Fronting Bank's customary form as part
of a Completed Revolving Credit Loan Request (a "Letter of Credit Application"),
the Fronting Bank on behalf of the Lenders and in reliance upon the agreement of
the Lenders set forth in ss.3.1.4 and upon the representations and warranties of
the Borrowers contained herein, agrees, in its individual capacity, to issue,
extend and renew for the account of the Borrowers one or more standby letters of
credit (individually, a "Letter of Credit"), in such form as may be requested
from time to time by the Borrower Representative and reasonably agreed to by the
Fronting Bank; provided, however, that, after giving effect to such Completed
Revolving Credit Loan Request, (a) the Maximum Drawing Amount shall not exceed
$50,000,000 at any one time, (b) the sum of (i) the Maximum Drawing Amount on
all Letters of Credit and (ii) the amount of all Revolving Credit Loans and
Competitive Bid Loans outstanding shall not exceed the Total Commitment in
effect at such time, and (c) the total number of Letters of Credit outstanding
shall not exceed ten (10).
ss.3.1.2. Letter of Credit Applications. Each Letter of Credit
Application shall be completed to the reasonable satisfaction of the Agent and
the Fronting Bank. In the event that any provision of any Letter of Credit
Application shall be inconsistent with any provision of this Agreement
(including provisions applicable to a Completed Revolving Credit Loan Request),
then the provisions of this Agreement shall, to the extent of any such
inconsistency, govern.
ss.3.1.3. Terms of Letters of Credit. Each Letter of Credit
issued, extended or renewed hereunder shall, among other things, (i) provide for
the payment of sight drafts for honor thereunder when presented in accordance
with the terms thereof and when accompanied by the documents described therein,
and (ii) have an expiry date no later than the date which is thirty (30) days
prior to the Maturity Date. Each Letter of Credit so issued, extended or renewed
shall be subject to the Uniform Customs.
ss.3.1.4. Reimbursement Obligations of Lenders. Each Lender
severally agrees that it shall be absolutely liable, without regard to the
occurrence of any Default or Event of Default or any other condition precedent
whatsoever, to the extent of such Lender's Commitment Percentage, to reimburse
the Fronting Bank on demand pursuant to ss.3.3 for the amount of each draft paid
by the Fronting Bank under each Letter of Credit to the extent that such amount
is not reimbursed by the Borrowers pursuant to ss.3.2 (such agreement for a
Lender being called herein the "Letter of Credit Participation" of such Lender).
- 38 -
<PAGE>
ss.3.2. Reimbursement Obligation of the Borrowers. In order to induce
the Fronting Bank to issue, extend and renew each Letter of Credit and the
Lenders to participate therein, the Borrowers hereby jointly and severally
agree, except as contemplated in ss.3.3 below, to reimburse or pay to the
Fronting Bank, for the account of the Fronting Bank or (as the case may be) the
Lenders, with respect to each Letter of Credit issued, extended or renewed by
the Fronting Bank hereunder,
(a) except as otherwise expressly provided in ss.3.2(b) or
ss.3.3, on each date that any draft presented under such Letter of Credit is
honored in accordance with its terms by the Fronting Bank, or the Fronting Bank
otherwise makes a payment with respect thereto, (i) the amount paid by the
Fronting Bank under or with respect to such Letter of Credit, and (ii) any
amounts payable pursuant to ss.4.5 hereof under, or with respect to, such Letter
of Credit, and
(b) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all Letters of
Credit in accordance with ss.12, an amount equal to the then Maximum Drawing
Amount on all Letters of Credit, which amount shall be held by the Agent as cash
collateral for the benefit of the Fronting Bank, the Lenders and the Agent for
all Reimbursement Obligations.
Each such payment shall be made to the Agent at the Agent's Head Office
in immediately available funds. Interest on any and all amounts not converted to
a Revolving Credit Loan pursuant to ss.3.3 and remaining unpaid by the Borrowers
under this ss.3.2 at any time from the date such amounts become due and payable
(whether as stated in this ss.3.2, by acceleration or otherwise) until payment
in full (whether before or after judgment) shall be payable to the Agent for the
benefit of the Lenders on demand at the rate specified in ss.4.9 for overdue
principal on the Revolving Credit Loans.
ss.3.3. Letter of Credit Payments; Funding of a Loan. If any draft
shall be presented or other demand for payment shall be made under any Letter of
Credit, the Fronting Bank shall notify the Borrower Representative and the
Lenders of the date and amount of the draft presented or demand for payment and
of the date and time when it expects to pay such draft or honor such demand for
payment, and, except as provided in this ss.3.3, the Borrowers shall reimburse
Agent, as set forth in ss.3.2 above. Notwithstanding anything contained in
ss.3.2 above or this ss.3.3 to the contrary, however, unless the Borrower
Representative shall have notified the Agent and the Fronting Bank prior to
11:00 a.m. (New York time) on the Business Day immediately prior to the date of
such drawing that the Borrowers intend to reimburse the Fronting Bank for the
amount of such drawing with funds other than the proceeds of the Loans, the
Borrowers shall be deemed to have timely given a Completed Revolving Credit Loan
Request pursuant to ss.2.5 to the Agent, requesting a Prime Rate Loan on the
date on which such drawing is honored and in an amount equal to the amount of
such drawing. The Borrowers may thereafter convert any such Prime Rate Loan to a
Revolving Credit Loan of another Type in accordance with ss.2.6. Each Lender
shall, in accordance with
- 39 -
<PAGE>
ss.2.7, make available such Lender's Commitment Percentage of such Revolving
Credit Loan to the Agent, the proceeds of which shall be applied directly by the
Agent to reimburse the Fronting Bank for the amount of such draw. In the event
that any Lender fails to make available to the Agent the amount of such Lender's
Commitment Percentage of such Revolving Credit Loan on the date of the drawing,
the Agent shall be entitled to recover such amount on demand from such Lender
plus any additional amounts payable under ss.2.7(b) in the event of a late
funding by a Lender. The Fronting Bank is irrevocably authorized by the
Borrowers and each of the Lenders to honor draws on each Letter of Credit by the
beneficiary thereof in accordance with the terms of the Letter of Credit. The
responsibility of the Fronting Bank to the Borrowers and the Lenders shall be
only to determine that the documents (including each draft) delivered under each
Letter of Credit in connection with such presentment shall be in conformity in
all material respects with such Letter of Credit.
ss.3.4. Obligations Absolute. The Borrowers' joint and several
obligations under this ss.3 shall be absolute and unconditional under any and
all circumstances and irrespective of the occurrence of any Default or Event of
Default or any condition precedent whatsoever or any setoff, counterclaim or
defense to payment which the Borrowers may have or have had against the Agent,
the Fronting Bank, any Lender or any beneficiary of a Letter of Credit. Each of
the Borrowers further agrees with the Agent, the Fronting Bank and the Lenders
that the Agent, the Fronting Bank and the Lenders shall not be responsible for,
and the Borrowers' Reimbursement Obligations under ss.3.2 shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon (so long as the documents delivered under each Letter of
Credit in connection with such presentment shall be in the form required by, and
in conformity in all material respects with, such Letter of Credit), even if
such documents should in fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among any of the Borrowers, the
beneficiary of any Letter of Credit or any financing institution or other party
to whom any Letter of Credit may be transferred, or any claims or defenses
whatsoever of any of the Borrowers against the beneficiary of any Letter of
Credit or any such transferee. If done in good faith and absent gross
negligence, the Agent, the Fronting Bank and the Lenders shall not be liable for
any error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with any Letter of
Credit. Each of the Borrowers agrees that any action taken or omitted by the
Agent, the Fronting Bank or any Lender under or in connection with each Letter
of Credit and the related drafts and documents, if done in good faith and absent
gross negligence, shall be binding upon the Borrowers and shall not result in
any liability on the part of the Agent, the Fronting Bank or any Lender to any
Borrower.
ss.3.5. Reliance by Issuer. To the extent not inconsistent with ss.3.4,
the Agent and the Fronting Bank shall be entitled to rely, and shall be fully
protected in relying upon, any Letter of Credit, draft, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document believed by it to
be genuine and correct and to have been signed, sent or made by the proper
- 40 -
<PAGE>
Person or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent or the Fronting Bank. The
Agent and the Fronting Bank shall in all cases be fully protected by the Lenders
in acting, or in refraining from acting, under this ss.3 in accordance with a
request of the Majority Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the Lenders and all future
holders of the Notes or of a Letter of Credit Participation.
ss.3.6. Letter of Credit Fee. The Borrowers shall pay to the Agent a
fee (in each case, a "Letter of Credit Fee") in an amount equal to the
Applicable L/C Percentage of the face amount of each outstanding Letter of
Credit, which fee (a) shall be payable quarterly in arrears on the first day of
each calendar quarter for the immediately preceding calendar quarter, with a
final payment on the Maturity Date or any earlier date on which the Commitments
shall terminate (which Letter of Credit Fee shall be pro-rated for any calendar
quarter in which such Letter of Credit is issued, drawn upon or otherwise
reduced or terminated) and (b) shall be for the accounts of the Lenders as
follows: (i) an amount equal to 0.125% per annum of the face amount of the
Letter of Credit shall be for the account of the Fronting Bank and (ii) the
remainder of the Letter of Credit Fee shall be for the accounts of the Lender
(including the Fronting Bank) pro rata in accordance with their respective
Commitment Percentages. In respect of each Letter of Credit, the Borrowers shall
also pay to the Fronting Bank for the Fronting Bank's own account, at such other
time or times as such charges are customarily made by the Fronting Bank, the
Fronting Bank's customary issuance, amendment, negotiation or document
examination and other administrative fees as in effect from time to time.
ss.4. CERTAIN GENERAL PROVISIONS.
ss.4.1. Funds for Payments.
(a) All payments of principal, interest, fees, and any other
amounts due hereunder or under any of the other Loan Documents shall be made to
the Agent, for the respective accounts of the Lenders or (as the case may be)
the Agent, at the Agent's Head Office, in each case in Dollars and in
immediately available funds.
(b) All payments by the Borrowers hereunder and under any of
the other Loan Documents shall be made without setoff or counterclaim and free
and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory liens, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Borrowers are compelled by law to make such deduction or withholding. If any
such obligation is imposed upon the Borrowers with respect to any amount payable
by them hereunder or under any of the other Loan Documents, the Borrowers shall
pay to the Agent, for the account of the Lenders or (as the case may be) the
Agent, on the date on which such amount is due and payable hereunder or under
such other Loan Document, such additional amount in Dollars as shall be
necessary to enable the
- 41 -
<PAGE>
Lenders to receive the same net amount which the Lenders would have received on
such due date had no such obligation been imposed upon the Borrowers. The
Borrower Representative will deliver promptly to the Agent certificates or other
valid vouchers for all taxes or other charges deducted from or paid with respect
to payments made by the Borrowers hereunder or under such other Loan Document.
ss.4.2. Computations. All computations of interest on the Loans and of
other fees to the extent applicable shall be based on a 360-day year and paid
for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to LIBOR Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension. The outstanding amount of the Loans as reflected on the Note
Records from time to time shall constitute prima facie evidence of the principal
amount thereof.
ss.4.3. Inability to Determine LIBOR Rate. In the event, prior to the
commencement of any Interest Period relating to any LIBOR Rate Loan, the Agent
shall reasonably determine that adequate and reasonable methods do not exist for
ascertaining the LIBOR Rate that would otherwise determine the rate of interest
to be applicable to any LIBOR Rate Loan during any Interest Period, the Agent
shall forthwith give notice of such determination (which shall be conclusive and
binding on the Borrowers) to the Borrower Representative and the Lenders. In
such event (a) any Loan Request or Competitive Bid Request with respect to LIBOR
Rate Loans shall be automatically withdrawn and shall be deemed a request for
Prime Rate Loans (in the case Revolving Credit Loans) or Absolute Competitive
Bid Loans (in the case of Competitive Bid Loans), (b) each Revolving Credit
LIBOR Rate Loan will automatically, on the last day of the then current Interest
Period thereof, become a Prime Rate Loan, and (c) the obligations of the Lenders
to make LIBOR Rate Loans shall be suspended until the Agent reasonably
determines that the circumstances giving rise to such suspension no longer
exist, whereupon the Agent shall so notify the Borrower Representative and the
Lenders.
ss.4.4. Illegality. Subject to ss.ss.4.11 and 4.12 hereof, but
notwithstanding any other provisions herein, if any present or future law,
regulation, treaty or directive or in the interpretation or application thereof
shall make it unlawful for any Lender to make or maintain LIBOR Rate Loans, such
Lender shall forthwith give notice of such circumstances to the Borrower
Representative and the other Lenders and thereupon (a) the commitment of such
Lender to make LIBOR Rate Loans or convert Prime Rate Loans to LIBOR Rate Loans
shall forthwith be suspended and (b) such Lender's Commitment Percentage of
Revolving Credit LIBOR Rate Loans then outstanding shall be converted
automatically to Prime Rate Loans on the last day of each Interest Period
applicable to such LIBOR Rate Loans or within such earlier period as may be
required by law, all until such time as it is no longer unlawful for such Lender
to make or maintain LIBOR Rate Loans. Subject to ss.ss.4.11 and 4.12 hereof, the
Borrowers hereby jointly and severally agree to promptly pay the Agent for the
account
- 42 -
<PAGE>
of such Lender, upon demand, any additional amounts necessary to compensate such
Lender for any costs incurred by such Lender in making any conversion required
by this ss.4.4 prior to the last day of an Interest Period with respect to a
LIBOR Rate Loan, including any interest or fees payable by such Lender to
lenders of funds obtained by it in order to make or maintain its LIBOR Rate
Loans hereunder.
ss.4.5. Additional Costs, Etc. Subject to ss.ss.4.11 and 4.12 hereof,
if any present or future applicable law, which expression, as used herein,
includes statutes, rules and regulations thereunder and interpretations thereof
by any competent court or by any governmental or other regulatory body or
official charged with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Lender or the Agent by any
central bank or other fiscal, monetary or other authority (whether or not having
the force of law), shall:
(a) subject any Lender or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, any Letters of Credit, such Lender's
Commitment or the Loans (other than taxes based upon or measured by the income
or profits of such Lender or the Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Lender of the
principal of or the interest on any Loans or any other amounts payable to the
Agent or any Lender under this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or letters of credit issued by,
or commitments of an office of any Lender, or
(d) impose on any Lender or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, any
Letters of Credit, the Loans, such Lender's Commitment, or any class of loans,
letters of credit or commitments of which any of the Loans or such Lender's
Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to any Lender of making,
funding, issuing, renewing, extending or maintaining any of
the Loans or such Lender's Commitment or any Letter of Credit,
or
- 43 -
<PAGE>
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such
Lender or the Agent hereunder on account of such Lender's
Commitment, any Letter of Credit or any of the Loans, or
(iii) to require such Lender or the Agent to make any
payment or to forego any interest or Reimbursement Obligation
or other sum payable hereunder, the amount of which payment or
foregone interest or Reimbursement Obligation or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by such Lender or the Agent from
the Borrowers hereunder,
then; and in each such case arising or occurring in the immediately preceding
365 days from such demand, the Borrowers will, within thirty (30) days after
demand made by such Lender or (as the case may be) the Agent at any time and
from time to time and as often as the occasion therefor may arise, within the
shorter of such maximum allowable period as permitted by law or such Lender's
internal policies (but no longer than one year or the occurrence of the Maturity
Date, if sooner) pay to such Lender such additional amounts as such Lender shall
determine in good faith to be sufficient to compensate such Lender for such
additional cost, reduction, payment or foregone interest or other sum, provided
that such Lender is generally imposing similar charges on its other similarly
situated borrowers.
ss.4.6. Capital Adequacy. Subject to ss.ss.4.11 and 4.12 hereof, if
after the date hereof any Lender or the Agent determines in good faith that (i)
the adoption of or change in any law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) regarding
capital requirements for banks or bank holding companies or any change in the
interpretation or application thereof by a court or governmental authority with
appropriate jurisdiction, or (ii) compliance by such Lender or the Agent or any
Person controlling such Lender or the Agent with any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) of any such Person regarding capital adequacy, has the effect of reducing
the return on such Lender's or the Agent's Commitment with respect to any Loans
to a level below that which such Lender or the Agent could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's or
the Agent's then existing policies with respect to capital adequacy and assuming
full utilization of such entity's capital) by any amount deemed by such Lender
or (as the case may be) the Agent to be material, then such Lender or the Agent
may notify the Borrower Representative of such fact. To the extent that the
amount of such reduction in the return on capital is not reflected in the Prime
Rate or LIBOR Rate, the Borrowers jointly and severally agree to pay such Lender
or (as the case may be) the Agent the amount of such reduction in the return on
capital as and when such reduction is determined, within thirty (30) days after
presentation by such Lender or (as the case may be) the Agent of a certificate
in accordance with ss.4.7 hereof which certificate shall be presented within the
shorter of such maximum allowable period as permitted by law or such Lender's
internal policies (but no longer than one year or the occurrence of the Maturity
Date, if
- 44 -
<PAGE>
sooner). Each Lender shall allocate such cost increases among its customers in
good faith and on an equitable basis.
ss.4.7. Certificate. A certificate setting forth any additional amounts
payable pursuant to ss.ss.4.5 or 4.6 and a brief explanation of such amounts
which are due, submitted by any Lender or the Agent to the Borrower
Representative, shall be prima facie evidence that such amounts are due and
owing.
ss.4.8. Indemnity. In addition to the other provisions of this
Agreement regarding such matters, the Borrowers jointly and severally agree to
indemnify the Agent and each Lender and to hold the Agent and each Lender
harmless from and against any loss, cost or expense (including LIBOR Breakage
Costs, but excluding any loss of Applicable Margin on the relevant Loans) that
the Agent or such Lender may sustain or incur as a consequence of (a) the
failure by the Borrowers to pay any principal amount of or any interest on any
LIBOR Rate Loans as and when due and payable, including any such loss or expense
arising from interest or fees payable by the Agent or such Lender to lenders of
funds obtained by it in order to maintain its LIBOR Rate Loans, (b) the failure
by the Borrowers to make a borrowing or conversion after the Borrowers have
given or are deemed pursuant to ss.2.6(c) to have given a Completed Revolving
Credit Loan Request or Competitive Bid Request for a LIBOR Rate Loan or a
Conversion Request to convert a Prime Rate Loan into a LIBOR Rate Loan, and (c)
the making of any payment of a LIBOR Rate Loan or the making of any conversion
of any such Loan to a Prime Rate Loan on a day that is not the last day of the
applicable Interest Period with respect thereto, including interest or fees
payable by the Agent or a Lender to lenders of funds obtained by it in order to
maintain any such LIBOR Rate Loans.
ss.4.9. Interest During Event of Default. During the continuance of an
Event of Default, outstanding principal and (to the extent permitted by
applicable law) interest on the Loans and all other amounts payable hereunder or
under any of the other Loan Documents shall bear interest at a rate per annum
equal to four percent (4%) above the Prime Rate until such amount shall be paid
in full (after as well as before judgment). In addition, the Borrowers shall pay
on demand a late charge equal to five percent (5%) of any amount of principal
(other than principal due on the Maturity Date) and/or interest charges on the
Loans which is not paid within ten (10) days of the date when due.
ss.4.10. Concerning Joint and Several Liability of the Borrowers.
(a) Each of the Borrowers is accepting joint and several
liability hereunder and under the other Loan Documents in consideration of the
financial accommodations to be provided by the Lenders under this Agreement, for
the mutual benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of each other Borrower to accept joint and
several liability for the Obligations.
- 45 -
<PAGE>
(b) Each of the Borrowers, jointly and severally, hereby
irrevocably and unconditionally accepts, not merely as a surety but also as a
co-debtor, joint and several liability with the other Borrowers, with respect to
the payment and performance of all of the Obligations (including, without
limitation, any Obligations arising under this ss.4.10), it being the intention
of the parties hereto that all the Obligations shall be the joint and several
Obligations of each of the Borrowers without preferences or distinction among
them.
(c) If and to the extent that any of the Borrowers shall fail
to make any payment with respect to any of the Obligations as and when due or to
perform any of the Obligations in accordance with the terms thereof, then in
each such event the other Borrowers will make such payment with respect to, or
perform, such Obligation.
(d) The Obligations of each of the Borrowers under the
provisions of this ss.4.10 constitute full recourse Obligations of each of the
Borrowers enforceable against each such Person to the full extent of its
properties and assets, irrespective of the validity, regularity or
enforceability of this Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Agreement,
each of the Borrowers hereby waives notice of acceptance of its joint and
several liability, notice of any Loans made under this Agreement, notice of any
action at any time taken or omitted by the Lenders under or in respect of any of
the Obligations, and, generally, to the extent permitted by applicable law, all
demands, notices and other formalities of every kind in connection with this
Agreement. Each of the Borrowers hereby assents to, and waives notice of, any
extension or postponement of the time for the payment of any of the Obligations,
the acceptance of any payment of any of the Obligations, the acceptance of any
partial payment thereon, any waiver, consent or other action or acquiescence by
the Lenders at any time or times in respect of any Default by any of the
Borrowers in the performance or satisfaction of any term, covenant, condition or
provision of this Agreement, any and all other indulgences whatsoever by the
Lenders in respect of any of the Obligations, and the taking, addition,
substitution or release, in whole or in part, at any time or times, of any
security for any of the Obligations or the addition, substitution or release, in
whole or in part, of any of the Borrowers. Without limiting the generality of
the foregoing, each of the Borrowers assents to any other action or delay in
acting or failure to act on the part of the Lenders with respect to the failure
by any of the Borrowers to comply with any of its respective Obligations,
including, without limitation, any failure strictly or diligently to assert any
right or to pursue any remedy or to comply fully with applicable laws or
regulations thereunder, which might, but for the provisions of this ss.4.10,
afford grounds for terminating, discharging or relieving any of the Borrowers,
in whole or in part, from any of its Obligations under this ss.4.10, it being
the intention of each of the Borrowers that, so long as any of the Obligations
hereunder remain unsatisfied, the Obligations of such Borrowers under this
ss.4.10 shall not be discharged except by performance and then only to the
extent of such performance. The Obligations of each of the Borrowers under this
ss.4.10 shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, re-construction or similar proceeding
with respect to any of the Borrowers or the Lenders. The joint and
- 46 -
<PAGE>
several liability of the Borrowers hereunder shall continue in full force and
effect notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of any of
the Borrowers or the Lenders.
(f) The provisions of this ss.4.10 are made for the benefit of
the Lenders and their successors and assigns, and may be enforced against any or
all of the Borrowers as often as occasion therefor may arise and without
requirement on the part of the Lenders first to marshal any of their claims or
to exercise any of their rights against any other Borrower or to exhaust any
remedies available to them against any other Borrower or to resort to any other
source or means of obtaining payment of any of the Obligations hereunder or to
elect any other remedy. The provisions of this ss.4.10 shall remain in effect
until all of the Obligations shall have been paid in full or otherwise fully
satisfied. If at any time, any payment, or any part thereof, made in respect of
any of the Obligations, is rescinded or must otherwise be restored or returned
by the Lenders upon the insolvency, bankruptcy or reorganization of any of the
Borrowers, or otherwise, the provisions of this ss.4.10 will forthwith be
reinstated in effect, as though such payment had not been made.
(g) Other than during the continuance of a Default or Event of
Default, at the request of the Borrower Representative, the Obligations of any
Subsidiary Borrower shall be released by the Agent if and when all of the Real
Estate owned or ground leased by such Subsidiary Borrower shall cease (not
thereby creating a Default or Event of Default) to be owned by such Subsidiary
Borrower or by any other Borrower, Guarantor, Subsidiary or other Affiliate of
any of the same, provided the foregoing shall never permit the release of CRLP.
The remaining Borrowers shall execute and deliver such documents as the Agent
shall reasonably require to effect same.
ss.4.11. Reasonable Efforts to Mitigate. Each Lender agrees that as
promptly as practicable after it becomes aware of the occurrence of an event or
the existence of a condition that would cause it to be affected under ss.ss.4.4,
4.5 or 4.6, such Lender will give notice thereof to the Borrower Representative,
with a copy to the Agent and, to the extent so requested by the Borrower
Representative and not inconsistent with regulatory policies applicable to such
Lender, such Lender shall use reasonable efforts and take such actions as are
reasonably appropriate (including the changing of its lending office or branch)
if as a result thereof the additional moneys which would otherwise be required
to be paid to such Lender pursuant to such sections would be reduced other than
for de minimus amounts, or the illegality or other adverse circumstances which
would otherwise require a conversion of such Loans or result in the inability to
make such Loans pursuant to such sections would cease to exist, and in each case
if, as determined by such Lender in its sole discretion, the taking such actions
would not adversely affect such Loans.
ss.4.12. Replacement of Lenders. If any Lender (an "Affected Lender")
(i) makes demand upon the Borrowers for (or if the Borrowers are otherwise
required to pay) amounts pursuant to ss.ss.4.4, 4.5 or 4.6, or (ii) is unable to
make or maintain LIBOR Rate Loans as a
- 47 -
<PAGE>
result of a condition described in ss.4.4, the Borrower Representative may,
within 90 days of receipt of such demand, notice (or the occurrence of such
other event causing the Borrowers to be required to pay such compensation or
causing ss.4.4 to be applicable) as the case may be, by notice (a "Replacement
Notice") in writing to the Agent and such Affected Lender (A) request the
Affected Lender to cooperate with the Borrowers in obtaining a replacement
lender satisfactory to the Agent and the Borrowers (the "Replacement Lender");
(B) request the non-Affected Lenders to acquire and assume all of the Affected
Lender's Loans and Commitment, and/or participate in Letters of Credit, as
provided herein, but none of such Lenders shall be under an obligation to do so;
or (C) designate a Replacement Lender which is an Eligible Assignee and is
reasonably satisfactory to the Agent other than when an Event of Default has
occurred and is continuing and absolutely satisfactory to the Agent when an
Event of Default has occurred and is continuing. If any satisfactory Replacement
Lender shall be obtained, and/or any of the non-Affected Lenders shall agree to
acquire and assume all of the Affected Lender's Loans and Commitment, and/or
participate in Letters of Credit, then such Affected Lender shall assign, in
accordance with ss.18, all of its Commitment, Loans, Notes and other rights and
obligations under this Agreement and all other Loan Documents to such
Replacement Lender or non-Affected Lenders, as the case may be, in exchange for
payment of the principal amount so assigned and all interest and fees accrued on
the amount so assigned, plus all other Obligations then due and payable to the
Affected Lender; provided, however, that (x) such assignment shall be in
accordance with the provisions of ss.18, shall be without recourse,
representation or warranty and shall be on terms and conditions reasonably
satisfactory to such Affected Lender and such Replacement Lender and/or
non-Affected Lenders, as the case may be, and (y) prior to any such assignment,
the Borrowers shall have paid to such Affected Lender all amounts properly
demanded and unreimbursed under ss.ss.4.4, 4.5 and 4.8.
ss.5. GUARANTIES.
ss.5.1. Guaranties. Each of the Guarantors will jointly and severally
guaranty all of the Obligations pursuant to its Guaranty. The Obligations are
full recourse obligations of each Borrower and each Guarantor, and all of the
respective assets and properties of each Borrower and each such Guarantor shall
be available for the payment in full in cash and performance of the Obligations
(subject to Permitted Liens and senior claims enforceable as senior in
accordance with applicable law, without the Lenders hereby agreeing to any such
senior claim that is otherwise prohibited by this Agreement). Other than during
the continuance of a Default or Event of Default, at the request of the Borrower
Representative, the Guaranty of any Subsidiary Guarantor shall be released by
the Agent if and when all of the Real Estate owned or ground-leased by such
Subsidiary Guarantor shall cease (not thereby creating a Default or Event of
Default) to be owned by such Subsidiary Guarantor or by any other Borrower,
Guarantor, Subsidiary or other Affiliate of any of same, provided the foregoing
shall never permit the release of CRC.
ss.5.2. Limited Guaranties. Each of the individuals identified to the
Agent as of the Closing Date and from time to time thereafter by the Borrower
Representative (collectively,
- 48 -
<PAGE>
the "Limited Guarantors", which at all times shall not be an owner or ground
lessee of Real Estate) shall severally guaranty such portion of the Obligations
of the Borrowers as is set forth in each Limited Guaranty entered into as of the
Closing Date and from time to time thereafter by each Limited Guarantor in favor
of the Agent and the Lenders (as each may be amended, supplemented, modified or
restated, collectively, the "Limited Guaranties"). Notwithstanding anything to
the contrary contained herein, the Limited Guaranties may be amended,
supplemented, modified, restated, or terminated and the identity of the Limited
Guarantors may be changed, by the Borrower Representative upon written notice to
the Agent.
ss.6. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers for itself
and for each of the other Borrowers and for each Guarantor insofar as any such
statements relate to such Guarantor represents and warrants
to the Agent and the Lenders all of the statements contained in this ss.6.
ss.6.1. Authority; Etc.
(a) Organization; Good Standing.
(i) CRLP is a limited partnership
duly organized, validly existing and in good standing
under the laws of the State of Delaware; each of the
other Borrowers and each other Subsidiary of CRLP
that owns Real Estate is duly organized or formed,
validly existing and in good standing as a
corporation or a partnership or other entity, as the
case may be, under the laws of the state of its
organization or formation; each of the Borrowers and
each of any Borrowers' Subsidiaries that own Real
Estate has all requisite partnership or corporate or
other entity, as the case may be, power to own its
respective properties and conduct its respective
business as now conducted and as presently
contemplated; and each of the Borrowers and each of
each Borrowers' Subsidiaries that own Real Estate is
in good standing as a foreign entity and is duly
authorized to do business in the jurisdictions where
the Unencumbered Properties or other Real Estate
owned or ground-leased by it are located and in each
other jurisdiction where such qualification is
necessary except where a failure to be so qualified
in such other jurisdiction would not have a
materially adverse effect on any of their respective
businesses, assets or financial conditions.
(ii) CRC is a corporation duly
organized, validly existing and in good standing
under the laws of the State of Maryland; each
Subsidiary of CRC that owns Real Estate is duly
organized or formed, validly existing and in good
standing as a corporation or partnership or other
entity, as the case may be, under the laws of the
- 49 -
<PAGE>
state of its organization or formation; CRC and each
of its Subsidiaries that owns Real Estate has all
requisite corporate or partnership or other entity,
as the case may be, power to own its respective
properties and conduct its respective business as now
conducted and as presently contemplated; and CRC and
each of its Subsidiaries that owns Real Estate is in
good standing as a foreign entity and is duly
authorized to do business in the jurisdictions where
such qualification is necessary (including, as to
CRC, in the State of New Jersey) except where a
failure to be so qualified in such other jurisdiction
would not have a materially adverse effect on the
business, assets or financial condition of CRC or
such Subsidiary.
(iii) As to each subsequent
Guarantor, a provision similar, as applicable, to (a)
(i) or (ii) above shall be included in each such
subsequent Guarantor's Subsidiary Guaranty, and the
Borrowers shall be deemed to make for themselves and
on behalf of each such subsequent Guarantor a
representation and warranty as to such provision
regarding such subsequent Guarantor.
(b) Capitalization.
(i) The outstanding equity of CRLP
is comprised of a general partner interest and
limited partner interests, all of which have been
duly issued and are outstanding and fully paid and
non-assessable as set forth in Schedule 6.1(b)
hereto. All of the issued and outstanding general
partner interests of CRLP are owned and held of
record by CRC. Except as disclosed in Schedule 6.1(b)
hereto, as of the Closing Date there are no
outstanding securities or agreements exchangeable for
or convertible into or carrying any rights to acquire
any general partnership interests in CRLP. Except as
disclosed in Schedule 6.1(b), there are no
outstanding commitments, options, warrants, calls or
other agreements (whether written or oral) binding on
CRLP or CRC which require or could require CRLP or
CRC to sell, grant, transfer, assign, mortgage,
pledge or otherwise dispose of any general
partnership interests of CRLP. Except as set forth in
the Agreement of Limited Partnership of CRLP, no
general partnership interests of CRLP are subject to
any restrictions on transfer or any partner
agreements, voting agreements, trust deeds,
irrevocable proxies, or any other similar agreements
or interests (whether written or oral).
(ii) As of the Closing Date, the
authorized capital stock of, or any other equity
interests in, each of CRC's Subsidiaries are as set
forth in Schedule 6.1(b), and the issued and
outstanding
- 50 -
<PAGE>
voting and non-voting shares of the common stock of
each of CRC's Subsidiaries, and all of the other
equity interests in such Subsidiaries, all of which
have been duly issued and are outstanding and fully
paid and non-assessable, are owned and held of record
as set forth in Schedule 6.1(b). Except as disclosed
in Schedule 6.1(b), as of the Closing Date there are
no outstanding securities or agreements exchangeable
for or convertible into or carrying any rights to
acquire any equity interests in any of CRC's
Subsidiaries, and there are no outstanding options,
warrants, or other similar rights to acquire any
shares of any class in the capital of or any other
equity interests in any of CRC's Subsidiaries. Except
as disclosed in Schedule 6.1(b), as of the Closing
Date there are no outstanding commitments, options,
warrants, calls or other agreements or obligations
(whether written or oral) binding on any of CRC's
Subsidiaries to issue, sell, grant, transfer, assign,
mortgage, pledge or otherwise dispose of any shares
of any class in the capital of or other equity
interests in any of CRC's Subsidiaries. Except as
disclosed in Schedule 6.1(b), no shares of, or equity
interests in, any of CRC's Subsidiaries held by CRC
are subject to any restrictions on transfer pursuant
to any of CRC's Subsidiaries' applicable partnership,
charter, by-laws or any shareholder agreements,
voting agreements, voting trusts, trust agreements,
trust deeds, irrevocable proxies or any other similar
agreements or instruments (whether written or oral).
(c) Due Authorization. The execution, delivery and performance
of this Agreement and the other Loan Documents to which any of the Borrowers or
any of the Guarantors is a party and the transactions contemplated hereby and
thereby (i) are within the authority of such Borrower and such Guarantor, (ii)
have been duly authorized by all necessary proceedings on the part of such
Borrower or such Guarantor and any general partner or other controlling Person
thereof, (iii) do not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which such Borrower or such
Guarantor is subject or any judgment, order, writ, injunction, license or permit
applicable to such Borrower or such Guarantor, (iv) do not conflict with any
provision of the agreement of limited partnership, any certificate of limited
partnership, the charter documents or by-laws of such Borrower or such Guarantor
or any general partner or other controlling Person thereof, and (v) do not
contravene any provisions of, or constitute a default, Default or Event of
Default hereunder or a failure to comply with any term, condition or provision
of, any other agreement, instrument, judgment, order, decree, permit, license or
undertaking binding upon or applicable to such Borrower or such Guarantor or any
of such Borrower's or such Guarantor's properties (except for any such failure
to comply under any such other agreement, instrument, judgment, order, decree,
permit, license, or undertaking as would not materially and adversely affect the
condition (financial or otherwise), properties, business or results of
operations of any Borrower, the Operating Subsidiaries or any Guarantor) or
result in the creation of any mortgage, pledge,
- 51 -
<PAGE>
security interest, lien, encumbrance or charge upon any of the properties or
assets of any Borrower, the Operating Subsidiaries or any Guarantor.
(d) Enforceability. Each of the Loan Documents to which any of
the Borrowers or any of the Guarantors is a party has been duly executed and
delivered and constitutes the legal, valid and binding obligations of each such
Borrower and each such Guarantor, as the case may be, subject only to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other laws relating to or affecting generally the enforcement of creditors'
rights and to the fact that the availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
ss.6.2. Governmental Approvals. The execution, delivery and performance
by each Borrower of this Agreement and by each Borrower and each Guarantor of
the other Loan Documents to which such Borrower or such Guarantor is a party and
the transactions contemplated hereby and thereby do not require (i) the approval
or consent of any governmental agency or authority other than those already
obtained, or (ii) filing with any governmental agency or authority, other than
filings which will be made with the SEC when and as required by law.
ss.6.3. Title to Properties; Leases.
The Borrowers, the Guarantors and their respective Subsidiaries that
own Real Estate each has good title to all of its respective Real Estate
purported to be owned by it, including, without limitation, that:
(a) As of the Closing Date (with respect to Unencumbered
Properties designated as such on the Closing Date) or the date of designation as
an Unencumbered Property (with respect to Unencumbered Properties acquired
and/or designated as such after the Closing Date), and in each case to its
knowledge thereafter, a Borrower or (if after the Closing Date) a Guarantor
holds good and clear record and marketable fee simple or leasehold title to the
Unencumbered Properties, subject to no rights of others, including any
mortgages, conditional sales agreements, title retention agreements, liens or
encumbrances, except for Permitted Liens and, in the case of any ground-leased
Unencumbered Property, the terms of such ground lease (which shall be an
Eligible Ground Lease), as the same may then or thereafter be amended from time
to time in a manner consistent with the requirements for an Eligible Ground
Lease.
(b) Each of the Borrowers and each of the then Guarantors
will, as of the Closing Date, own all of the assets as reflected in the
financial statements of the Borrowers and CRC described in ss.6.4 or acquired in
fee title since the date of such financial statements (except property and
assets sold or otherwise disposed of in the ordinary course of business since
that date).
- 52 -
<PAGE>
(c) As of the Closing Date, each of the direct or indirect
interests of CRC, the Borrowers or CRC's other Subsidiaries in any
Partially-Owned Entity that owns Real Estate is set forth on Schedule 6.3
hereto, including the type of entity in which the interest is held, the
percentage interest owned by CRC, such Borrower or such Subsidiary in such
entity, the capacity in which CRC, such Borrower or such Subsidiary holds the
interest, and CRC's, such Borrower's or such Subsidiary's ownership interest
therein. Schedule 6.3 will be updated annually at the time of delivery of the
financial statements pursuant to ss.7.4(a).
ss.6.4. Financial Statements. The following financial statements have
been furnished to each of the Lenders:
(a) The audited consolidated balance sheet of CRC and its
Subsidiaries (including, without limitation, CRLP and its Subsidiaries) as of
December 31, 1996 and their related consolidated income statements for the
fiscal year ended December 31, 1996. Such balance sheet and income statements
have been prepared in accordance with GAAP and fairly present the financial
condition of CRC and its Subsidiaries as of the close of business on the date
thereof and the results of operations for the fiscal year then ended. There are
no contingent liabilities of CRC as of such dates involving material amounts,
known to the officers of the Borrowers or of CRC, not disclosed in said
financial statements and the related notes thereto.
(b) The SEC Filings.
ss.6.5 Fiscal Year. The Borrowers and their respective Subsidiaries
each has a fiscal year which is the twelve months ending on December 31 of each
calendar year, unless changed in accordance with ss.8.9 hereof.
ss.6.6. Franchises, Patents, Copyrights, Etc. Each Borrower, each
Guarantor and each of their respective Subsidiaries that owns Real Estate
possesses all franchises, patents, copyrights, trademarks, trade names, licenses
and permits, and rights in respect of the foregoing, adequate for the conduct of
their respective businesses substantially as now conducted without known
material conflict with any rights of others, including all Permits.
ss.6.7. Litigation. Except as stated on Schedule 6.7, as updated at the
time of each compliance certificate, there are no actions, suits, proceedings or
investigations of any kind pending or, to the knowledge of the Borrowers and the
Guarantors, threatened against any Borrower, any Guarantor or any of their
respective Subsidiaries before any court, tribunal or administrative agency or
board that, if adversely determined, could reasonably be expected, either
individually or in the aggregate, to have a Material Adverse Effect or
materially impair the rights of such Borrower or such Guarantor or to carry on
their respective businesses substantially as now conducted by them, or result in
any substantial liability not adequately covered by insurance, or for which
adequate reserves are not maintained, as reflected in the applicable financial
statements of CRLP and CRC, or which question the
- 53 -
<PAGE>
validity of this Agreement or any of the other Loan Documents, or any action
taken or to be taken pursuant hereto or thereto.
ss.6.8. No Materially Adverse Contracts, Etc. None of any Borrower, any
Guarantor or any of their respective Subsidiaries is subject to any charter,
corporate, partnership or other legal restriction, or any judgment, decree,
order, rule or regulation that has or is reasonably expected to have a Material
Adverse Effect. None of any Borrower, any Guarantor or any of their respective
Subsidiaries that owns Real Estate is a party to any contract or agreement that
has or is reasonably expected, in the judgment of their respective officers, to
have a Material Adverse Effect.
ss.6.9. Compliance With Other Instruments, Laws, Etc. None of any
Borrower, any Guarantor or any of their respective Subsidiaries that owns Real
Estate is in violation of any provision of its partnership agreement, charter
documents, bylaws or other organizational documents, as the case may be, or any
respective agreement or instrument to which it is subject or by which it or any
of its properties (including, in the case of CRC and CRLP, any of their
respective Subsidiaries) are bound or any decree, order, judgment, statute,
license, rule or regulation, in any of the foregoing cases in a manner that
could reasonably be expected to result, individually or in the aggregate, in the
imposition of substantial penalties or have a Material Adverse Effect.
ss.6.10. Tax Status.
(a) (i) Each of the Borrowers, the Guarantors and their
respective Subsidiaries (A) has timely made or filed all federal, state and
local income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject, (B) has paid all taxes and other
governmental assessments and charges shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and by appropriate proceedings, and except those which would not be in violation
of ss.8.1(b) hereof and (C) has set aside on its books provisions reasonably
adequate for the payment of all taxes for periods subsequent to the periods to
which such returns, reports or declarations apply, and (ii) there are no unpaid
taxes in any amount in violation of ss.8.1(b) hereof claimed to be due by the
taxing authority of any jurisdiction, and the respective officers of the
Borrowers and the Guarantors and their respective Subsidiaries know of no basis
for any such claim.
(b) To the Borrowers' knowledge, each Partially-Owned Entity
(i) has timely made or filed all federal, state and local income and all other
tax returns, reports and declarations required by any jurisdiction to which it
is subject, (ii) has paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and by appropriate proceedings and
except those which would not be in violation of ss.8.1(b) hereof, and (iii) has
set aside on its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply. To the best
- 54 -
<PAGE>
of the Borrowers' knowledge, except as otherwise disclosed in writing to the
Agent, there are no unpaid taxes in any amount in violation of ss.8.1(b) hereof
claimed to be due by the taxing authority of any jurisdiction from any
Partially-Owned Entity, and the officers of the Borrowers know of no basis for
any such claim.
ss.6.11. No Event of Default; No Materially Adverse Changes. No Default
or Event of Default has occurred and is continuing. Since March 31, 1997 there
has occurred no materially adverse change in the financial condition or business
of CRC and its Subsidiaries or CRLP and its Subsidiaries as shown on or
reflected in the SEC Filings or the consolidated balance sheet of CRC and its
Subsidiaries as at March 31, 1997, or the consolidated statement of income for
the fiscal quarter then ended, other than changes in the ordinary course of
business that have not had a Material Adverse Effect on the Borrowers,
Guarantors and their respective Subsidiaries, taken as a whole.
ss.6.12. Investment Company Acts. None of any Borrower, any Guarantor
or any of their respective Subsidiaries is an "investment company", or an
"affiliated company" or a "principal underwriter" of an "investment company", as
such terms are defined in the Investment Company Act of 1940.
ss.6.13. Absence of UCC Financing Statements, Etc. Except for Permitted
Liens, as of the Closing Date there will be no financing statement, security
agreement, chattel mortgage, real estate mortgage, equipment lease, financing
lease, option, encumbrance or other document filed or recorded with any filing
records, registry, or other public office, that purports to cover, affect or
give notice of any present or possible future lien or encumbrance on, or
security interest in, any Unencumbered Property. Neither any Borrower nor any
Guarantor has pledged or granted any lien on or security interest in or
otherwise encumbered or transferred any of their respective interests in any
Subsidiary (including in the case of CRC, its interests in CRLP, and in the case
of any Borrower, its interests in the Operating Subsidiaries) or in any
Partially-Owned Entity, except for the Harborside Pledged Interests pledged to
PSC in connection with the Harborside Transaction.
ss.6.14. Absence of Liens A Borrower or a Guarantor is the owner of or
the holder of a ground leasehold interest under an Eligible Ground Lease in the
Unencumbered Properties free from any lien, security interest, encumbrance and
any other claim or demand, except for Permitted Liens.
ss.6.15. Certain Transactions. Except as set forth on Schedule 6.15 or
for transactions that have been determined by the Board of Directors of the
relevant Borrower, Guarantor or Subsidiary (or its respective general partner)
to be on terms as favorable to such Person as in an arms-length transaction with
a third party, none of the officers, partners, directors, or employees of any
Borrower or any Guarantor or any of their respective Subsidiaries is presently a
party to any transaction with any Borrower, any Guarantor or any of their
respective Subsidiaries (other than for or in connection with services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the
- 55 -
<PAGE>
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
partner, director or such employee or, to the knowledge of the Borrowers, any
corporation, partnership, trust or other entity in which any officer, partner,
director, or any such employee or natural Person related to such officer,
partner, director or employee or other Person in which such officer, partner,
director or employee has a direct or indirect beneficial interest has a
substantial interest or is an officer, director, trustee or partner.
ss.6.16. Employee Benefit Plans.
ss6.16.1 In General. Each Employee Benefit Plan and each
Guaranteed Pension Plan has been maintained and operated in compliance
in all material respects with the provisions of ERISA and, to the
extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions and the
bonding of fiduciaries and other persons handling plan funds as
required by ss.412 of ERISA. The Borrowers have heretofore delivered to
the Agent the most recently completed annual report, Form 5500, with
all required attachments, and actuarial statement required to be
submitted under ss.103(d) of ERISA, with respect to each Guaranteed
Pension Plan.
ss6.16.2 Terminability of Welfare Plans. No Employee Benefit
Plan, which is an employee welfare benefit plan within the meaning of
ss.3(1) or ss.3(2)(B) of ERISA, provides benefit coverage subsequent to
termination of employment, except as required by Title I, Part 6 of
ERISA or the applicable state insurance laws. The Borrowers may
terminate each such Plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) in the discretion of
the Borrowers without material liability to any Person other than for
claims arising prior to termination.
ss6.16.3 Guaranteed Pension Plans. Each contribution required
to be made to a Guaranteed Pension Plan, whether required to be made to
avoid the incurrence of an accumulated funding deficiency, the notice
or lien provisions of ss.302(f) of ERISA, or otherwise, has been timely
made. No waiver of an accumulated funding deficiency or extension of
amortization periods has been received with respect to any Guaranteed
Pension Plan, and neither any Borrower or any Guarantor nor any ERISA
Affiliate is obligated to or has posted security in connection with an
amendment to a Guaranteed Pension Plan pursuant to ss.307 of ERISA or
ss.401(a)(29) of the Code. No liability to the PBGC (other than
required insurance premiums, all of which have been paid) has been
incurred by any Borrower or any Guarantor or any ERISA Affiliate with
respect to any Guaranteed Pension Plan and there has not been any ERISA
Reportable Event (other than an ERISA Reportable Event as to which the
requirement of 30 days notice has been waived), or any other event or
condition which presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC. Based on the latest valuation of
each Guaranteed Pension Plan (which in each
- 56 -
<PAGE>
case occurred within twelve months of the date of this representation),
and on the actuarial methods and assumptions employed for that
valuation, the aggregate benefit liabilities of all such Guaranteed
Pension Plans within the meaning of ss.4001 of ERISA did not exceed the
aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities,
by more than $500,000.
ss.6.16.4 Multiemployer Plans. Neither any Borrower nor any
Guarantor nor any ERISA Affiliate has incurred any material liability
(including secondary liability) to any Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan under
ss.4201 of ERISA or as a result of a sale of assets described in
ss.4204 of ERISA. Neither any Borrower nor any ERISA Affiliate has been
notified that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of ss.4241 or ss.4245 of ERISA or is at
material risk of entering reorganization or becoming insolvent, or that
any Multiemployer Plan intends to terminate or has been terminated
under ss.4041A of ERISA.
ss.6.17. Regulations U and X. The proceeds of the Loans shall be used
for the purposes described in ss.7.12. No portion of any Loan is to be used, and
no portion of any Letter of Credit is to be obtained, for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such terms are
used in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
ss.6.18. Environmental Compliance. The Borrowers have caused
environmental assessments to be conducted and/or taken other steps to
investigate the past and present environmental condition and usage of the Real
Estate and the operations conducted thereon. Except as disclosed in the
environmental assessments provided to the Agent pursuant to ss.10.7 and based
upon such assessments and/or investigation, to the Borrowers' knowledge, the
Borrowers have determined that:
(a) None of any Borrower, any Guarantor, any of their
respective Subsidiaries or any operator of the Real Estate or any portion
thereof, or any operations thereon is in violation, or alleged violation (in
writing), of any judgment, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under the
Resource Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Federal Clean
Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any
state or local statute, regulation, ordinance or order relating to health,
safety or the environment (hereinafter "Environmental Laws"), which violation or
alleged violation (in writing) has, or its remediation would have, by itself or
when aggregated with all such other violations or alleged violations, a Material
Adverse Effect or constitutes a Disqualifying Environmental Event.
- 57 -
<PAGE>
(b) None of any Borrower, any Guarantor or any of their
respective Subsidiaries has received notice from any third party, including,
without limitation, any federal, state or local governmental authority, (i) that
it has been identified by the United States Environmental Protection Agency
("EPA) as a potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B (1986),
(ii) that any hazardous waste, as defined by 42 U.S.C. ss.6903(5), any hazardous
substances as defined by 42 U.S.C. ss. 9601(14), any pollutant or contaminant as
defined by 42 U.S.C. ss.9601(33) or any toxic substances, oil or hazardous
materials or other chemicals or substances regulated by any Environmental Laws
("Hazardous Substances") which it has generated, transported or disposed of has
been found at any site at which a federal, state or local agency or other third
party has conducted or has ordered that any Borrower, any Guarantor or any of
their respective Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law, or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or otherwise) arising out of
any third party's incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Substances; which event
described in any such notice would have a Material Adverse Effect or constitutes
a Disqualifying Environmental Event.
(c) (i) No portion of the Real Estate has been used for the
handling, processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances is located on any
portion of any Real Estate except in accordance with applicable Environmental
Laws, (ii) in the course of any activities conducted by the Borrowers, the
Guarantors, their respective Subsidiaries or to the knowledge of the Borrowers,
without any independent inquiry other than as set forth in the environmental
assessments, the operators of the Real Estate, or any ground or space tenants on
any Real Estate, no Hazardous Substances have been generated or are being used
on such Real Estate except in accordance with applicable Environmental Laws,
(iii) there has been no present or past releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, disposing or
dumping (a "Release") or threatened Release of Hazardous Substances on, upon,
into or from the Real Estate, (iv) to the knowledge of the Borrowers without any
independent inquiry other than as set forth in the environmental assessments,
there have been no Releases on, upon, from or into any real property in the
vicinity of any of the Real Estate which, through soil or groundwater
contamination, may have come to be located on such Real Estate, and (v) any
Hazardous Substances that have been generated by a Borrower or a Guarantor or
any of their respective Subsidiaries at any of the Real Estate have been
transported off-site only by carriers having an identification number issued by
the EPA, treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental Laws; any
of which events described in clauses (i) through (v) above would have a Material
Adverse Effect, or constitutes a Disqualifying Environmental Event.
- 58 -
<PAGE>
(d) By virtue of the use of the Loans proceeds contemplated
hereby, or as a condition to the effectiveness of any of the Loan Documents,
none of any Borrower, any Guarantor or any of the Real Estate is subject to any
applicable Environmental Law requiring the performance of Hazardous Substances
site assessments, or the removal or remediation of Hazardous Substances, or the
giving of notice to any governmental agency or the recording or delivery to
other Persons of an environmental disclosure document or statement.
ss.6.19. Subsidiaries. As of the Closing Date, Schedule 6.19 sets forth
all of the respective Subsidiaries of CRC or CRLP and any other Borrower or
Guarantor, and Schedule 6.19 will be updated annually at the time of delivery of
the financial statements pursuant to ss.7.4(a) to reflect any changes, including
subsequent Guarantor and its Subsidiaries, if any.
ss.6.20. Loan Documents. All of the representations and warranties of
the Borrowers and the Guarantors made in this Agreement and in the other Loan
Documents or any document or instrument delivered to the Agent or the Lenders
pursuant to or in connection with any of such Loan Documents are true and
correct in all material respects and do not include any untrue statement of a
material fact or omit to state a material fact required to be stated or
necessary to make such representations and warranties not materially misleading.
ss.6.21. REIT Status. CRC has not taken any action that would prevent
it from maintaining its qualification as a REIT for its tax year ended December
31, 1996 or from maintaining such qualification at all times during the term of
the Loans.
ss.6.22. Subsequent Guarantors. The foregoing representations and
warranties in ss.6.3 through ss.6.20, as the same are true, correct and
applicable to Guarantors existing on the Closing Date, shall be true, correct
and applicable to each subsequent Guarantor in all material respects as of the
date it becomes a Guarantor.
ss.7. AFFIRMATIVE COVENANTS OF THE BORROWERS AND THE GUARANTORS. Each
of the Borrowers for itself and on behalf of each of the Guarantors (if and to
the extent expressly included in Subsections contained in this Section)
covenants and agrees that, so long as any Loan, Letter of Credit or Note is
outstanding or the Lenders have any obligation to make any Loans or any Lender
has any obligation to issue, extend or renew any Letters of Credit:
ss.7.1. Punctual Payment. The Borrowers will duly and punctually pay or
cause to be paid the principal and interest on the Loans and all interest, fees,
charges and other amounts provided for in this Agreement and the other Loan
Documents, all in accordance with the terms of this Agreement and the Notes, and
the other Loan Documents.
- 59 -
<PAGE>
ss.7.2. Maintenance of Office. Each of the Borrowers and the Guarantors
will maintain its chief executive office in Cranford, New Jersey, or at such
other place in the United States of America as each of them shall designate upon
written notice to the Agent to be delivered within five (5) days of such change,
where notices, presentations and demands to or upon the Borrowers and the
Guarantors, as the case may be, in respect of the Loan Documents may be given or
made.
ss.7.3. Records and Accounts. Each of the Borrowers and the Guarantors
will (a) keep true and accurate records and books of account in which full, true
and correct entries will be made in accordance with GAAP in all material
respects, and will cause each of its Subsidiaries that owns Real Estate to keep
true and accurate records and books of account in which full, true and correct
entries will be made in accordance with GAAP in all material respects, (b)
maintain adequate accounts and reserves for all taxes (including income taxes),
contingencies, depreciation and amortization of its properties and the
properties of its Subsidiaries and (c) at all times engage Price Waterhouse LLP
or other Accountants as the independent certified public accountants of CRC,
CRLP and their respective Subsidiaries and will not permit more than thirty (30)
days to elapse between the cessation of such firm's (or any successor firm's)
engagement as the independent certified public accountants of CRC, CRLP and
their respective Subsidiaries and the appointment in such capacity of a
successor firm as Accountants.
ss.7.4. Financial Statements, Certificates and Information. The
Borrowers will deliver and will cause CRC to deliver to the Agent:
(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each of its fiscal years:
(i) in the case of CRLP, if
prepared, the audited consolidated balance sheet of
CRLP and its subsidiaries at the end of such year,
and the related audited consolidated statements of
operations, owner's equity (deficit) and cash flows
for the year then ended, in each case (except for
statements of cash flow and owner's equity) with
supplemental consolidating schedules provided by
CRLP; and
(ii) in the case of CRC, the audited
consolidated balance sheet of CRC and its
subsidiaries (including, without limitation, CRLP and
its subsidiaries) at the end of such year, and the
related audited consolidated statements of
operations, stockholders' equity (deficit) and cash
flows for the year then ended, in each case with
supplemental consolidating schedules (except for
statements of cash flow and stockholders' equity)
provided by CRC;
- 60 -
<PAGE>
each setting forth in comparative form the figures for the previous fiscal year
and all such statements to be in reasonable detail, prepared in accordance with
GAAP, and, in each case, accompanied by an auditor's report prepared without
qualification by the Accountants;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of its fiscal quarters:
(i) in the case of CRLP, if
prepared, copies of the unaudited consolidated
balance sheet of CRLP and its subsidiaries as at the
end of such quarter, and the related unaudited
consolidated statements of operations, owner's equity
(deficit) and cash flows for the portion of CRLP's
fiscal year then elapsed, with supplemental
consolidating schedules (except with respect to
statements of cash flow and owner's equity) provided
by CRLP; and
(ii) in the case of CRC, copies of
the unaudited consolidated balance sheet of CRC and
its subsidiaries (including, without limitation, CRLP
and its subsidiaries) as at the end of such quarter,
and the related unaudited consolidated statements of
operations, stockholders' equity (deficit) and cash
flows for the portion of CRC's fiscal year then
elapsed, with supplemental consolidating schedules
(except with respect to statements of cash flow and
stockholders' equity) provided by CRC;
all in reasonable detail and prepared in accordance with GAAP on the same basis
as used in preparation of CRC's Form 10-Q statements filed with the SEC,
together with a certification by the chief financial officer of CRLP or CRC, as
applicable, that the information contained in such financial statements fairly
presents the financial position of CRLP or CRC (as the case may be) and its
subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement in the form
of Exhibit D hereto signed by the chief financial officer of the CRLP or CRC, as
applicable, and (if applicable) reconciliations to reflect changes in GAAP since
the applicable Financial Statement Date, but only to the extent that such
changes in GAAP affect the financial covenants set forth in ss.9 hereof; and, in
the case of CRLP, setting forth in reasonable detail computations evidencing
compliance with the covenants contained in ss.9 hereof;
(d) promptly if requested by the Agent, a copy of each report
(including any so-called letters of reportable conditions or letters of no
material weakness) submitted to any Borrower, CRC, or any other Guarantor or any
of their respective subsidiaries by the Accountants in connection with each
annual audit of the books of any Borrower, CRC, or any other Guarantor or such
subsidiary by such Accountants or in connection with any
- 61 -
<PAGE>
interim audit thereof pertaining to any phase of the business of any Borrower,
CRC or any other Guarantor or any such subsidiary;
(e) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature sent to the holders of any
Indebtedness of any Borrower or any Guarantor (other than the Loans) for
borrowed money, to the extent that the information or disclosure contained in
such material refers to or could reasonably be expected to have a Material
Adverse Effect;
(f) subject to subsection (g) below, contemporaneously with
the filing or mailing thereof, copies of all material of a financial nature
filed with the SEC or sent to the stockholders of CRC;
(g) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of CRC, copies of the Form
10-K statement filed by CRC with the SEC for such fiscal year, and as soon as
practicable, but in any event not later than forty-five (45) days after the end
of each fiscal quarter of CRC, copies of the Form 10-Q statement filed by CRC
with the SEC for such fiscal quarter, provided that, in either case, if CRC has
filed an extension for the filing of such statements, CRC shall deliver such
statements to the Agent within ten (10) days after the filing thereof with the
SEC which filing shall be within fifteen (15) days of CRC's filing for such
extension or such sooner time as required to avert a Material Adverse Effect on
CRC;
(h) from time to time, but not more frequently than once each
calendar quarter so long as no Default or Event of Default has occurred and is
continuing, such other financial data and information about the Borrowers, CRC,
the other Guarantors, their respective Subsidiaries, the Real Estate and the
Partially-Owned Entities as the Agent or any Lender acting through the Agent may
reasonably request, and which is prepared by such Person in the normal course of
its business or is required for securities and tax law compliance including
without limitation complete rent rolls for the Unencumbered Properties and
summary rent rolls for the other Real Estate, existing environmental reports,
and insurance certificates with respect to the Real Estate (including the
Unencumbered Properties) and tax returns (following the occurrence of a Default
or Event of Default or, in the case of CRC, to confirm CRC's REIT status); and
(i) simultaneously with the delivery of the financial
statements referred to in subsection (a) above, updates to Schedule 6.3 and
Schedule 6.19 hereto.
ss.7.5. Notices.
(a) Defaults. The Borrowers will, and will cause each
Guarantor, as applicable, to, promptly notify the Agent in writing of the
occurrence of any Default or Event of Default. If any Person shall give any
notice or take any other action in respect of (x) a claimed default (whether or
not constituting a Default or Event of Default under this
- 62 -
<PAGE>
Agreement) or (y) a claimed default by any Borrower, any Guarantor or any of
their respective Subsidiaries, as applicable, under any note, evidence of
Indebtedness, indenture or other obligation for borrowed money to which or with
respect to which any of them is a party or obligor, whether as principal,
guarantor or surety, and such default would permit the holder of such note or
obligation or other evidence of Indebtedness to accelerate the maturity thereof
or otherwise cause the entire Indebtedness to become due, the Borrower
Representative, CRC or such other Guarantor, as the case may be, shall forthwith
give written notice thereof to the Agent, describing the notice or action and
the nature of the claimed failure to comply.
(b) Environmental Events. Each Borrower will, and will cause
each Guarantor to, promptly give notice in writing to the Agent (i) upon such
Borrower's or such Guarantor's obtaining knowledge of any material violation of
any Environmental Law affecting any Real Estate or such Borrower's or such
Guarantor's operations or the operations of any of their Subsidiaries, (ii) upon
such Borrower's or such Guarantor's obtaining knowledge of any known Release of
any Hazardous Substance at, from, or into any Real Estate which it reports in
writing or is reportable by it in writing to any governmental authority and
which is material in amount or nature or which could materially adversely affect
the value of such Real Estate, (iii) upon such Borrower's or such Guarantor's
receipt of any notice of material violation of any Environmental Laws or of any
material Release of Hazardous Substances in violation of any Environmental Laws
or any matter that may be a Disqualifying Environmental Event, including a
notice or claim of liability or potential responsibility from any third party
(including without limitation any federal, state or local governmental
officials) and including notice of any formal inquiry, proceeding, demand,
investigation or other action with regard to (A) such Borrower's or such
Guarantor's or any other Person's operation of any Real Estate, (B)
contamination on, from or into any Real Estate, or (C) investigation or
remediation of off-site locations at which such Borrower or such Guarantor or
any of its predecessors are alleged to have directly or indirectly disposed of
Hazardous Substances, or (iv) upon such Borrower's or such Guarantor's obtaining
knowledge that any expense or loss has been incurred by such governmental
authority in connection with the assessment, containment, removal or remediation
of any Hazardous Substances with respect to which such Borrower or such
Guarantor or any Partially-Owned Entity may be liable or for which a lien may be
imposed on any Real Estate; any of which events described in clauses (i) through
(iv) above would have a Material Adverse Effect or constitute a Disqualifying
Environmental Event with respect to any Unencumbered Property.
(c) Notification of Claims against Unencumbered Properties.
Each Borrower will, and will cause each Guarantor to, promptly upon becoming
aware thereof, notify the Agent in writing of any setoff, claims, withholdings
or other defenses to which any of the Unencumbered Properties are subject, which
(i) would have a material adverse effect on the value of such Unencumbered
Property, (ii) would have a Material Adverse Effect, or (iii) with respect to
such Unencumbered Property, would constitute a Disqualifying Environmental Event
or a Lien which is not a Permitted Lien.
- 63 -
<PAGE>
(d) Notice of Litigation and Judgments. Each Borrower will,
and will cause each Guarantor and each Guarantor's Subsidiaries to, and the
Borrowers will cause each of their respective Subsidiaries to, give notice to
the Agent in writing within ten (10) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and proceedings an
adverse determination in which could reasonably be expected to have a Material
Adverse Effect or materially adversely affect any Unencumbered Property, or to
which any Borrower, any Guarantor or any of their respective Subsidiaries is or
is to become a party involving an uninsured claim against any Borrower, any
Guarantor or any of their respective Subsidiaries that could reasonably be
expected to have a Materially Adverse Effect or materially adversely affect the
value or operation of the Unencumbered Properties and stating the nature and
status of such litigation or proceedings. Each Borrower will, and will cause
each of the Guarantors and the Subsidiaries to, give notice to the Agent, in
writing, in form and detail reasonably satisfactory to the Agent, within ten
(10) days of any judgment not covered by insurance, final or otherwise, against
any Borrower, any Guarantor or any of their Subsidiaries in an amount in excess
of $1,000,000.
(e) Acquisition of Real Estate. The Borrower Representative
shall promptly provide the Agent and the Lenders with any press releases
relating to the acquisition of any Real Estate by any Borrower, any Guarantor,
any of their respective Subsidiaries or any Partially-Owned Entity. In addition,
to the extent not otherwise provided to the Agent in its press release and Form
10-Q filings with the SEC, the Borrower Representative shall provide to the
Agent on a quarterly basis together with the financial statements referred to in
ss.7.4(b) the following information with respect to all Real Estate acquired
during the prior quarter: its address, a brief description, a brief summary of
the key business terms of such acquisition (including sources and uses of funds
for such acquisition), a brief summary of the principal terms of any financing
for such Real Estate, and a statement as to whether such Real Estate qualifies
as an Unencumbered Property.
ss.7.6. Existence of Borrowers and Subsidiary Guarantors; Maintenance
of Properties. Each of the Borrowers for itself and for each Subsidiary
Guarantor insofar as any such statements relate to such Subsidiary Guarantor
will do or cause to be done all things necessary to, and shall, preserve and
keep in full force and effect its existence as a limited partnership or its
existence as another legally constituted entity, and will do or cause to be done
all things necessary to preserve and keep in full force all of its material
rights and franchises and those of its Subsidiaries. Each Borrower (a) will
cause all necessary repairs, renewals, replacements, betterments and
improvements to be made to all Real Estate owned or controlled by it or by any
of its Subsidiaries or any Subsidiary Guarantor, all as in the judgment of such
Borrower or such Subsidiary or such Subsidiary Guarantor may be necessary so
that the business carried on in connection therewith may be properly conducted
at all times, subject to the terms of the applicable Leases and partnership
agreements or other entity charter documents, (b) will cause all of its other
properties and those of its Subsidiaries and the Subsidiary Guarantors used or
useful in the conduct of its business or
- 64 -
<PAGE>
the business of its Subsidiaries or such Subsidiary Guarantor to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment, ordinary wear and tear excepted, and (c) will, and will
cause each of its Subsidiaries and each Subsidiary Guarantor to, continue to
engage primarily in the businesses now conducted by it and in related businesses
consistent with the requirements of the fourth sentence of ss.7.7 hereof;
provided that nothing in this ss.7.6 shall prevent any Borrower from
discontinuing the operation and maintenance of any of its properties or any of
those of its Subsidiaries if such discontinuance is, in the judgment of such
Borrower, desirable in the conduct of its or their business and such
discontinuance does not cause a Default or an Event of Default hereunder and
does not in the aggregate have a Material Adverse Effect on the Borrowers,
Guarantors and their respective Subsidiaries taken as a whole.
ss.7.7. Existence of CRC; Maintenance of REIT Status of CRC;
Maintenance of Properties. The Borrowers will cause CRC to do or cause to be
done all things necessary to preserve and keep in full force and effect CRC's
existence as a Maryland corporation. The Borrowers will cause CRC at all times
to maintain its status as a REIT and not to take any action which could lead to
its disqualification as a REIT. The Borrowers shall cause CRC at all times to
maintain its listing on the New York Stock Exchange. The Borrowers will cause
CRC to continue to operate as a fully-integrated, self-administered and
self-managed real estate investment trust which, together with its Subsidiaries
(including, without limitation CRLP) owns and operates an improved property
portfolio comprised primarily (i.e., 85% or more by value) of office,
office/flex, warehouse and industrial/warehouse properties. The Borrowers will
cause CRC not to engage in any business other than the business of acting as a
REIT and serving as the general partner and limited partner of CRLP, as a
member, partner or stockholder of other Persons and as a Guarantor. The
Borrowers shall cause CRC to conduct all or substantially all of its business
operations through CRLP or through subsidiary partnerships or other entities in
which (x) CRLP directly or indirectly owns at least 95% of the economic
interests and (y) CRC directly or indirectly (through wholly-owned Subsidiaries)
acts as sole general partner or managing member. The Borrowers shall cause CRC
not to own real estate assets outside of its interests in CRLP. The Borrowers
will cause CRC to do or cause to be done all things necessary to preserve and
keep in full force all of its rights and franchises and those of its
Subsidiaries. The Borrowers will cause CRC (a) to cause all of its properties
and those of its Subsidiaries used or useful in the conduct of its business or
the business of its Subsidiaries to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment, ordinary
wear and tear excepted, (b) to cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
CRC may be necessary so that the business carried on in connection therewith may
be properly conducted at all times, and (c) to cause each of its Subsidiaries to
continue to engage primarily in the businesses now conducted by it and in
related businesses, consistent with the requirements of the fourth sentence of
this ss.7.7; provided that nothing in this ss.7.7 shall prevent CRC from
discontinuing the operation and maintenance of any of its properties or any of
those of its Subsidiaries if such discontinuance is, in the judgment of CRC,
desirable in the conduct of its or their business and such discontinuance does
not cause a
- 65 -
<PAGE>
Default or an Event of Default hereunder and does not in the aggregate
materially adversely affect the business of CRC and its Subsidiaries on a
consolidated basis.
ss.7.8. Insurance. Each Borrower will, and will cause each Guarantor
to, maintain with respect to its properties, and will cause each of its
Subsidiaries to maintain with financially sound and reputable insurers,
insurance with respect to such properties and its business against such
casualties and contingencies as shall be commercially reasonable and in
accordance with the customary and general practices of businesses having similar
operations and real estate portfolios in similar geographic areas and in
amounts, containing such terms, in such forms and for such periods as may be
reasonable and prudent for such businesses.
ss.7.9. Taxes. Each Borrower will, and will cause each Guarantor to,
pay or cause to be paid real estate taxes, other taxes, assessments and other
governmental charges against the Real Estate before the same become delinquent
and will duly pay and discharge, or cause to be paid and discharged, before the
same shall become overdue, all taxes, assessments and other governmental charges
imposed upon its sales and activities, or any part thereof, or upon the income
or profits therefrom, as well as all claims for labor, materials, or supplies
that if unpaid might by law become a lien or charge upon any of the Real Estate;
provided that any such tax, assessment, charge, levy or claim need not be paid
if the validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if such Borrower or such Guarantor shall have set
aside on its books adequate reserves with respect thereto; and provided further
that such Borrower or such Guarantor will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor. If requested by
the Agent, the Borrowers will provide evidence of the payment of real estate
taxes, other taxes, assessments and other governmental charges against the Real
Estate in the form of receipted tax bills or other form reasonably acceptable to
the Agent. Notwithstanding the foregoing, a breach of the covenants set forth in
this ss.7.9 shall only constitute an Event of Default if such breach results in
a violation of the covenant set forth in ss.8.1(b) hereof.
ss.7.10. Inspection of Properties and Books. Each Borrower will, and
will cause each Guarantor to, permit the Lenders, coordinated through the Agent,
(a) on an annual basis as a group, or more frequently if required by law or by
regulatory requirements of a Lender or if a Default or an Event of Default shall
have occurred and be continuing, to visit and inspect any of the properties of
any Borrower, any Guarantor or any of their respective Subsidiaries, and to
examine the books of account of the Borrowers, the Guarantors and their
respective Subsidiaries (and to make copies thereof and extracts therefrom) and
(b) to discuss the affairs, finances and accounts of the Borrowers, the
Guarantors and their respective Subsidiaries with, and to be advised as to the
same by, its officers, all at such reasonable times and intervals during normal
business hours as the Agent may reasonably request; provided that the Borrowers
shall only be responsible for the costs and expenses incurred by the Agent in
connection with such inspections after the occurrence and during the continuance
of an Event of Default; and provided further that such Person has executed a
- 66 -
<PAGE>
confidentiality agreement in substantially the form executed by Fleet as of the
date hereof. The Agent and each Lender agrees to treat any non-public
information delivered or made available by the Borrowers to it in accordance
with the provisions of the confidentiality agreement executed by such Person.
ss.7.11. Compliance with Laws, Contracts, Licenses, and Permits. Each
Borrower will, and will cause each Guarantor to, comply with, and will cause
each of their respective Subsidiaries to comply with (a) all applicable laws and
regulations now or hereafter in effect wherever its business is conducted,
including, without limitation, all Environmental Laws and all applicable federal
and state securities laws, (b) the provisions of its partnership agreement and
certificate or corporate charter and other charter documents and by-laws, as
applicable, (c) all material agreements and instruments to which it is a party
or by which it or any of its properties may be bound (including the Real Estate
and the Leases) and (d) all applicable decrees, orders, and judgments; provided
that any such decree, order or judgment need not be complied with if the
validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if such Borrower or such Guarantor shall have set
aside on its books adequate reserves with respect thereto; and provided further
that such Borrower or such Guarantor will comply with any such, decree, order or
judgment forthwith upon the commencement of proceedings to foreclose any Lien
that may have attached as security therefor.
ss.7.12. Use of Proceeds. Subject at all times to the other provisions
this Agreement, the Borrowers will use the proceeds of the Loans solely (a) to
finance the acquisition, renovation and development of office, office/flex,
industrial/warehouse and multifamily residential properties, (b) to finance the
repayment of Indebtedness, and (c) for general working capital needs (including
letters of credit).
ss.7.13. Acquisition of Unencumbered Properties. The Borrowers shall
promptly, but in any event within thirty (30) days of the acquisition of an
Unencumbered Property or the qualification of any Real Estate as an Unencumbered
Property, deliver to the Agent a copy of the Title Policy or commitment for a
Title Policy and the final environmental site assessment for such Unencumbered
Property.
ss.7.14. Additional Guarantors; Solvency of Guarantors.
(a) If, after the Closing Date, a Subsidiary, that is not a
Borrower or Guarantor, acquires any Real Estate that then or thereafter
qualifies under (a)-(d) of the definition of Unemcumbered Property, the
Borrowers shall cause such Person (which Person must be or become a wholly-owned
Subsidiary) to execute and deliver a Guaranty to the Agent and the Lenders in
substantially the form of Exhibit B hereto. Such Guaranty shall evidence
consideration and equivalent value. The Borrowers will not permit any Guarantor
that owns or ground leases any Unencumbered Properties to have any Subsidiaries
unless such Subsidiary's business, obligations and undertakings are exclusively
related to the business of such Guarantor in the ownership of the Unencumbered
Properties.
- 67 -
<PAGE>
(b) Each Borrower, CRC, and each Subsidiary Guarantor is
solvent, other than for Permitted Event(s) permitted by this Agreement which
shall be the only Non-Material Breaches under this ss.7.14(b).
ss.7.15. Further Assurances. Each Borrower will, and will cause each
Guarantor to, cooperate with, and to cause each of its Subsidiaries to cooperate
with, the Agent and the Lenders and execute such further instruments and
documents as the Lenders or the Agent shall reasonably request to carry out to
their reasonable satisfaction the transactions contemplated by this Agreement
and the other Loan Documents.
ss.7.16. [Intentionally Omitted]
ss.7.17. Environmental Indemnification. The Borrowers jointly and
severally covenant and agree that they will indemnify and hold the Agent and
each Lender, and each of their respective Affiliates, harmless from and against
any and all claims, expense, damage, loss or liability incurred by the Agent or
any Lender (including all reasonable costs of legal representation incurred by
the Agent or any Lender in connection with any investigative, administrative or
judicial proceeding, whether or not the Agent or any Lender is party thereto,
but excluding, as applicable for the Agent or a Lender, any claim, expense,
damage, loss or liability as a result of the gross negligence or willful
misconduct of the Agent or such Lender or any of their respective Affiliates)
relating to (a) any Release or threatened Release of Hazardous Substances on any
Real Estate; (b) any violation of any Environmental Laws with respect to
conditions at any Real Estate or the operations conducted thereon; (c) the
investigation or remediation of off-site locations at which any Borrower, any
Guarantor or any of their respective Subsidiaries or their predecessors are
alleged to have directly or indirectly disposed of Hazardous Substances; or (d)
any action, suit, proceeding or investigation brought or threatened with respect
to any Hazardous Substances relating to Real Estate (including, but not limited
to, claims with respect to wrongful death, personal injury or damage to
property). In litigation, or the preparation therefor, the Lenders and the Agent
shall be entitled to select their own counsel and participate in the defense and
investigation of such claim, action or proceeding, and the Borrowers shall bear
the expense of such separate counsel of the Agent and the Lenders if (i) in the
written opinion of counsel to the Agent and the Lenders, use of counsel of the
Borrowers' choice could reasonably be expected to give rise to a conflict of
interest, (ii) the Borrowers shall not have employed counsel reasonably
satisfactory to the Agent and the Lenders within a reasonable time after notice
of the institution of any such litigation or proceeding, or (iii) the Borrower
Representative authorizes the Agent and the Lenders to employ separate counsel
at the Borrowers' expense. It is expressly acknowledged by each Borrower that
this covenant of indemnification shall survive the payment of the Loans and
shall inure to the benefit of the Agent and the Lenders and their respective
Affiliates, their respective successors, and their respective assigns under the
Loan Documents permitted under this Agreement.
- 68 -
<PAGE>
ss.7.18. Response Actions. Each Borrower covenants and agrees that if
any Release or disposal of Hazardous Substances shall occur or shall have
occurred on any Real Estate owned by it or any of its Subsidiaries, such
Borrower will cause the prompt containment and removal of such Hazardous
Substances and remediation of such Real Estate if necessary to comply with all
Environmental Laws.
ss.7.19. Environmental Assessments. If the Majority Lenders have
reasonable grounds to believe that a Disqualifying Environmental Event has
occurred with respect to any Unencumbered Property, after reasonable notice by
the Agent, whether or not a Default or an Event of Default shall have occurred,
the Majority Lenders may determine that the affected Real Estate no longer
qualifies as an Unencumbered Property; provided that prior to making such
determination, the Agent shall give the Borrower Representative reasonable
notice and the opportunity to obtain one or more environmental assessments or
audits of such Unencumbered Property prepared by a hydrogeologist, an
independent engineer or other qualified consultant or expert approved by the
Agent, which approval will not be unreasonably withheld, to evaluate or confirm
(i) whether any Release of Hazardous Substances has occurred in the soil or
water at such Unencumbered Property and (ii) whether the use and operation of
such Unencumbered Property materially complies with all Environmental Laws
(including not being subject to a matter that is a Disqualifying Environmental
Event). Such assessment will then be used by the Agent to determine whether a
Disqualifying Environmental Event has in fact occurred with respect to such
Unencumbered Property. All such environmental assessments shall be at the sole
cost and expense of the Borrowers.
ss.7.20. Employee Benefit Plans.
(a) In General. Each Employee Benefit Plan maintained by any
Borrower, any Guarantor or any of their respective ERISA Affiliates will be
operated in compliance in all material respects with the provisions of ERISA
and, to the extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions.
(b) Terminability of Welfare Plans. With respect to each
Employee Benefit Plan maintained by any Borrower, any Guarantor or any of their
respective ERISA Affiliates which is an employee welfare benefit plan within the
meaning of ss.3(1) or ss.3(2)(B) of ERISA, such Borrower, such Guarantor, or any
of their respective ERISA Affiliates, as the case may be, has the right to
terminate each such plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) without material liability
other than liability to pay claims incurred prior to the date of termination.
(c) Unfunded or Underfunded Liabilities. The Borrowers will
not, and will not permit any Guarantor to, at any time, have accruing or accrued
unfunded or underfunded liabilities with respect to any Employee Benefit Plan,
Guaranteed Pension Plan or Multiemployer Plan, or permit any condition to exist
under any Multiemployer Plan that would create a withdrawal liability.
- 69 -
<PAGE>
ss.7.21. No Amendments to Certain Documents. The Borrowers will not,
and will not permit any Guarantor to, at any time cause or permit its
certificate of limited partnership, agreement of limited partnership, articles
of incorporation, by-laws or other charter documents, as the case may be, to be
modified, amended or supplemented in any respect whatever, without (in each
case) the express prior written consent or approval of the Agent, if such
changes would adversely affect CRC's REIT status or otherwise materially
adversely affect the rights of the Agent and the Lenders hereunder or under any
other Loan Document.
ss.7.22. Primary Credit Facility. The Borrowers will at all times use
this Agreement as the Borrower's primary revolving credit agreement and will not
at any time during the term of this Agreement permit that ratio of (a) the sum
of the outstanding principal balance of the Loans plus the Maximum Drawing
Amount to (b) the Total Commitment to be less than the corresponding ratio under
any other revolving credit agreement maintained by any Borrower or any
Guarantor, including CRC.
ss.7.23. Management. Except by reason of death or incapacity, at least
three (3) of the Key Management Individuals (as hereinafter defined) shall
remain active in the executive and/or operational management, in their current
(or comparable) positions, of CRC (which is and shall remain the sole general
partner and management of CRLP); provided, however, if at least three (3) of the
Key Management Individuals are not so active in such positions (except by reason
of death or incapacity as aforesaid), then within ninety (90) days of the
occurrence of such event, CRC shall propose and appoint such individual(s) of
comparable experience, reputation and otherwise reasonably acceptable to the
Majority Lenders to such position(s) such that, after such appointment, such
acceptable replacement individuals, together with the Key Management Individuals
remaining so active in such positions with CRC, if any, total at least three
(3). For purposes hereof, "Key Management Individuals" shall mean and include
John J. Cali, Thomas A. Rizk, John R. Cali, Brant B. Cali, and Barry Lefkowitz.
ss.7.24. Distributions in the Ordinary Course. In the ordinary course
of business CRLP causes all of its and CRC's Subsidiaries to make Distributions,
as described in clause (iii) of the definition thereof, upstream to CRLP and
CRC, and shall continue to follow such ordinary course of business.
ss.8. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS AND THE GUARANTORS.
Each Borrower for itself and on behalf of the Guarantors covenants and agrees
that, so long as any Loan, Letter of Credit or Note is outstanding or any of the
Lenders has any obligation to make any Loans or any Lender has any obligation to
issue, extend or renew any Letters of Credit:
ss.8.1. Restrictions on Indebtedness.
- 71 -
<PAGE>
The Borrowers and the Guarantors may, and may permit their respective
Subsidiaries to, create, incur, assume, guarantee or be or remain liable for,
contingently or otherwise, any Indebtedness other than the specific Indebtedness
which is prohibited under this ss.8.1 and with respect to which each of the
Borrowers and the Guarantors will not, and will not permit any Subsidiary to,
create, incur, assume, guarantee or be or remain liable for, contingently or
otherwise, singularly or in the aggregate as follows:
(a) Indebtedness which would result in a Default or Event of
Default under ss.9 hereof or under any other provision of this Agreement;
(b) An aggregate amount in excess of $5,000,000 at any one
time in respect of (i) taxes, assessments, governmental charges or levies and
claims for labor, materials and supplies for which payment therefor is required
to be made in accordance with the provisions of ss.7.9 and has not been timely
made, (ii) uninsured judgments or awards, with respect to which the applicable
periods for taking appeals have expired, or with respect to which final and
unappealable judgments or awards have been rendered, and (iii) current unsecured
liabilities incurred in the ordinary course of business, which (A) are overdue
for more than sixty (60) days, and (B) are not being contested in good faith.
The terms and provisions of this ss.8.1 are in addition to, and not in
limitation of, the covenants set forth in ss.9 of this Agreement.
ss.8.2. Restrictions on Liens, Etc. None of any Borrower, any
Guarantor, any Operating Subsidiary and any wholly-owned Subsidiary will: (a)
create or incur or suffer to be created or incurred or to exist any lien,
encumbrance, mortgage, pledge, charge, restriction or other security interest of
any kind upon any of its property or assets of any character whether now owned
or hereafter acquired, or upon the income or profits therefrom; (b) transfer any
of such property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (c) acquire, or
agree or have an option to acquire, any property or assets upon conditional sale
or other title retention or purchase money security agreement, device or
arrangement; (d) suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand
against it that if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; or (e)
sell, assign, pledge or otherwise transfer any accounts, contract rights,
general intangibles, chattel paper or instruments, with or without recourse (the
foregoing items (a) through (e) being sometimes referred to in this ss.8.2
collectively as "Liens"), provided that the Borrowers, the Guarantors and any
Subsidiary may create or incur or suffer to be created or incurred or to exist:
(i) Liens securing taxes, assessments, governmental charges
(including, without limitation, water, sewer and similar charges) or levies or
claims for labor, material and supplies, the Indebtedness with respect to which
is not prohibited by ss.8.1(b);
- 72 -
<PAGE>
(ii) deposits or pledges made in connection with, or to secure
payment of, worker's compensation, unemployment insurance, old age pensions or
other social security obligations; and deposits with utility companies and other
similar deposits made in the ordinary course of business;
(iii) Liens (other than affecting the Unencumbered Properties)
in respect of judgments or awards, the Indebtedness with respect to which is not
prohibited by ss.8.1(b);
(iv) encumbrances on properties consisting of easements,
rights of way, covenants, notice of use limitations under Environmental Laws,
restrictions on the use of real property and defects and irregularities in the
title thereto; landlord's or lessor's Liens under Leases to which any Borrower,
any Guarantor, or any Subsidiary is a party or bound; purchase options granted
at a price not less than the market value of such property; and other similar
Liens or encumbrances on properties, none of which interferes materially and
adversely with the use of the property affected in the ordinary conduct of the
business of the owner thereof, and which matters neither (x) individually or in
the aggregate have a Material Adverse Effect nor (xx) make title to such
property unmarketable by the conveyancing standards in effect where such
property is located;
(v) any Leases (excluding "synthetic leases") entered into
good faith with Persons that are not Affiliates; provided that Leases with
Affiliates on market terms and with monthly market rent payments required to be
paid are Permitted Liens;
(vi) Liens and other encumbrances or rights of others which
exist on the date of this Agreement and which do not otherwise constitute a
breach of this Agreement;
(vii) as to Real Estate which are acquired after the date of
this Agreement, Liens and other encumbrances or rights of others which exist on
the date of acquisition and which do not otherwise constitute a breach of this
Agreement;
(viii) Liens affecting the Unencumbered Properties in respect
of judgments or awards that have been in force for less than the applicable
period for taking an appeal, so long as execution is not levied thereunder or in
respect of which, at the time, a good faith appeal or proceeding for review is
being prosecuted, and in respect of which a stay of execution shall have been
obtained pending such appeal or review; provided that the Borrowers shall have
obtained a bond or insurance with respect thereto to the Agent's reasonable
satisfaction;
(ix) Liens securing Indebtedness for the purchase price of
capital assets (other than Real Estate but including Indebtedness in respect of
Capitalized Leases for equipment and other equipment leases) to the extent not
otherwise prohibited by ss.8.1; and
- 73 -
<PAGE>
(x) other Liens (other than affecting the Unencumbered
Properties) in connection with any Indebtedness not prohibited under ss.8.1
which do not otherwise result in a Default or Event of Default under this
Agreement.
Notwithstanding the foregoing provisions of this ss.8.2, the failure of
any Unencumbered Property to comply with the covenants set forth in this ss.8.2
shall result in such Unencumbered Property's no longer qualifying as
Unencumbered Property under this Agreement, but such disqualification shall not
by itself constitute a Default or Event of Default, unless the cause of such
non-qualification otherwise constitutes a Default or an Event of Default.
ss.8.3. Restrictions on Investments. None of any Borrower, any
Guarantor, or any Subsidiary will make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of purchase;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets in
excess of $1,000,000,000 provided that any such deposits may be moved to a
qualifying bank within thirty (30) days after any Borrower, Guarantor or
Subsidiary has knowledge that any depository bank no longer has total assets in
excess of such amounts;
(c) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United States of
America or any state thereof, or in both cases any governmental subdivision,
that at the time of purchase have been rated and the ratings for which are not
less than "P 1" if rated by Moody's, and not less than "A 1" if rated by S&P;
(d) Investments existing on the Closing Date and listed on
Schedule 8.3(d) hereto;
(e) So long as no Event of Default enumerated in ss.8.7(a)(ii)
has occurred and is continuing or would occur after giving effect thereto,
acquisitions of Real Estate consistent with the requirements of the fourth
sentence of ss.7.7 hereof and the equity of Persons, provided (i) that within
thirty (30) days after any such Investment the total assets of CRLP, CRC and
their Subsidiaries, taken as a whole, shall be comprised of assets of which
eighty five percent (85%) or more comply with the parameters of the fourth
sentence of ss.7.7 hereof and (ii) that the Borrowers shall not permit any of
their Subsidiaries which is not a Borrower or a Guarantor, or which does not
become a Borrower or a Guarantor, to acquire any Unencumbered Property, and in
all cases such Borrower or Guarantor shall be a wholly-owned Subsidiary of CRLP;
- 74 -
<PAGE>
(f) any Investments now or hereafter made in any Borrower,
Guarantor or other Subsidiary, as identified or which will be identified from
time to time in Schedule 8.3(f) hereto, which Schedule 8.3(f) shall be updated
annually at the time of the delivery of the financial statements referred to in
ss. 7.4(a) hereof;
(g) Investments in respect of (1) equipment, inventory and
other tangible personal property acquired in the ordinary course of business,
(2) current trade and customer accounts receivable for services rendered in the
ordinary course of business and payable in accordance with customary trade
terms, (3) advances to employees for travel expenses, drawing accounts and
similar expenditures, and (4) prepaid expenses made in the ordinary course of
business;
(h) any other Investments made in the ordinary course of
business and consistent with past business practices;
(i) interest rate hedges in connection with Indebtedness; and
(j) shares of so-called "money market funds" registered with
the SEC under the Investment Company Act of 1940 which maintain a level
per-share value, invest principally in marketable direct or guaranteed
obligations of the United States of America and agencies and instrumentalities
thereof, and have total assets in excess of $50,000,000 provided that any such
shares are moved to a qualifying money market fund within thirty (30) days after
any Borrower, Guarantor or any Subsidiary has knowledge that any money market
fund no longer has total assets in excess of that amount.
ss.8.4. Merger, Consolidation and Disposition of Assets.
None of any Borrower, any Guarantor, any Operating Subsidiary or any
wholly-owned Subsidiary will:
(a) Become a party to any merger, consolidation or
reorganization without the prior written consent of the Lenders, except that so
long as no Default or Event of Default has occurred and is continuing, or would
occur after giving effect thereto, the merger, consolidation or reorganization
of one or more Persons with and into any Borrower, any Guarantor, or any
wholly-owned Subsidiary, shall be permitted if such action is not hostile, any
Borrower, any Guarantor, or any wholly-owned Subsidiary, as the case may be, is
the surviving entity and such merger, consolidation or reorganization does not
cause a breach of ss.7.23 hereof provided that for any such merger,
consolidation or reorganization (other than (w) the merger or consolidation of
one or more Subsidiaries of CRLP with and into CRLP, (x) the merger or
consolidation of two or more Subsidiaries of CRLP, (y) the merger or
consolidation of one or more Subsidiaries of CRC with and into CRC, or (z) the
merger or consolidation of two or more Subsidiaries of CRC), the Borrowers shall
provide to the Agent a statement in the form of Exhibit D hereto signed by the
chief financial officer or treasurer or other thereon designated officer of the
Borrower Representative and setting
- 75 -
<PAGE>
forth in reasonable detail computations evidencing compliance with the covenants
contained in ss.9 hereof and certifying that no Default or Event of Default has
occurred and is continuing, or would occur and be continuing after giving effect
to such merger, consolidation or reorganization and all liabilities, fixed or
contingent, pursuant thereto;
(b) Sell, transfer or otherwise dispose of (collectively and
individually, "Sell" or a "Sale") or grant a Lien to secure Indebtedness (an
"Indebtedness Lien") on any of its now owned, ground leased or hereafter
acquired assets without obtaining the prior written consent of the Required
Lenders, except after written notice to the Agent for:
(i) the Sale of or granting of an Indebtedness Lien on any
Unencumbered Property or other Real Estate so long as no Default or
Event of Default has then occurred and is continuing, or would occur
and be continuing after giving effect to such Sale or Indebtedness
Lien; provided, that prior to any Sale of any Unencumbered Property or
other Real Estate or the granting of an Indebtedness Lien under this
clause (i), the Borrowers shall provide to the Agent a statement in the
form of Exhibit D hereto signed by the chief financial officer or
treasurer or other thereon designated officer of the Borrower
Representative and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in ss.9 hereof and
certifying that no Default or Event of Default has occurred and is
continuing, or would occur and be continuing after giving effect to
such proposed Sale or Indebtedness Lien and all liabilities, fixed or
contingent, pursuant thereto;
(ii) the Sale of or the granting of an Indebtedness Lien on
any Unencumbered Property while a Default or Event of Default (other
than a Default or an Event of Default under ss.12.1(a) (including,
without limitation, any such failure to pay resulting from acceleration
of the Loans), ss.12.1(b), ss.12.1(c) (resulting from a failure to
comply with ss.7.7(as to the legal existence and REIT status of CRC) or
ss.9), ss.12.1(g), ss.12.1(h), or ss.12.1(j)) has then occurred and is
continuing or would occur and be continuing after giving effect to such
Sale or Indebtedness Lien; provided, that the Borrowers shall (A) apply
the net proceeds of each such permitted Sale or Indebtedness Lien to
the repayment of the Loans or (B) segregate the net proceeds of such
permitted Sale or Indebtedness Lien in an escrow account with the Agent
or with a financial institution reasonably acceptable to the Agent and
apply such net proceeds solely to a qualified, deferred exchange under
ss. 1031 of the Code or to another use with the prior written approval
of the Required Lenders or (C) complete an exchange of such
Unencumbered Property for other real property of equivalent value under
ss. 1031 of the Code so long as such other real property becomes an
Unencumbered Property upon acquisition, and, in any event, the
Borrowers shall provide to the Agent a statement in the form of Exhibit
D hereto signed by the chief financial officer, or treasurer or other
thereon designated officer and setting forth in reasonable detail
computations evidencing compliance with the covenant in ss.9 hereof and
certifying the use of the proceeds of such Sale or Indebtedness Lien
and certifying that no Default or Event of Default above enumerated has
occurred and is
- 76 -
<PAGE>
continuing or would occur and be continuing after giving effect to such
Sale or Indebtedness Lien, and all liabilities fixed or contingent
pursuant thereto;
(iii) the Sale of or the granting of an Indebtedness Lien on
any Real Estate (other than an Unencumbered Property) while a Default
or Event of Default has then occurred and is continuing or would occur
and be continuing after giving effect to such Sale or Indebtedness
Lien; provided, that the Borrowers shall (A) apply the net proceeds of
each such Sale or Indebtedness Lien to the repayment of the Loans or
(B) segregate the net proceeds of such Sale or Indebtedness Lien in an
escrow account with the Agent or with a financial institution
reasonably acceptable to the Agent and apply such net proceeds solely
to a qualified, deferred exchange under ss. 1031 of the Code or to
another use with the prior written approval of the Required Lenders or
(C) complete an exchange of such Real Estate for other real property of
equivalent value under ss. 1031 of the Code;
(iv) the Sale or granting of an Indebtedness Lien on any
Unencumbered Property while any Default or Event of Default has then
occurred and is continuing provided (A) the Borrowers shall provide to
the Agent a statement in the form of Exhibit D hereto signed by the
chief financial officer or treasurer or other thereon designated
officer of the Borrower Representative and setting forth in reasonable
detail computations evidencing the status of compliance with the
covenants contained in ss.9 hereof and certifying that the continuing
Default or Event of Default will be cured by such proposed Sale or
Indebtedness Lien and no other Default or Event of Default would occur
and be continuing after giving effect to such proposed Sale or
Indebtedness Lien and all liabilities fixed or contingent, pursuant
thereto and (B) the Sale or granting or an Indebtedness Lien pursuant
to this ss.8.4(b) (iv) shall not (x) occur more than twice during the
period that any Commitment is outstanding, (y) involve a Sale or
Indebtedness Lien for greater than $50,000,000 in either of the two
permitted occasions under (x), or (z) involve a Sale at less than fair
market value or an Indebtedness Lien on terms more onerous or expensive
than fair market terms from institutional lenders; and
(v) the Sale of or the granting of an Indebtedness Lien on any
of its now owned or hereafter acquired assets (other than Real Estate)
in one or more transactions.
ss.8.5. Negative Pledge. From and after the date hereof, neither any
Borrower nor any Guarantor will, and will not permit any Subsidiary to, enter
into any agreement containing any provision prohibiting the creation or
assumption of any Lien upon its properties (other than prohibitions on liens for
particular assets (other than an Unencumbered Property) set forth in a security
instrument in connection with Secured Indebtedness for such assets and the
granting or effect of such liens does not otherwise constitute a Default or
Event of Default), revenues or assets, whether now owned or hereafter acquired,
or restricting the ability of the Borrowers or the Guarantors to amend or
- 77 -
<PAGE>
modify this Agreement or any other Loan Document. The Borrowers shall be
permitted a period of (i) thirty (30) days to cure any Non-Material Breach
affecting other than CRC or CRLP and (ii) ten (10) days to cure any Non-Material
Breach affecting CRC or CRLP under this ss.8.5 before the same shall be an Event
of Default under ss.12.1(c).
ss.8.6. Compliance with Environmental Laws. None of any Borrower, any
Guarantor, or any Subsidiary will do any of the following: (a) use any of the
Real Estate or any portion thereof as a facility for the handling, processing,
storage or disposal of Hazardous Substances except for quantities of Hazardous
Substances used in the ordinary course of business and in compliance with all
applicable Environmental Laws, (b) cause or permit to be located on any of the
Real Estate any underground tank or other underground storage receptacle for
Hazardous Substances except in compliance with Environmental Laws, (c) generate
any Hazardous Substances on any of the Real Estate except in compliance with
Environmental Laws, or (d) conduct any activity at any Real Estate or use any
Real Estate in any manner so as to cause a Release causing a violation of
Environmental Laws or a Material Adverse Effect or a violation of any
Environmental Law; provided that a breach of this covenant shall result in the
affected Real Estate no longer being an Unencumbered Property, but shall only
constitute an Event of Default under ss.12.1(d) if such breach is not a
Non-Material Breach.
ss.8.7. Distributions. (a) The Borrowers (i) will not in any period of
four (4) consecutive completed fiscal quarters make Distributions (other than
pursuant to clause (iii) in the definition of Distribution) in such period in
excess of 90% of Funds From Operations for such period or (ii) will not make any
Distributions (other than pursuant to clause (iii) in the definition of
Distribution) during any period when any Event of Default under ss.12.1(a)
(including, without limitation, any failure to pay resulting from acceleration
of the Loans) ss.12.1(b), ss.12.1(c) resulting from a failure to comply with
ss.7.7 (as to the legal existence and REIT status of CRC), ss.9, ss.12(g),
ss.12.1(h), or ss.12.1(j) has occurred and is continuing or (iii) will not make
any Distributions to any Borrower, Guarantor, or their respective Subsidiaries
when such Person is the subject of a Permitted Event except as required by order
of the tribunal in which such Permitted Event is occurring; and except that such
Person may make Distributions to another Borrower, Guarantor or Subsidiary while
such distributing Person is the subject of a Permitted Event; provided, however,
that the Borrowers may at all times make Distributions to the extent (after
taking into account all available funds of CRC from all other sources) required
in order to enable CRC to continue to qualify as a REIT. In the event that CRC
or CRLP raises equity during the term of this Agreement, the permitted
percentage of Distributions will be adjusted based on the total declared
distribution per share and partnership units over the most recent four (4)
quarters to Funds From Operations per weighted average share and partnership
unit based on the most recent four (4) quarters.
(b) CRC will not, during any period when any Event of Default has
occurred and is continuing, make any Distributions in excess of the
Distributions required to be made by CRC in order to maintain its status as a
REIT.
- 78 -
<PAGE>
ss.8.8. Employee Benefit Plans. None of any Borrower, any Guarantor or
any ERISA Affiliate will
(a) engage in any "prohibited transaction" within the meaning of ss.406
of ERISA or ss.4975 of the Code which could result in a material liability for
any Borrower, any Guarantor or any of their respective Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated funding
deficiency", as such term is defined in ss.302 of ERISA, whether or not such
deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could result
in the imposition of a lien or encumbrance on the assets of any Borrower, any
Guarantor or any of their respective Subsidiaries pursuant to ss.302(f) or
ss.4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the
posting of security pursuant to ss.307 of ERISA or ss.401(a)(29) of the Code; or
(e) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of ss.4001 of ERISA) of all Guaranteed
Pension Plans exceeding the value of the aggregate assets of such Plans,
disregarding for this purpose the benefit liabilities and assets of any such
Plan with assets in excess of benefit liabilities; provided that none of (a) -
(e) shall be an Event of Default under ss.12.1(c) if the prohibited matters
occurring are in the aggregate within the Dollar limits permitted within
ss.12.1(l) and are otherwise the subject of the matters that are covered by the
Events of Default in ss.12.1(l)
ss.8.9. Fiscal Year. The Borrowers will not, and will not permit the
Guarantors or any of their respective Subsidiaries to, change the date of the
end of its fiscal year from that set forth in ss.6.5; provided that such persons
may change their respective fiscal years if they give the Agent thirty (30) days
prior written notice of such change and the parties make appropriate adjustments
satisfactory to the Borrowers and the Lenders to the provisions of this
Agreement (including without limitation those set forth in ss.9) to reflect such
change in fiscal year.
ss.9. FINANCIAL COVENANTS OF THE BORROWERS. Each of the Borrowers
covenants and agrees that, so long as any Loan, Letter of Credit or Note is
outstanding or any Lender has any obligation to make any Loan or any
Lender has any obligation to issue, extend or renew any Letters of Credit:
ss.9.1. Leverage Ratio. As at the end of any fiscal quarter or other
date of measurement, the Borrower shall not permit Consolidated Total
Liabilities to exceed 55% of the sum of (a) Consolidated Capitalized NOI plus
(b) the value of Unrestricted Cash and Cash Equivalents (excluding until
forfeited or otherwise entitled to be retained by the
- 79 -
<PAGE>
Borrowers, and their Subsidiaries, tenant security and other restricted
deposits), plus (c) the aggregate costs incurred and paid to date by the
Borrowers with respect to Construction-In-Process plus (d) the value of
Indebtedness of third parties to the Borrowers for borrowed money which is
secured by mortgage liens in real estate (valued at the book value of such
Indebtedness).
ss.9.2. Secured Indebtedness. As at the end of any fiscal quarter or
other date of measurement, the Borrowers shall not permit Consolidated Secured
Indebtedness to exceed 40% of Consolidated Capitalized NOI.
ss.9.3. Tangible Net Worth. As at the end of any fiscal quarter or any
other date of measurement, the Borrowers shall not permit Consolidated Tangible
Net Worth to be less than the sum of (a) $650,000,000 plus (b) 75% of the sum of
(i) the aggregate proceeds received by CRC (net of fees and expenses customarily
incurred in transactions of such type) in connection with any offering of stock
in CRC and (ii) the aggregate value of operating units issued by CRLP in
connection with asset or stock acquisitions (valued at the time of issuance by
reference to the terms of the agreement pursuant to which such units are
issued), in each case after the Closing Date and on or prior to the date such
determination of Consolidated Tangible Net Worth is made.
ss.9.4. Debt Service Coverage. As at the end of any fiscal quarter or
other date of measurement, the Borrowers shall not permit Consolidated Adjusted
Net Income to be less than two (2) times Consolidated Total Debt Service, based
on the results of the most recent two (2) complete fiscal quarters. For purposes
of this ss.9.4, the Consolidated Total Debt Service of the Borrowers shall
include, on a net basis, positive amortization and negative amortization of each
of the Harborside Assumed Debt.
ss.9.5. Non-Income Producing Land. As at the end of any fiscal quarter
or other date of measurement, the Borrowers shall not permit the book value of
Unimproved Non-Income Producing Land to exceed 10% of Consolidated Capitalized
NOI.
ss.9.6. Construction-in-Process. As at the end of any fiscal quarter or
other date of measurement, the Borrowers shall not permit the aggregate Budgeted
Project Costs of all Construction-in-Process to exceed 15% of Consolidated
Capitalized NOI. For purposes of this ss.9.6, Construction-in-Process shall not
include so-called "build to suit" properties which are (i) 75% pre-leased (by
rentable square foot) to tenants which have a minimum credit rating of BBB- from
S&P or Baa3 from Moody's, as the case may be, or which have a financial
condition reasonably acceptable to the Majority Lenders (provided that the
Borrowers shall submit any such request for the Lender's acceptance of a
tenant's financial condition to the Agent in writing, and the Agent shall, in
turn, promptly forward such request to each Lender; each Lender shall then have
five (5) Business Days from its deemed receipt of such request to approve or
disapprove of such tenant's financial condition, with any Lender's failure to
send notice of disapproval to the Agent within five (5) Business Days being
deemed to be its approval) and (ii) in substantial compliance, with respect to
both time
- 80 -
<PAGE>
and cost, with the original construction budget and construction schedule, as
amended by change orders or otherwise updated.
ss.9.7. Notes. As at the end of any fiscal quarter or other date of
measurement, the Borrowers shall not permit the value of Indebtedness of third
parties to the Borrowers or their Subsidiaries for borrowed money which is
unsecured or is secured by mortgage liens (valued at the book value of such
Indebtedness) to exceed 15% of Consolidated Capitalized NOI.
ss.9.8. Unhedged Variable Rate Debt. As at the end of any two (2)
consecutive fiscal quarters, the Borrowers shall not permit the value of
Unhedged Variable Rate Indebtedness to exceed 20% of Consolidated Capitalized
NOI.
ss.9.9. Unsecured Indebtedness. As at the end of any fiscal quarter or
other date of measurement, the Borrowers shall not permit Consolidated Unsecured
Indebtedness to exceed 60% of aggregate Capitalized Unencumbered Property NOI
for all Unencumbered Properties .
ss.9.10. Unencumbered Property Debt Service Coverage. As at the end of
any fiscal quarter or other date of measurement, the Borrowers shall not permit
the aggregate Adjusted Unencumbered Property NOI for all Unencumbered Properties
to be less than two (2) times Consolidated Total Unsecured Debt Service, based
on the results of the most recent two (2) complete fiscal quarters.
ss.9.11. Covenant Calculations.
(a) For purposes of the calculations to be made pursuant to
ss.ss.9.1-9.10 (and the defined terms relevant thereto, including, without
limitation, those relating to "debt service"), references to Indebtedness or
liabilities of the Borrower shall mean Indebtedness or liabilities (including,
without limitation, Consolidated Total Liabilities) of the Borrowers, plus (but
without double-counting):
(i) all Indebtedness or liabilities of the Operating
Subsidiaries, the Guarantors and any other wholly-owned Subsidiary
(excluding any such Indebtedness or liabilities owed to the Borrower or
any Guarantor; provided that, as to CRC, CRC has a corresponding
Indebtedness or liability to such Borrower),
(ii) all Indebtedness or liabilities of each
Partially-Owned Entity (including for Capitalized Leases), but only to
the extent, if any, that said Indebtedness or liability is Recourse to
any of the Borrowers, the Guarantors or their respective Subsidiaries
or any of their respective assets (other than their respective
interests in such Partially-Owned Entity); provided that Recourse
Indebtedness arising from such Person's acting as general partner or
guarantor of collection only (and not of payment or performance) of a
Partially-Owned Entity shall be limited to
- 81 -
<PAGE>
the amount by which the Indebtedness exceeds the liquidation value of
the Real Estate and other assets owned by such Partially-Owned Entity
if the creditor owed such Indebtedness is required by law or by
contract to seek repayment of such Indebtedness from such Real Estate
and other assets before seeking repayment from such Person, and
(iii) Indebtedness or liabilities of each
Partially-Owned Entity to the extent of the pro-rata share of such
Indebtedness or liability allocable to any of the Borrowers, the
Guarantors or their respective Subsidiaries without double counting.
(b) For purposes of ss.ss.9.1-9.10 hereof, Consolidated
Adjusted Net Income, Revised Consolidated Adjusted Net Income, Adjusted
Unencumbered Property NOI and Revised Adjusted Unencumbered Property NOI (and
all defined terms and calculations using such terms) shall be adjusted (i) to
deduct the actual results of any Real Estate disposed of by a Borrower, a
Guarantor or any of their respective Subsidiaries during the relevant fiscal
period (for Revised Consolidated Adjusted Net Income and Revised Adjusted
Unencumbered Property NOI only), (ii) to include the pro forma results of any
Real Estate acquired by a Borrower, a Guarantor or any of their respective
Subsidiaries during the relevant fiscal period, with such pro forma results
being calculated by (x) using the Borrowers' pro forma projections for such
acquired property, subject to the Agent's reasonable approval, if such property
has been owned by a Borrower, a Guarantor or any of their respective
Subsidiaries for less than one complete fiscal quarter or (y) using the actual
results for such acquired property and adjusting such results for the
appropriate period of time required by the applicable financial covenant, if
such property has been owned by a Borrower, a Guarantor or any of their
respective Subsidiaries for at least one complete fiscal quarter (for Revised
Consolidated Adjusted Net Income and Revised Adjusted Unencumbered Property NOI
only) and (iii) to the extent applicable, to include the pro rata share of
results attributable to the Borrowers from unconsolidated Subsidiaries of CRC,
the Borrowers and their respective Subsidiaries and from unconsolidated
Partially-Owned Entities; provided that income shall not be included until
received without restriction in cash by the Borrowers.
(c) For purposes of ss.ss.9.1 - 9.10 hereof, if any change in
GAAP after the Financial Statement Date results in a material change in the
calculation to be performed in any such section, solely as a result of such
change in GAAP, the Lenders and the Borrower Representative shall negotiate in
good faith a modification of any such covenant(s) so that the economic effect of
the calculation of such covenant(s) using GAAP as so changed is as close as
feasible to what the economic effect of the calculation of such covenant(s)
would have been using GAAP in effect as of the Financial Statement Date.
ss.10. CONDITIONS TO THE CLOSING DATE. The obligations of the Lenders
to make the initial Revolving Credit Loans and of the Fronting Bank to issue any
initial Letters of Credit shall be subject to the satisfaction of the following
conditions precedent on or prior to August 4, 1997:
- 82 -
<PAGE>
ss.10.1. Loan Documents. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto and shall be in
full force and effect.
ss.10.2. Certified Copies of Organization Documents. The Agent shall
have received (i) from each Borrower a copy, certified as of the Closing Date by
a duly authorized officer of such Person (or its general partner, if such Person
is a partnership, or its managing member, if such Person is a limited liability
company), to be true and complete, of each of its certificate of limited
partnership, agreement of limited partnership, incorporation documents, by-laws,
and/or other organizational documents as in effect on the Closing Date, and (ii)
from CRC a copy, certified as of a date within thirty (30) days prior to the
Closing Date by the appropriate officer of the State of Maryland to be true and
correct, of the corporate charter of CRC, in each case along with any other
organization documents of any Borrower (and its general partner, if such
Borrower is a partnership, or its managing member, if such person is a limited
liability company) or CRC, as the case may be, and each as in effect on the date
of such certification.
ss.10.3. By-laws; Resolutions. All action on the part of the Borrowers
and CRC necessary for the valid execution, delivery and performance by the
Borrowers and CRC of this Agreement and the other Loan Documents to which any of
them is or is to become a party as of the Closing Date shall have been duly and
effectively taken, and evidence thereof satisfactory to the Lenders shall have
been provided to the Agent. Without limiting the foregoing, the Agent shall have
received from CRC true copies of its by-laws and the resolutions adopted by its
board of directors authorizing the transactions described herein and evidencing
the due authorization, execution and delivery of the Loan Documents to which CRC
and the Borrowers of which CRC is a controlling Person are a party, each
certified by the secretary as of a recent date to be true and complete.
ss.10.4. Incumbency Certificate; Authorized Signers. The Agent shall
have received from each of the Borrowers and CRC an incumbency certificate,
dated as of the Closing Date, signed by a duly authorized officer such Person
and giving the name of each individual who shall be authorized: (a) to sign, in
the name and on behalf of such Person, each of the Loan Documents to which such
Person is or is to become a party as of the Closing Date; (b) in the case of the
Borrower Representative, to make Loan Requests, Conversion Requests and
Competitive Bid Requests and to apply for Letters of Credit on behalf of the
Borrowers; and (c) in the case of the Borrower Representative, to give notices
and to take other action on behalf of the Borrowers and the Guarantors under the
Loan Documents.
ss.10.5. Title Policies. The Agent (on behalf of the Lenders) shall
have received copies of the Title Policies for all Real Estate which are
Unencumbered Properties as of the Closing Date.
- 83 -
<PAGE>
ss.10.6. Certificates of Insurance. The Agent shall have received (a)
current certificates of insurance as to all of the insurance maintained by each
Borrower and their respective Subsidiaries on the Real Estate (including flood
insurance if necessary) from the insurer or an independent insurance broker,
identifying insurers, types of insurance, insurance limits, and policy terms;
and (b) such further information and certificates from the Borrowers, their
insurers and insurance brokers as the Agent may reasonably request.
ss.10.7. Environmental Site Assessments. The Agent shall have received
environmental site assessments from a hydrogeologist, environmental engineer,
qualified consultant or other expert and in form and substance reasonably
satisfactory to the Agent, covering all Real Estate and all other real property
in respect of which any Borrower or any of its Subsidiaries may have material
liability, whether contingent or otherwise, for dumping or disposal of Hazardous
Substances and which are in the possession of the Borrowers.
ss.10.8. Opinion of Counsel Concerning Organization and Loan Documents.
Each of the Lenders and the Agent shall have received favorable opinions
addressed to the Lenders and the Agent in form and substance satisfactory to the
Lenders and the Agent from (a) Pryor, Cashman, Sherman & Flynn, as counsel to
the Borrowers, CRC and their respective Subsidiaries with respect to New York
and New Jersey law and certain matters of Delaware law, (b) Ballard, Spahr,
Andrews and Ingersoll, as counsel to CRC, with respect to Maryland law, (c) Cohn
& Birnbaum, as counsel to the Borrowers with respect to Connecticut law, and (d)
Eckell Sparks Levy Auerbach Monte & Emper, as counsel to the Borrower with
respect to Pennsylvania law.
ss.10.9. Tax and Securities Law Compliance. Each of the Lenders and the
Agent shall also have received from Pryor, Cashman, Sherman & Flynn, as counsel
to the Borrowers and CRC, a favorable opinion addressed to the Lenders and the
Agent, in form and substance satisfactory to each of the Lenders and the Agent,
with respect to the qualification of CRC as a REIT and certain other tax and
securities laws matters.
ss.10.10. Guaranties. Each of the Guaranties to be executed and
delivered on the Closing Date shall have been duly executed and delivered by the
Guarantor thereunder.
ss.10.11. Certifications from Government Officials; UCC-11 Reports. The
Agent shall have received (i) long-form certifications from government officials
evidencing the legal existence, good standing and foreign qualification of each
Borrower and each Guarantor, along with a certified copy of the certificate of
limited partnership or certificate of incorporation of each Borrower and each
Guarantor, all as of the most recent practicable date; and (ii) UCC-11 search
results from the appropriate jurisdictions for each Borrower and each Guarantor
with respect to the Unencumbered Properties.
ss.10.12. Proceedings and Documents. All proceedings in connection with
the transactions contemplated by this Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in form and substance
to each of the
- 84 -
<PAGE>
Lenders', the Borrowers', the Guarantors' and the Agent's counsel, and the
Agent, each of the Lenders and such counsel shall have received all information
and such counterpart originals or certified or other copies of such documents as
the Agent may reasonably request.
ss.10.13. Fees. The Borrowers shall have paid to the Agent, for the
accounts of the Lenders or for its own account, as applicable, all of the fees
and expenses that are due and payable as of the Closing Date in accordance with
this Agreement and that certain letter agreement of even date herewith between
the Borrower Representative and the Agent.
ss.10.14. Closing Certificate; Compliance Certificate. The Borrowers
shall have delivered a Closing Certificate to the Agent, the form of which is
attached hereto as Exhibit E. The Borrowers shall have delivered a compliance
certificate in the form of Exhibit D hereto evidencing compliance with the
covenants set forth in ss.9 hereof on a pro forma basis.
ss.10.15. Existing Indebtedness. The existing indebtedness of the
Borrowers to (a) the lenders party to the $75,000,000 Credit Agreement dated as
of February 1, 1996, as amended, among CRLP, National Westminster Bank Plc, New
York Branch, as Agent, Natwest Bank, N.A., and certain other parties, and (b) to
PSC under the $70,000,000 Revolving Credit Agreement dated as of August 31, 1994
among CRC, CRLP and PSC, shall have been satisfied in full or will be satisfied
in full with the proceeds of the initial Revolving Credit Loan, and satisfactory
evidence thereof shall have been provided to the Agent.
ss.10.16. Subsequent Guarantors. As a condition to the effectiveness of
any subsequent Guaranty, each subsequent Guarantor shall deliver such documents,
agreements, instruments and opinions as the Agent shall reasonably require as to
such Guarantor and the Unencumbered Property owned or ground-leased by such
Guarantor that are analogous to the deliveries made by the Guarantors as of the
Closing Date pursuant to ss.10.2 through ss.10.8, ss.10.10 and ss.10.11.
ss.11. CONDITIONS TO ALL BORROWINGS. The obligations of the Lenders to
make any Loan and of any Lender to issue, extend or renew any Letter of Credit,
in each case, whether on or after the Closing Date, shall also be subject to the
satisfaction of the following conditions precedent:
ss.11.1. Representations True; No Event of Default; Compliance
Certificate. Each of the representations and warranties of the Borrowers and the
Guarantors contained in this Agreement, the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with this
Agreement shall be true as of the date as of which they were made and shall also
be true at and as of the time of the making of each Loan or the issuance,
extension or renewal of each Letter of Credit, with the same effect as if made
at and as of that time (except to the extent (i) of changes resulting from
transactions contemplated or not prohibited by this Agreement or the other Loan
Documents (ii) of changes occurring in the ordinary course of business, (iii)
that such representations and warranties relate expressly to
- 85 -
<PAGE>
an earlier date and (iv) that such untruth is disclosed when first known to a
Borrower or a Guarantor in the next delivered compliance certificate, and is a
Non-Material Breach); and no Default or Event of Default under this Agreement
shall have occurred and be continuing on the date of any Loan Request or
Competitive Bid Request or on the Drawdown Date of any Loan (other than a
Default or Event of Default arising solely from the Borrower's failure to comply
with the provision of ss. 7.22 and such borrowing is to cure, and will cure,
such Default or Event of Default without causing any other Default or Event of
Default). Each of the Lenders shall have received a certificate of the Borrowers
signed by an authorized officer of the Borrower Representative as provided in
ss.2.5(iv)(c) or ss.2A.9.
ss.11.2. No Legal Impediment. No change shall have occurred in any law
or regulations thereunder or interpretations thereof that in the reasonable
opinion of the Agent or any Lender would make it illegal for any Lender to make
such Loan or to participate in the issuance, extension or renewal of such Letter
of Credit or, in the reasonable opinion of the Agent, would make it illegal to
issue, extend or renew such Letter of Credit.
ss.11.3. Governmental Regulation. Each Lender shall have received such
statements in substance and form reasonably satisfactory to such Lender as such
Lender shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
ss.12. EVENTS OF DEFAULT; ACCELERATION; ETC.
ss.12.1. Events of Default and Acceleration. If any of the following
events ("Events of Default") shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans
when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment; none of the foregoing is a Non-Material Breach.
(b) the Borrowers shall fail to pay any interest on the Loans,
the Commitment Fee, the Facility Fee, any Letter of Credit Fee or any other sums
due hereunder or under any of the other Loan Documents (including, without
limitation, amounts due under ss.7.17) when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment, and such failure continues for
five (5) days; none of the foregoing is a Non-Material Breach.
(c) any Borrower or any Guarantor or any of their respective
Subsidiaries shall fail to comply with any of their respective covenants
contained in: ss.7.1 within ten (10) days of any such amount being due (except
with respect to interest, fees and other sums covered by clause (b) above or
principal covered by clause (a) above); ss.7.6 (as to the legal existence of
CRLP for which no period to cure is granted); ss.7.7 (as to the legal existence
and REIT status of CRC for which no period to cure is granted); ss.7.12; ss.7.21
within ten (10)
- 86 -
<PAGE>
days of the occurrence of same; ss.7.22 within thirty (30) days of any
non-compliance; ss.8 (except with respect to ss.8.1(b), ss.8.5 for Non-Material
Breaches only, or ss.8.6); or ss.9; none of the foregoing is a Non-Material
Breach.
(d) any Borrower or any Guarantor or any of their respective
Subsidiaries shall fail to perform any other term, covenant or agreement
contained herein or in any other Loan Document (other than those specified
elsewhere in this ss.12) and such failure continues for thirty (30) days (other
than a Non-Material Breach (excluding ss.8.5 for which the Non-Material Breach
must be cured within the thirty or ten days, as applicable, provided therein)
and such cure period shall not extend any specific cure period set forth in any
term, covenant or agreement covered by this ss.12.1(d)).
(e) any representation or warranty of any Borrower or any
Guarantor or any of their respective Subsidiaries in this Agreement or any of
the other Loan Documents or in any other document or instrument delivered
pursuant to or in connection with this Agreement shall prove to have been false
in any material respect upon the date when made or deemed to have been made or
repeated (other than a Non-Material Breach).
(f) any Borrower or any Guarantor or any of their respective
Subsidiaries shall (i) fail to pay at maturity, or within any applicable period
of grace or cure, any obligation for borrowed money or credit received (other
than current obligations in the ordinary course of business) or in respect of
any Capitalized Leases (x) in respect of any Recourse obligations or credit in
an aggregate amount in excess of $1,000,000 (determined in accordance with ss.
9.11 hereof) or (y) in respect of any Without Recourse obligations or credit in
an aggregate amount in excess of $25,000,000 (determined in accordance with ss.
9.11 hereof), or (ii) fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing borrowed money or credit received (other than current obligations in
the ordinary course of business) or in respect of any Capitalized Leases (x) in
respect of any Recourse obligations or credit in an aggregate amount in excess
of $1,000,000 (determined in accordance with ss. 9.11 hereof) for such period of
time (after the giving of appropriate notice if required) as would permit the
holder or holders thereof or of any obligations issued thereunder to accelerate
the maturity thereof or (y) in respect of any Without Recourse obligations or
credit in an aggregate amount in excess of $25,000,000 (determined in accordance
with ss. 9.11 hereof), and the holder or holders thereof shall have accelerated
the maturity thereof; none of the foregoing is a Non-Material Breach.
(g) any Credit Party (other than for a Permitted Event) shall
make an assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or become
due, or shall petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of any Credit Party or of any substantial part
of the properties or assets of any Credit Party (other than for a Permitted
Event) or shall commence any case or other proceeding relating to any Credit
Party (other than for a Permitted Event) under any bankruptcy, reorganization,
arrangement, insolvency,
- 87 -
<PAGE>
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or shall take any action to authorize
or in furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against any Credit Party (other than for a Permitted Event) and (i)
any Credit Party (other than for a Permitted Event) shall indicate its approval
thereof, consent thereto or acquiescence therein or (ii) any such petition,
application, case or other proceeding shall continue undismissed, or unstayed
and in effect, for a period of seventy-five (75) days.
(h) a decree or order is entered appointing any trustee,
custodian, liquidator or receiver or adjudicating any Credit Party (other than
for a Permitted Event) bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for relief is entered in
respect of any Credit Party (other than for a Permitted Event) in an involuntary
case under federal bankruptcy laws as now or hereafter constituted, and such
proceeding, decree or order shall continue undismissed, or unstayed and in
effect, for a period of seventy-five (75) days.
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for a period of more than thirty (30) days, any uninsured final
judgment against any Borrower, any Guarantor or any of their respective
Subsidiaries that, with other outstanding uninsured final judgments,
undischarged, unsatisfied and unstayed, against any Borrower, any Guarantor or
any of their respective Subsidiaries exceeds in the aggregate $5,000,000 (other
than for a Permitted Event).
(j) any of the Loan Documents or any material provision of any
Loan Documents shall be cancelled, terminated, revoked or rescinded otherwise
than in accordance with the terms thereof or with the express prior written
agreement, consent or approval of the Agent, or any Guaranty shall be cancelled,
terminated, revoked or rescinded at any time or for any reason whatsoever, or
any action at law, suit or in equity or other legal proceeding to make
unenforceable, cancel, revoke or rescind any of the Loan Documents shall be
commenced by or on behalf of any Borrower or any of its Subsidiaries or any
Guarantor or any of its Subsidiaries, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable
as to any material terms thereof, other than as any of the same may occur from a
Permitted Event permitted by this Agreement.
(k) any "Event of Default" or default (after notice and
expiration of any period of grace, to the extent provided, and if none is
specifically provided or denied, then for a period of thirty (30) days after
notice), as defined or provided in any of the other Loan Documents, shall occur
and be continuing.
(l) any Borrower or any ERISA Affiliate incurs any liability
to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount
- 88 -
<PAGE>
exceeding $1,000,000, or any Borrower or any ERISA Affiliate is assessed
withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan
requiring aggregate annual payments exceeding $1,000,000, or any of the
following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA
Reportable Event, or a failure to make a required installment or other payment
(within the meaning of ss.302(f)(1) of ERISA), provided that the Agent
determines in its reasonable discretion that such event (A) could be expected to
result in liability of any Borrower or any of their respective Subsidiaries to
the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding
$1,000,000 and (B) could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed Pension
Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan;
or (ii) the appointment by a United States District Court of a trustee to
administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of
proceedings to terminate such Guaranteed Pension Plan; to the extent that any
breach of ss.6.16 or ss.7.20 is a matter that constitutes a specific breach of a
provision of this ss.12.1(l), the breach of ss.6.16 or ss.7.20 shall not be a
Non-Material Breach.
(m) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by
the Securities and Exchange Commission under said Act) of 40% or more of the
outstanding shares of common stock of CRC.
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Required Lenders shall, by notice in writing to
the Borrowers, declare all amounts owing with respect to this Agreement, the
Notes and the other Loan Documents and all Reimbursement Obligations to be, and
they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by each Borrower and each Guarantor; provided that in
the event of any Event of Default specified in ss.12.1(g) or ss.12.1(h), all
such amounts shall become immediately due and payable automatically and without
any requirement of notice from any of the Lenders or the any of Agent or action
by the Lenders or the Agent.
A Non-Material Breach shall require that the Borrowers commence and
continue to exercise reasonable diligent efforts to cure such breach (which
shall occur within any specific time period for curing a Non-Material Breach
elsewhere set forth in this Agreement if any). Such efforts may include (and for
a Permitted Event shall include) the release of the affected Person(s) (other
than CRLP or CRC) as a Borrower or Guarantor pursuant to ss.4.10(g) or ss.5 so
long as such release (i) cures such Non-Material Breach (ii) does not otherwise
cause a Default or Event of Default, and (iii) does not have a Material Adverse
Effect on the remaining Borrowers, Guarantors, and their respective
Subsidiaries, taken as a whole. Continuing failure of the Borrowers to comply
with the requirements to commence
- 89 -
<PAGE>
and continue to exercise reasonable diligent efforts to cure such Non-Material
Breach shall constitute a material breach after notice from the Agent.
ss.12.2. Termination of Commitments. If any one or more Events of
Default specified in ss.12.1(g) or ss.12.1(h) shall occur, any unused portion of
the Commitments hereunder shall forthwith terminate and the Lenders shall be
relieved of all obligations to make Loans to the Borrowers and the Agent and any
Fronting Bank shall be relieved of all further obligations to issue, extend or
renew Letters of Credit. If any other Event of Default shall have occurred and
be continuing, whether or not the Lenders shall have accelerated the maturity of
the Loans pursuant to ss.12.1, the Agent may, and upon the request of the
Required Lenders shall, by notice to the Borrowers, terminate the unused portion
of the credit hereunder, and upon such notice being given such unused portion of
the credit hereunder shall terminate immediately and each of the Lenders shall
be relieved of all further obligations to make Loans, the Agent and any Fronting
Bank shall be relieved of all further obligations to issue, extend or renew
Letters of Credit. No such termination of the credit hereunder shall relieve any
Borrower or any Guarantor of any of the Obligations or any of its existing
obligations to the Lenders arising under other agreements or instruments.
ss.12.3. Remedies. In the event that one or more Events of Default
shall have occurred and be continuing, whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to ss.12.1, the Required Lenders
may direct the Agent to proceed to protect and enforce the rights and remedies
of the Agent and the Lenders under this Agreement, the Notes, any or all of the
other Loan Documents or under applicable law by suit in equity, action at law or
other appropriate proceeding (including for the specific performance of any
covenant or agreement contained in this Agreement or the other Loan Documents or
any instrument pursuant to which the Obligations are evidenced and, to the full
extent permitted by applicable law, the obtaining of the ex parte appointment of
a receiver), and, if any amount shall have become due, by declaration or
otherwise, proceed to enforce the payment thereof or any other legal or
equitable right or remedy of the Agent and the Lenders under the Loan Documents
or applicable law. No remedy herein conferred upon the Lenders or the Agent or
the holder of any Note or purchaser of any Letter of Credit Participation is
intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or
under any of the other Loan Documents or now or hereafter existing at law or in
equity or by statute or any other provision of law.
ss.13. SETOFF. Without demand or notice, during the continuance of any
Event of Default, any deposits (general or specific, time or demand, provisional
or final, regardless of currency, maturity, or the branch at which such deposits
are held, but specifically excluding tenant security deposits, other fiduciary
accounts and other segregated escrow accounts required to be maintained by any
of the Borrowers for the benefit of any third party) or other sums credited by
or due from any of the Lenders to any of the Borrowers or any other property of
any of the Borrowers in the possession of the Agent or a Lender may be applied
to or set off against the payment of the Obligations. Each of the Lenders agrees
with each
- 90 -
<PAGE>
other Lender that (a) if pursuant to any agreement between such Lender and any
Borrower (other than this Agreement or any other Loan Document), an amount to be
set off is to be applied to Indebtedness of any Borrower to such Lender, other
than with respect to the Obligations, such amount shall be applied ratably to
such other Indebtedness and to the Obligations, and (b) if such Lender shall
receive from any Borrower, whether by voluntary payment, exercise of the right
of setoff, counterclaim, cross action, enforcement of the Obligations by
proceedings against such Borrower at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar proceedings, or
otherwise, and shall retain and apply to the payment of the Note or Notes held
by, or Reimbursement Obligations owed to, such Lender any amount in excess of
its ratable portion of the payments received by all of the Lenders with respect
to the Notes held by, and Reimbursement Obligations owed to, all of the Lenders,
such Lender will make such disposition and arrangements with the other Lenders
with respect to such excess, either by way of distribution, pro tanto assignment
of claims, subrogation or otherwise, as shall result in each Lender receiving in
respect of the Notes held by it or Reimbursement Obligations owed it, its
proportionate payment as contemplated by this Agreement; provided that if all or
any part of such excess payment is thereafter recovered from such Lender, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest. Notwithstanding the foregoing, no
Lender shall exercise a right of setoff if such exercise would limit or prevent
the exercise of any other remedy or other recourse against any Borrower.
ss.14. THE AGENT.
ss.14.1. Authorization. (a) The Agent is authorized to take such action
on behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related documents
delegated to the Agent, together with such powers as are reasonably incident
thereto, provided that no duties or responsibilities not expressly assumed
herein or therein shall be implied to have been assumed by the Agent. The
relationship between the Agent and the Lenders is and shall be that of agent and
principal only, and nothing contained in this Agreement or any of the other Loan
Documents shall be construed to constitute the Agent as a trustee or fiduciary
for any Lender. Subject to the terms and conditions hereof, the Agent shall
discharge its functions as "Agent" with the same degree of care as it performs
administrative services for loans in which it is the sole lender.
The Agent and the Fronting Bank shall be fully justified in failing or refusing
to take any action under ss.3 hereof unless it shall first have received such
advice or concurrence of the Majority Lenders as it reasonably deems appropriate
or it shall first be indemnified to its reasonable satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
(b) Each Borrower, without further inquiry or investigation,
shall, and is hereby authorized by the Lenders to, assume that all actions taken
by the Agent hereunder
- 91 -
<PAGE>
and in connection with or under the Loan Documents are duly authorized by the
Lenders. The Lenders shall notify the Borrowers of any successor to Agent by a
writing signed by Required Lenders, which successor shall be reasonably
acceptable to the Borrowers so long as no Default or Event of Default has
occurred and is continuing.
ss.14.2. Employees and Agents. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrowers.
ss.14.3. No Liability. Neither the Agent, nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent may be liable
for losses due to its willful misconduct or gross negligence.
ss.14.4. No Representations. The Agent shall not be responsible for the
execution or validity or enforceability of this Agreement, the Notes, the
Letters of Credit, or any of the other Loan Documents or for the validity,
enforceability or collectibility of any such amounts owing with respect to the
Notes, or for any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or instrument
hereafter furnished to it by or on behalf of any Guarantor or any Borrower or
any of their respective Subsidiaries, or be bound to ascertain or inquire as to
the performance or observance of any of the terms, conditions, covenants or
agreements in this Agreement or the other Loan Documents. The Agent shall not be
bound to ascertain whether any notice, consent, waiver or request delivered to
it by any Borrower or any Guarantor or any holder of any of the Notes shall have
been duly authorized or is true, accurate and complete. The Agent has not made
nor does it now make any representations or warranties, express or implied, nor
does it assume any liability to the Lenders, with respect to the credit
worthiness or financial condition of any Borrower or any of its Subsidiaries or
any Guarantor or any of the Subsidiaries or any tenant under a Lease or any
other entity. Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender, and based upon such information and
documents as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement.
ss.14.5. Payments.
(a) A payment by the Borrowers to the Agent hereunder or any
of the other Loan Documents for the account of any Lender shall constitute a
payment to such Lender. The Agent agrees to distribute to each Lender such
Lender's pro rata share of
- 92 -
<PAGE>
payments received by the Agent for the account of the Lenders, as provided
herein or in any of the other Loan Documents. All such payments shall be made on
the date received, if before 1:00 p.m., and if after 1:00 p.m., on the next
Business Day. If payment is not made on the day received, interest thereon at
the overnight federal funds effective rate shall be paid pro rata to the
Lenders.
(b) If in the reasonable opinion of the Agent the distribution
of any amount received by it in such capacity hereunder, under the Notes or
under any of the other Loan Documents might involve it in material liability, it
may refrain from making distribution until its right to make distribution shall
have been adjudicated by a court of competent jurisdiction, provided that
interest thereon at the overnight federal funds effective rate shall be paid pro
rata to the Lenders. If a court of competent jurisdiction shall adjudge that any
amount received and distributed by the Agent is to be repaid, each Person to
whom any such distribution shall have been made shall either repay to the Agent
its proportionate share of the amount so adjudged to be repaid or shall pay over
the same in such manner and to such Persons as shall be determined by such
court.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Lender that fails (i) to make
available to the Agent its pro rata share of any Loan or to purchase any Letter
of Credit Participation or (ii) to comply with the provisions of ss.13 with
respect to making dispositions and arrangements with the other Lenders, where
such Lender's share of any payment received, whether by setoff or otherwise, is
in excess of its pro rata share of such payments due and payable to all of the
Lenders, in each case as, when and to the full extent required by the provisions
of this Agreement, or to adjust promptly such Lender's outstanding principal and
its pro rata Commitment Percentage as provided in ss.2.1, shall be deemed
delinquent (a "Delinquent Lender") and shall be deemed a Delinquent Lender until
such time as such delinquency is satisfied. A Delinquent Lender shall be deemed
to have assigned any and all payments due to it from the Borrowers, whether on
account of outstanding Loans, interest, fees or otherwise, to the remaining
nondelinquent Lenders for application to, and reduction of, their respective pro
rata shares of all outstanding Loans. The Delinquent Lender hereby authorizes
the Agent to distribute such payments to the nondelinquent Lenders in proportion
to their respective pro rata shares of all outstanding Loans. If not previously
satisfied directly by the Delinquent Lender, a Delinquent Lender shall be deemed
to have satisfied in full a delinquency when and if, as a result of application
of the assigned payments to all outstanding Loans of the nondelinquent Lenders,
the Lenders' respective pro rata shares of all outstanding Loans have returned
to those in effect immediately prior to such delinquency and without giving
effect to the nonpayment causing such delinquency.
ss.14.6. Holders of Notes. The Agent may deem and treat the payee of
any Notes or the purchaser of any Letter of Credit Participation as the absolute
owner or purchaser thereof for all purposes hereof until it shall have been
furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
- 93 -
<PAGE>
ss.14.7. Indemnity. The Lenders ratably and severally agree hereby to
indemnify and hold harmless the Agent (in its capacity as such and not in its
capacity as a Lender) and its Affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent has not been reimbursed by
the Borrowers as required by ss.15), and liabilities of every nature and
character arising out of or related to this Agreement, the Notes, or any of the
other Loan Documents or the transactions contemplated or evidenced hereby or
thereby, or the Agent's actions taken hereunder or thereunder, except to the
extent that any of the same shall be directly caused by the Agent's willful
misconduct or gross negligence.
ss.14.8. Agent as Lender. In its individual capacity as a Lender, Fleet
shall have the same obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as the holder of any of
the Notes and as the purchaser of any Letter of Credit Participations, as it
would have were it not also the Agent.
ss.14.9. Notification of Defaults and Events of Default. Each Lender
hereby agrees that, upon learning of the existence of a default, Default or an
Event of Default, it shall (to the extent notice has not previously been
provided) promptly notify the Agent thereof. The Agent hereby agrees that upon
receipt of any notice under this ss.14.9 it shall promptly notify the other
Lenders of the existence of such default, Default or Event of Default.
ss.14.10. Duties in the Case of Enforcement. In case one or more Events
of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent shall, if (a) so
requested by the Required Lenders and (b) the Lenders have provided to the Agent
such additional indemnities and assurances against expenses and liabilities as
the Agent may reasonably request, proceed to enforce the provisions of this
Agreement and exercise all or any such other legal and equitable and other
rights or remedies as it may have in respect of enforcement of the Lenders'
rights against the Borrowers and the Guarantors under this Agreement and the
other Loan Documents. The Required Lenders may direct the Agent in writing as to
the method and the extent (other than when such direction as to extent requires
Unanimous Lender Approval under ss.25) of any such enforcement, the Lenders
(including any Lender which is not one of the Required Lenders) hereby agreeing
to ratably and severally indemnify and hold the Agent harmless from all
liabilities incurred in respect of all actions taken or omitted in accordance
with such directions other than actions taken in gross negligence or willful
misconduct, provided that the Agent need not comply with any such direction to
the extent that the Agent reasonably believes the Agent's compliance with such
direction to be unlawful or commercially unreasonable in any applicable
jurisdiction.
ss.14.11. Successor Agent. Fleet, or any successor Agent, may resign as
Agent at any time by giving written notice thereof to the Lenders and to the
Borrowers. In addition, the Required Lenders may remove the Agent in the event
of the Agent's gross negligence or willful misconduct or in the event that the
Agent ceases to hold a Commitment of at least $20,000,000 or a Commitment
Percentage of at least five percent (5%) under this
- 94 -
<PAGE>
Agreement. Any such resignation or removal shall be effective upon appointment
and acceptance of a successor Agent, as hereinafter provided. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent, which is a Lender under this Agreement, provided that so long
as no Default or Event of Default has occurred and is continuing the Borrowers
shall have the right to approve any successor Agent, which approval shall not be
unreasonably withheld. If, in the case of a resignation by the Agent, no
successor Agent shall have been so appointed by the Required Lenders and
approved by the Borrowers, and shall have accepted such appointment, within
thirty (30) days after the retiring Agent's giving of notice of resignation,
then the retiring Agent may, on behalf of the Lenders, appoint any one of the
other Lenders as a successor Agent; provided that the Agent shall have first
submitted the names of two (2) Lenders to the Borrower Representative and,
within ten (10) Business Days of such submission the Borrower Representative
shall not have selected one of such Lenders as the successor Agent. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Agent, and the
retiring or removed Agent shall be discharged from all further duties and
obligations as Agent under this Agreement. After any Agent's resignation or
removal hereunder as Agent, the provisions of this ss.14 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
ss.14.12. Notices. Any notices or other information required hereunder
to be provided to the Agent and any formal statement or notice given by the
Agent to the Borrowers Representative or any Lender shall be promptly forwarded
by the Agent to each of the other Lenders.
ss.15. EXPENSES. The Borrowers jointly and severally agree to pay (a)
the reasonable costs of producing this Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (b) the reasonable fees,
expenses and disbursements of the Agent's outside counsel or any local counsel
to the Agent incurred in connection with the preparation, administration or
interpretation of the Loan Documents and other instruments mentioned herein,
each closing hereunder, and amendments, modifications, approvals, consents or
waivers hereto or hereunder, (c) the reasonable fees, expenses and disbursements
of the Agent incurred by the Agent in connection with the preparation,
administration or interpretation of the Loan Documents (including those relating
to the Competitive Bid Loans) and other instruments mentioned herein, each
closing hereunder, any amendments, modifications, approvals, consents or waivers
hereto or hereunder, or the cancellation of any Loan Document upon payment in
full in cash of all of the Obligations or pursuant to any terms of such Loan
Document for providing for such cancellation, including, without limitation, the
reasonable fees and disbursements (including, without limitation, photocopying
costs) of the Agent's counsel in preparing the documentation, (d) the reasonable
fees, costs, expenses and disbursements of the Agent and its Affiliates incurred
in connection with the syndication and/or participations of the Loans,
including, without limitation, costs of preparing syndication materials and
photocopying
- 96 -
<PAGE>
costs, subject to the limitations set forth in that certain letter agreement
regarding fees and expenses dated as of June 5, 1997 between CRLP and the Agent
(e) all reasonable expenses (including reasonable attorneys' fees and costs,
which attorneys may be employees of any Lender or the Agent, and the fees and
costs of appraisers, engineers, investment bankers, surveyors or other experts
retained by any Lender or the Agent in connection with any such enforcement,
preservation proceedings or dispute) incurred by any Lender or the Agent in
connection with (i) the enforcement of or preservation of rights under any of
the Loan Documents against any Borrower or any of its Subsidiaries or any
Guarantor or the administration thereof after the occurrence and during the
continuance of a Default or Event of Default (including, without limitation,
expenses incurred in any restructuring and/or "workout" of the Loans), and (ii)
any litigation, proceeding or dispute whether arising hereunder or otherwise, in
any way related to any Lender's or the Agent's relationship with any Borrower or
any of its Subsidiaries or any Guarantor, (f) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches and (g) all
costs incurred by the Agent in the future in connection with its inspection of
the Unencumbered Properties after the occurrence and during the continuance of
an Event of Default. The covenants of this ss.15 shall survive payment or
satisfaction of payment of amounts owing with respect to the Notes.
ss.16. INDEMNIFICATION. The Borrowers jointly and severally agree to
indemnify and hold harmless the Agent and each of the Lenders and the
shareholders, directors, agents, officers, subsidiaries and affiliates of the
Agent and each of the Lenders from and against any and all claims, actions and
suits, whether groundless or otherwise, and from and against any and all
liabilities, losses, settlement payments, obligations, damages and expenses of
every nature and character, arising out of this Agreement or any of the other
Loan Documents or the transactions contemplated hereby or thereby or which
otherwise arise in connection with the financing, including, without limitation,
(a) any actual or proposed use by any Borrower or any of its Subsidiaries of the
proceeds of any of the Loans, (b) any Borrower or any of its Subsidiaries or any
Guarantor entering into or performing this Agreement or any of the other Loan
Documents, or (c) pursuant to ss.7.17 hereof, in each case including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any investigative, administrative or judicial proceeding
(whether or not such indemnified Person is a party thereto), provided, however,
that the Borrowers shall not be obligated under this ss.16 to indemnify any
Person for liabilities arising from such Person's own gross negligence or
willful misconduct. In litigation, or the preparation therefor, the Borrowers
shall be entitled to select counsel reasonably acceptable to the Required
Lenders, and the Lenders (as approved by the Required Lenders) shall be entitled
to select their own supervisory counsel and, in addition to the foregoing
indemnity, the Borrowers agree to pay promptly the reasonable fees and expenses
of each such counsel if (i) in the written opinion of counsel to the Agent and
the Lenders, use of counsel of the Borrowers' choice could reasonably be
expected to give rise to a conflict of interest, (ii) the Borrowers shall not
have employed counsel reasonably satisfactory to the Agent and the Lenders
within a reasonable time after notice of the institution of any such litigation
or proceeding or (iii) the Borrower Representatives authorizes the Agent and the
Lenders to employ separate counsel at the
- 97 -
<PAGE>
Borrowers' expense. If and to the extent that the obligations of the Borrowers
under this ss.16 are unenforceable for any reason, the Borrowers hereby agree to
make the maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law. The provisions of this ss.16 shall
survive the repayment of the Loans and the termination of the obligations of the
Lenders hereunder and shall continue in full force and effect as long as the
possibility of any such claim, action, cause of action or suit exists.
ss.17. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents shall be deemed to have been relied upon by the Lenders and the
Agent, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Lenders of any of the Loans and the
issuance, extension or renewal of any Letters of Credit, as herein contemplated,
and shall continue in full force and effect so long as any Letter of Credit or
any amount due under this Agreement or the Notes or any of the other Loan
Documents remains outstanding or any Lender has any obligation to make any Loans
or the Agent or any Fronting Bank has any obligation to issue, extend or renew
any Letter of Credit. The indemnification obligations of the Borrowers provided
herein and in the other Loan Documents shall survive the full repayment of
amounts due and the termination of the obligations of the Lenders hereunder and
thereunder to the extent provided herein and therein. All statements contained
in any certificate delivered to any Lender or the Agent at any time by or on
behalf of any Borrower or any of its Subsidiaries or any Guarantor pursuant
hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by such Borrower or such Subsidiary or
such Guarantor hereunder.
ss.18. ASSIGNMENT; PARTICIPATIONS; ETC.
ss.18.1. Conditions to Assignment by Lenders. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment Percentage and Commitment and the same
portion of the Loans at the time owing to it, the Notes held by it, the
Competitive Bid Loan Accounts maintained by it and its participating interest in
the risk relating to any Letters of Credit); provided that (a) the Agent and,
unless an Event of Default shall have occurred and be continuing, the Borrower
Representative each shall have the right to approve any Eligible Assignee, which
approval shall not be unreasonably withheld or delayed, (b) each such assignment
shall be of a constant, and not a varying, percentage of all the assigning
Lender's rights and obligations under this Agreement as to such interests,
rights and obligations under this Agreement so assigned, (c) each such
assignment shall be in a minimum amount of $15,000,000 or an integral multiple
of $1,000,000 in excess thereof, (d) unless the assigning Lender shall have
assigned its entire Commitment, each Lender shall have at all times an amount of
its Commitment of not less than $15,000,000 and (e) the parties to such
assignment shall execute and deliver to the Agent, for recording in the Register
(as hereinafter defined), an assignment and assumption, substantially in the
form of Exhibit F hereto (an "Assignment and Assumption"), together
- 98 -
<PAGE>
with any Notes subject to such assignment. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Assumption, which effective date shall be at least five (5)
Business Days after the execution thereof, (i) the assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Assumption,
have the rights and obligations of a Lender hereunder and thereunder, and (ii)
the assigning Lender shall, to the extent provided in such assignment and upon
payment to the Agent of the registration fee referred to in ss.18.3, be released
from its obligations under this Agreement.
ss.18.2. Certain Representations and Warranties; Limitations;
Covenants. By executing and delivering an Assignment and Assumption, the parties
to the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows: (a) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto; (b) the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or any of its Subsidiaries or any Guarantor
or any other Person primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by any Borrower or any of its
Subsidiaries or any Guarantor or any other Person primarily or secondarily
liable in respect of any of the Obligations of any of their obligations under
this Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (c) such assignee confirms that
it has received a copy of this Agreement, together with copies of the most
recent financial statements referred to in ss.6.4 and ss.7.4 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Assumption; (d) such
assignee will, independently and without reliance upon the assigning Lender, the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (e) such assignee represents
and warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to the Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; (g) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender; (h) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Assumption; and (i) such assignee acknowledges that it has made
arrangements with the assigning Lender satisfactory to such assignee with
respect to its pro rata share of Letter of Credit Fees in respect of outstanding
Letters of Credit.
- 99 -
<PAGE>
ss.18.3. Register. The Agent shall maintain a copy of each Assignment
and Assumption delivered to it and a register or similar list (the "Register")
for the recordation of the names and addresses of the Lenders and the Commitment
Percentages of, and principal amount of the Loans owing to, the Lenders from
time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers and the Lenders at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation other than assignments
pursuant to ss.4.12, the assigning Lender agrees to pay to the Agent a
registration fee in the sum of $2,500.
ss.18.4. New Revolving Credit Notes. Upon its receipt of an Assignment
and Assumption executed by the parties to such assignment, together with each
Note subject to such assignment, the Agent shall (a) record the information
contained therein in the Register, and (b) give prompt written notice thereof to
the Borrowers and the Lenders (other than the assigning Lender). Within five (5)
Business Days after receipt of such notice, the Borrowers, at its own expense,
(i) shall execute and deliver to the Agent, in exchange for each surrendered
Note, a new Note to the order of such Eligible Assignee in an amount equal to
the amount assumed by such Eligible Assignee pursuant to such Assignment and
Assumption and, if the assigning Lender has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Lender in an
amount equal to the amount retained by it hereunder and (ii) shall deliver an
opinion from counsel to the Borrowers in substantially the form delivered on the
Closing Date pursuant to ss.10.8 as to such new Notes. Such new Notes shall
provide that they are replacements for the surrendered Notes, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment and
Assumption and shall otherwise be in substantially the form of the assigned
Notes. The surrendered Notes shall be cancelled and returned to the Borrowers.
ss.18.5. Participations. Each Lender may sell participations to one or
more banks or other entities in all or a portion of such Lender's rights and
obligations under this Agreement and the other Loan Documents; provided that (a)
each such participation shall be in an amount of not less than $15,000,000, (b)
any such sale or participation shall not affect the rights and duties of the
selling Lender hereunder to the Borrowers and the Agent and the Lender shall
continue to exercise all approvals, disapprovals and other functions of a
Lender, (c) the only rights granted to the participant pursuant to such
participation arrangements with respect to waivers, amendments or modifications
of, or approvals under, the Loan Documents shall be the rights to approve
waivers, amendments or modifications that would reduce the principal of or the
interest rate on any Loans, extend the term (other than any extension
contemplated by the definition of "Maturity Date") or increase the amount of the
Commitment of such Lender as it relates to such participant, reduce the amount
of any fees to which such participant is entitled or extend any regularly
scheduled payment date for principal or interest, and (d) no participant shall
have the right to grant
- 100 -
<PAGE>
further participations or assign its rights, obligations or interests under such
participation to other Persons without the prior written consent of the Agent.
ss.18.6. Pledge by Lender. Notwithstanding any other provision of this
Agreement, any Lender at no cost to the Borrowers may at any time pledge all or
any portion of its interest and rights under this Agreement (including all or
any portion of its Notes) to any of the twelve Federal Reserve Banks organized
under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341. No such pledge or the
enforcement thereof shall release the pledgor Lender from its obligations
hereunder or under any of the other Loan Documents.
ss.18.7. No Assignment by Borrowers. None of the Borrowers shall assign
or transfer any of its rights or obligations under any of the Loan Documents
without prior Unanimous Lender Approval.
ss.18.8. Disclosure. The Borrowers agree that, in addition to
disclosures made in accordance with standard banking practices, any Lender may
disclose information obtained by such Lender pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder. Any
such disclosed information shall be treated by any assignee or participant with
the same standard of confidentiality set forth in ss.7.10 hereof.
ss.18.9. Syndication. The Borrowers acknowledge that the Agent intends,
and shall have the right, by itself or through its Affiliates, to syndicate or
enter into co-lending arrangements with respect to the Loans and the Total
Commitment pursuant to this ss.18, and the Borrowers agree to reasonably
cooperate with the Agent's and its Affiliate's syndication and/or co-lending
efforts, such cooperation to include, without limitation, the provision of
information reasonably requested by potential syndicate members.
ss.19. NOTICES, ETC. Except as otherwise expressly provided in this
Agreement, all notices and other communications made or required to be given
pursuant to this Agreement or the Notes or any Letter of Credit Applications
shall be in writing and shall be delivered in hand, or mailed by United States
registered or certified first class mail, return receipt requested, postage
prepaid; or sent by overnight courier; or sent by facsimile and confirmed by
delivery via overnight courier or postal service; addressed as follows:
(a) if to any Borrower or any Guarantor, to the Borrower
Representative at Cali Realty Corporation, 11 Commerce Drive, Cranford, New
Jersey 07016, Attention: Mr. Barry Lefkowitz, Chief Financial Officer, with a
copy to Andrew S. Levine, Esq., Pryor, Cashman, Sherman & Flynn, 410 Park
Avenue, New York, New York 10222, or to such other address for notice as the
Borrower Representative or any Guarantor shall have last furnished in writing to
the Agent;
(b) if to the Agent, at 111 Westminster Street, Mail Code
RI-MO-215, Providence, Rhode Island 02903, Attention: Mark E. Dalton, Vice
President, or such other address for notice as the Agent shall have last
furnished in writing to the Borrowers, with a
- 101 -
<PAGE>
copy to Paul M. Vaughn, Esq., Bingham, Dana & Gould LLP, 150 Federal Street,
Boston, Massachusetts 02110, or at such other address for notice as the Agent
shall last have furnished in writing to the Person giving the notice; and,
additionally, for any Completed Revolving Credit Loan Request, Competitive Bid
Quote Request or Letter of Credit Application Attention: Timothy J. Callahan,
Sr. Loan Administrator, Agency Services, Fleet Corporate Administration, Mail
Stop: MA OF DO5P One Federal Street, Boston, MA 02110.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to the party to which it is directed, at the time of the receipt
thereof by such party or the sending of such facsimile and (ii) if sent by
registered or certified first-class mail, postage prepaid, return receipt
requested on the fifth Business Day following the mailing thereof.
ss.20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS
AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND
SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE
OF LAW). EACH OF THE BORROWERS AND THE GUARANTORS AND THE AGENT AND THE LENDERS
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN
NEW YORK, NEW YORK OR ANY FEDERAL COURT SITTING IN NEW YORK, NEW YORK AND
CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS OR THE GUARANTORS OR THE
AGENT OR THE LENDERS BY MAIL AT THE ADDRESS SPECIFIED IN ss.19. EACH OF THE
BORROWERS AND THE GUARANTORS AND THE AGENT AND THE LENDERS HEREBY WAIVES ANY
OBJECTION THAT EITHER OF THEM MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
ss.21. HEADINGS. The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
ss.22. COUNTERPARTS. This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
- 102 -
<PAGE>
ss.23. ENTIRE AGREEMENT, ETC. The Loan Documents and any other
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in ss.25.
ss.24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. EXCEPT TO THE
EXTENT EXPRESSLY PROHIBITED BY LAW, EACH OF THE BORROWERS AND THE GUARANTORS AND
THE AGENT AND THE LENDERS HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, THE REVOLVING CREDIT NOTES OR ANY OF THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY
LAW, EACH OF THE BORROWERS AND EACH OF THE GUARANTORS HEREBY WAIVES ANY RIGHT
ANY OF THEM MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE
PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH OF THE BORROWERS
AND THE GUARANTORS (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY LENDER OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
LENDER OR THE AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (B) ACKNOWLEDGE THAT THE AGENT AND THE LENDERS HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY
ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED
HEREIN.
ss.25. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise
expressly provided in this Agreement, any acceptance, consent, approval or other
authorization required or permitted by this Agreement may be given, and any term
of this Agreement or of any of the other Loan Documents may be amended, and the
performance or observance by any Borrower or any Guarantor of any terms of this
Agreement or the other Loan Documents or the continuance of any default, Default
or Event of Default may be waived (either generally or in a particular instance
and either retroactively or prospectively) with, but only with, the written
consent of the Required Lenders.
Notwithstanding the foregoing, Unanimous Lender Approval shall be
required for any amendment, modification or waiver of this Agreement that:
(i) reduces or forgives any
principal of any unpaid Loan or any interest thereon
(including any interest "breakage" costs)
- 103 -
<PAGE>
or any fees due any Lender hereunder, or permits any
prepayment not otherwise permitted hereunder; or
(ii) changes the unpaid principal
amount of, or the rate of interest on, any Loan; or
(iii) changes the date fixed for any
payment of principal of or interest on any Loan
(including, without limitation, any extension of the
Maturity Date) or any fees payable hereunder; or
(iv) changes the amount of any
Lender's Commitment (other than pursuant to an
assignment permitted under ss.18.1 hereof) or
increases the amount of the Total Commitment; or
(v) amends any of the covenants
contained inss.ss.9.1, 9.3, 9.4, 9.9 or 9.10 hereof;
or
(vi) releases or reduces the
liability of any Guarantor pursuant to its Guaranty
other than as provided in ss.5; or
(vii) modifies this ss.25 or any
other provision herein or in any other Loan Document
which by the terms thereof expressly requires
Unanimous Lender Approval; or
(viii) amends any of the provisions
governing funding contained in ss.2 hereof; or
(ix) changes the rights, duties or
obligations of the Agent specified in ss.14 hereof
(provided that no amendment or modification to such
ss.14 or to the fee payable to the Agent under this
Agreement may be made without the prior written
consent of the Agent); or
(x) changes the definitions of
Required Lenders or Unanimous Lender Approval.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Agent or the Lenders or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial to such right or
any other rights of the Agent or the Lenders. No notice to or demand upon any
Borrower shall entitle any Borrower to other or further notice or demand in
similar or other circumstances.
- 104 -
<PAGE>
ss.26. SEVERABILITY. The provisions of this Agreement are severable,
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
- 105 -
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as a sealed instrument as of the date first set forth above.
CALI REALTY, L.P.
By: Cali Realty Corporation, its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P., its general partner
By: Cali Sub IV, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
- 106 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
- 107 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
- 108 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
- 109 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
- 110 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P. D/B/A RM STAMFORD REALTY
ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: _______________________________________
Name: Barry Lefkowitz
Title: Vice President
- 111 -
<PAGE>
FLEET NATIONAL BANK, individually and as Agent
By: _______________________________________
Name:
Title:
- 112 -
<PAGE>
BANK OF AMERICA, NT&SA
By: _______________________________________
Name:
Title:
- 113 -
<PAGE>
KREDIETBANK NV
By: _______________________________________
Name:
Title:
- 114 -
<PAGE>
BANKERS TRUST
By: _______________________________________
Name:
Title:
- 115 -
<PAGE>
THE CHASE MANHATTAN BANK, individually and as
Syndication Agent
By: _______________________________________
Name:
Title:
- 116 -
<PAGE>
CRESTAR BANK
By: _______________________________________
Name:
Title:
- 117 -
<PAGE>
COMMERZBANK
By: _______________________________________
Name:
Title:
- 118 -
<PAGE>
FIRST NATIONAL BANK OF CHICAGO
By: _______________________________________
Name:
Title:
- 119 -
<PAGE>
KEYBANK
By: _______________________________________
Name:
Title:
- 120 -
<PAGE>
KREDIETBANK NV
By: _______________________________________
Name:
Title:
- 121 -
<PAGE>
MELLON BANK, NA
By: _______________________________________
Name:
Title:
- 122 -
<PAGE>
PNC BANK, N.A.
By: _______________________________________
Name:
Title:
- 123 -
<PAGE>
SIGNET BANK
By: _______________________________________
Name:
Title:
- 124 -
<PAGE>
SUMMIT BANK
By: _______________________________________
Name:
Title:
- 125 -
<PAGE>
Exhibit A
[Form of Revolving Credit Note]
REVOLVING CREDIT NOTE
$______________ _______ ___, 19__
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of _______________, [a national banking association] (the "Lender") at
the Agent's Head Office (as defined in the Credit Agreement defined below):
(a) prior to or on the Maturity Date the principal amount of
_________________ Dollars ($_______________) or, if less, the aggregate
unpaid principal amount of Revolving Credit Loans advanced by the
Lender to the Borrowers pursuant to the Revolving Credit Agreement
dated as of August ___, 1997 (as amended and in effect from time to
time, the "Credit Agreement"), among the Borrowers, the Lender, Fleet
National Bank, as Agent, and other parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof pursuant to the Credit Agreement or by operation of law is
entitled to the benefits of the Credit Agreement and the other Loan Documents,
and may enforce the agreements of the Borrower contained therein, and any holder
hereof may exercise the respective remedies provided for thereby or otherwise
available in respect thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Note and not otherwise defined
herein shall have the same meanings herein as in the Credit Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit
- 1 -
<PAGE>
Loan or (as the case may be) the receipt of such payment. The outstanding amount
of the Revolving Credit Loans set forth on the grid attached to this Note, or
the continuation of such grid, or any other similar record, including computer
records, maintained by the Lender with respect to any Revolving Credit Loans
shall be prima facie evidence of the principal amount thereof owing and unpaid
to the Lender, but the failure to record, or any error in so recording, any such
amount on any such grid, continuation or other record shall not limit or
otherwise affect the obligation of the Borrowers hereunder or under the Credit
Agreement to make payments of principal of and interest on this Note when due to
the extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT.
- 2 -
<PAGE>
EACH OF THE BORROWERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS
BROUGHT IN AN INCONVENIENT COURT.
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_________________________ By: ______________________________
Name:
Title:
[OTHER BORROWERS]
- 3 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
</TABLE>
- 4 -
<PAGE>
Exhibit B
[FORM OF SUBSIDIARY GUARANTY]
GUARANTY
Guaranty, dated as of _______ ___, 19__ by _______________, a
_____________ ____________ (the "Guarantor"), in favor of each of the Lenders
(as defined herein) and Fleet National Bank, as Agent (in such capacity, the
"Agent") for itself and for the other financial institutions (collectively, the
"Lenders") which are or may become parties to the Revolving Credit Agreement
dated as of August ___, 1997 among Cali Realty, L.P., a Delaware limited
partnership ("CRLP") and certain subsidiaries of CRLP (collectively, the
"Borrowers"), the Agent, and the Lenders, as the same may hereafter be amended
from time to time (the "Credit Agreement"). Capitalized terms used herein
without definition shall have the meanings ascribed to them in the Credit
Agreement.
WHEREAS, the Borrowers, the Agent and the Lenders have entered into the
Credit Agreement;
WHEREAS, the Borrowers and the Guarantor are members of a group of
related entities, the success of either one of which is dependent in part on the
success of the other members of such group;
WHEREAS, the Guarantor expects to receive substantial direct and
indirect benefits from the extensions of credit to the Borrowers by the Lenders
pursuant to the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition precedent to the Agent's and the Lenders'
willingness to extend, and to continue to extend, credit to the Borrowers under
the Credit Agreement that the Guarantor execute and deliver this Guaranty; and
WHEREAS, the Guarantor wishes to guaranty the Borrowers' obligations to
the Lenders and the Agent under and in respect of the Credit Agreement as herein
provided.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Guaranty of Payment and Performance of Obligations. In consideration
of the Lenders' extending credit or otherwise in their discretion giving time,
financial or banking facilities or accommodations to the Borrowers, the
Guarantor hereby unconditionally guarantees to the Agent and each Lender that
the
- 1 -
<PAGE>
Borrowers will duly and punctually pay or perform, at the place specified
therefor, or if no place is specified, at the Agent's Head Office, (i) all
indebtedness, obligations and liabilities of the Borrowers to any of the Lenders
and the Agent, individually or collectively, under the Credit Agreement or any
of the other Loan Documents or in respect of any of the Loans or the Notes or
other instruments at any time evidencing any thereof, whether existing on the
date of the Credit Agreement or arising or incurred thereafter, direct or
indirect, secured or unsecured, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, arising by contract, operation
of law or otherwise; and (ii) without limitation of the foregoing, all
reasonable fees, costs and expenses incurred by the Agent or the Lenders in
attempting to collect or enforce any of the foregoing, accrued in each case to
the date of payment hereunder (collectively the "Obligations" and individually
an "Obligation"). This Guaranty is an absolute, unconditional and continuing
guaranty of the full and punctual payment and performance by the Borrowers of
the Obligations and not of their collectibility only and is in no way
conditioned upon any requirement that any Lender or the Agent first attempt to
collect any of the Obligations from the Borrowers or resort to any security or
other means of obtaining payment of any of the Obligations which any Lender or
the Agent now has or may acquire after the date hereof or upon any other
contingency whatsoever. Upon any Event of Default which is continuing by the
Borrowers in the full and punctual payment and performance of the Obligations,
the liabilities and obligations of the Guarantor hereunder shall, at the option
of the Agent, become forthwith due and payable to the Agent and to the Lender or
Lenders owed the same without demand or notice of any nature, all of which are
expressly waived by the Guarantor, except for notices required to be given to
the Borrowers under the Loan Documents. Payments by the Guarantor hereunder may
be required by any Lender or the Agent on any number of occasions.
2. Guarantor's Further Agreements to Pay. The Guarantor further agrees,
as the principal obligor and not as a guarantor only, to pay to each Lender and
the Agent forthwith upon demand, in funds immediately available to such Lender
or the Agent, all costs and expenses (including court costs and legal fees and
expenses) incurred or expended by the Agent or such Lender in connection with
this Guaranty and the enforcement hereof, together with interest on amounts
recoverable under this Guaranty from the time after such amounts become due at
the default rate of interest set forth in the Credit Agreement; provided that if
such interest exceeds the maximum amount permitted to be paid under applicable
law, then such interest shall be reduced to such maximum permitted amount.
3. Payments. The Guarantor covenants and agrees that the Obligations
will be paid strictly in accordance with their respective terms regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent or any Lender with
respect thereto. Without limiting the generality of the foregoing, the
Guarantor's obligations hereunder with respect to
- 2 -
<PAGE>
any Obligation shall not be discharged by a payment in a currency other than the
currency in which the Obligation is denominated (the "Obligation Currency") or
at a place other than the place specified for the payment of the Obligation,
whether pursuant to a judgment or otherwise, to the extent that the amount so
paid on conversion to the Obligation Currency and transferred to Boston,
Massachusetts, U.S.A., under normal banking procedures does not yield the amount
of Obligation Currency due thereunder.
4. Taxes. All payments hereunder shall be made without any counterclaim
or set-off, free and clear of, and without reduction by reason of, any taxes,
levies, imposts, charges and withholdings, restrictions or conditions of any
nature ("Taxes"), which are now or may hereafter be imposed, levied or assessed
by the United States or any political subdivision or taxing authority thereof
(or any non-United States jurisdiction in which there is Real Estate) on
payments hereunder, all of which will be for the account of and paid by the
Guarantor. If for any reason, any such reduction is made or any Taxes are paid
by the Agent or any Lender (except for taxes on income or profits of such Agent
or Lender), Guarantor will pay to the Agent or such Lender such additional
amounts as may be necessary to ensure that the Agent or such Lender receives the
same net amount which it would have received had no reduction been made or Taxes
paid.
5. Consent to Jurisdiction. The Guarantor agrees that any suit for the
enforcement of this Guaranty or any of the other Loan Documents may be brought
in the courts of the State of New York sitting in New York, New York or any
federal court sitting in New York, New York and consents to the non-exclusive
jurisdiction of such courts and the service of process in any such suit being
made upon the Guarantor by mail at the address specified herein. Except to the
extent such waiver is expressly prohibited by law, the Guarantor hereby waives
any objection that it may now or hereafter have to the venue of any such suit or
any such court or that such suit is brought in an inconvenient court.
6. Liability of the Guarantor. The Agent and each Lender have and shall
have the absolute right to enforce the liability of the Guarantor hereunder
without resort to any other right or remedy including any right or remedy under
any other guaranty, and the release or discharge of any guarantor of any
Obligations shall not affect the continuing liability of the Guarantor
hereunder.
7. Representations and Warranties; Covenants. The Guarantor hereby
makes and confirms the representations and warranties made on its behalf by the
Borrowers pursuant to ss.6 of the Credit Agreement, as iF such representations
and warranties were set forth herein. The Guarantor hereby agrees to perform the
covenants set forth in ss.ss.7 and 8 of the Credit Agreement (to the extent such
covenants expressly apply to the Guarantor) as if such covenants were set forth
herein. The Guarantor acknowledges that it is, on a collective basis with the
- 3 -
<PAGE>
Borrowers and all other "Guarantors" (as defined in the Credit Agreement), bound
by the covenants set forth in ss.9 of the Credit Agreement. The Guarantor hereby
confirms that it shall be bound by all acts or omissions of the Borrower
Representative pursuant to the Credit Agreement.
8. Effectiveness. The obligations of the Guarantor under this Guaranty
shall continue in full force and effect and shall remain in operation until all
of the Obligations shall have been paid in full or otherwise fully satisfied,
and continue to be effective or be reinstated, as the case may be, if at any
time payment or other satisfaction of any of the Obligations is rescinded or
must otherwise be restored or returned upon the bankruptcy, insolvency, or
reorganization of the Borrowers, or otherwise, as though such payment had not
been made or other satisfaction occurred. No invalidity, irregularity or
unenforceability of the Obligations by reason of applicable bankruptcy laws or
any other similar law, or by reason of any law or order of any government or
agency thereof purporting to reduce, amend or otherwise affect the Obligations,
shall impair, affect, be a defense to or claim against the obligations of the
Guarantor under this Guaranty.
9. Freedom of Lender to Deal with Borrowers and Other Parties. The
Agent and each Lender shall be at liberty, without giving notice to or obtaining
the assent of the Guarantor and without relieving the Guarantor of any liability
hereunder, to deal with the Borrowers and with each other party who now is or
after the date hereof becomes liable in any manner for any of the Obligations,
in such manner as the Agent or such Lender in its sole discretion deems fit, and
to this end the Guarantor gives to the Agent and each Lender full authority in
its sole discretion to do any or all of the following things: (a) extend credit,
make loans and afford other financial accommodations to the Borrowers at such
times, in such amounts and on such terms as the Agent or such Lender may
approve, (b) vary the terms and grant extensions of any present or future
indebtedness or obligation of the Borrowers or of any other party to the Agent
or such Lender, (c) grant time, waivers and other indulgences in respect
thereto, (d) vary, exchange, release or discharge, wholly or partially, or delay
in or abstain from perfecting and enforcing any security or guaranty or other
means of obtaining payment of any of the Obligations which the Agent or any
Lender now has or may acquire after the date hereof, (e) accept partial payments
from the Borrowers or any such other party, (f) release or discharge, wholly or
partially, any endorser or guarantor, and (g) compromise or make any settlement
or other arrangement with the Borrowers or any such other party.
10. Unenforceability of Obligations Against Borrowers; Invalidity of
Security or Other Guaranties. If for any reason the Borrowers have no legal
existence or are under no legal obligation to discharge any of the Obligations
undertaken or purported to be undertaken by it or on its behalf, or if any of
the moneys included in the Obligations have become irrecoverable from the
Borrowers by operation of law or for any other reason, this Guaranty shall
nevertheless be
- 4 -
<PAGE>
binding on the Guarantor to the same extent as if the Guarantor at all times had
been the principal debtor on all such Obligations. This Guaranty shall be in
addition to any other guaranty or other security for the Obligations, and it
shall not be prejudiced or rendered unenforceable by the invalidity of any such
other guaranty or security.
11. Waivers by Guarantor. The Guarantor waives: notice of acceptance
hereof, notice of any action taken or omitted by the Agent or any Lender in
reliance hereon, and any requirement that the Agent or any Lender be diligent or
prompt in making demands hereunder, giving notice of any default by the
Borrowers or asserting any other rights of the Agent or any Lender hereunder.
The Guarantor also irrevocably waives, to the fullest extent permitted by law,
all defenses in the nature of suretyship that at any time may be available in
respect of the Guarantor's obligations hereunder by virtue of any statute of
limitations, valuation, stay, moratorium law or other similar law now or
hereafter in effect.
12. Waiver of Subrogation Rights. Notwithstanding any other provision
to the contrary contained herein or provided by applicable law, unless and until
all of the Obligations have been indefeasibly paid in full in cash and satisfied
in full, the Guarantor hereby irrevocably waives any and all rights it may have
at any time (whether arising directly or indirectly, by operation of law or by
contract) to assert any claim against the Borrowers on account of payments made
under this Guaranty, including, without limitation, any and all rights of or
claim for subrogation, contribution, reimbursement, exoneration and indemnity,
and further waives any benefit of and any right to participate in any collateral
which may be held by the Agent or any Lender or any affiliate of the Agent or
any Lender. In addition, the Guarantor will not claim any set-off or
counterclaim against the Borrowers in respect of any liability it may have to
the Borrowers unless and until all of the Obligations have been indefeasibly
paid in full in cash and satisfied in full.
13. Demands. Any demand on or notice made or required to be given
pursuant to this Guaranty shall be in writing and shall be delivered in hand,
mailed by United States registered or certified first class mail, postage
prepaid, return receipt requested, sent by overnight courier, or sent by
telegraph, telecopy, telefax or telex and confirmed by delivery via courier or
postal service, addressed as follows:
(a) if to the Guarantor, at
-----------------------------------
-----------------------------------
or at such other address for notice as the Guarantor shall
last have furnished in writing to the Agent with a copy to:
- 5 -
<PAGE>
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
or at such other address for notice as the Guarantor shall
last have furnished in writing to the Agent; and
(b) if to the Agent, at 111 Westminster Street RI-MO-215,
Providence, Rhode Island 02903, Attention: Mark E. Dalton, or such
other address for notice as the Agent shall last have furnished in
writing to the Guarantor, with a copy to Paul M. Vaughn, Esq., Bingham,
Dana & Gould LLP, 150 Federal Street, Boston, Massachusetts 02110, or
at such other address for notice as the Agent shall last have furnished
in writing to the Guarantor.
(c) if to any Lender, at such Lender's address as set forth in
Schedule 1.2 to the Credit Agreement or as shall have last been
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to the party to which it is directed, at the time of the receipt
thereof by such party or the sending of such facsimile or (ii) if sent by
registered or certified first-class mail, postage prepaid, return receipt
requested, on the fifth Business Day following the mailing thereof.
14. Amendments, Waivers, Etc.. No provision of this Guaranty can be
changed, waived, discharged or terminated except by an instrument in writing
signed by the Agent and the Guarantor expressly referring to the provision of
this Guaranty to which such instrument relates; and no such waiver shall extend
to, affect or impair any right with respect to any Obligation which is not
expressly dealt with therein. No course of dealing or delay or omission on the
part of the Agent or the Lenders or any of them in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto.
15. Further Assurances. The Guarantor at its sole cost and expense
agrees to do all such things and execute, acknowledge and deliver all such
documents and instruments as the Agent from time to time may reasonably request
in order to give full effect to this Guaranty and to perfect and preserve the
rights and powers of the Agent and the Lenders hereunder.
16. Miscellaneous Provisions. This Guaranty is intended to take effect
as a sealed instrument to be governed by and construed in accordance with the
laws of the State of New York and shall inure to the benefit of the Agent, each
Lender and its
- 6 -
<PAGE>
respective successors in title and assigns permitted under the Credit Agreement,
and shall be binding on the Guarantor and the Guarantor's successors in title,
assigns and legal representatives. The rights and remedies herein provided are
cumulative and not exclusive of any remedies provided by law or any other
agreement. The invalidity or unenforceability of any one or more sections of
this Guaranty shall not affect the validity or enforceability of its remaining
provisions. Captions are for ease of reference only and shall not affect the
meaning of the relevant provisions. The meanings of all defined terms used in
this Guaranty shall be equally applicable to the singular and plural forms of
the terms defined.
17. WAIVER OF JURY TRIAL. EXCEPT TO THE EXTENT SUCH WAIVER IS EXPRESSLY
PROHIBITED BY LAW, THE GUARANTOR HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY
JURISDICTION AND IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING
OUT OF THIS GUARANTY, THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED
PURSUANT HERETO OR THERETO OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING,
AMONG THE GUARANTOR, THE BORROWERS, THE AGENT AND/OR THE LENDERS. THIS WAIVER OF
JURY TRIAL SHALL BE EFFECTIVE FOR EACH AND EVERY DOCUMENT EXECUTED BY THE
GUARANTOR, THE AGENT OR THE LENDERS AND DELIVERED TO THE AGENT OR THE LENDERS,
AS THE CASE MAY BE, WHETHER OR NOT SUCH DOCUMENTS SHALL CONTAIN SUCH A WAIVER OF
JURY TRIAL. THE GUARANTOR CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND
FREELY MADE.
IN WITNESS WHEREOF, the Guarantor has executed and delivered this
Guaranty as of the date first above written.
GUARANTOR:
__________________________________
By: ______________________________
Name:
Title:
- 7 -
<PAGE>
Exhibit C
[Form of Revolving Credit Loan Request]
Fleet National Bank, as Agent Fleet National Bank, as Agent
111 Westminster Street, RI-MO-215 Agency Services
Providence, Rhode Island 02902 Fleet Corporate Administration
Mail Stop: MAOFDO5P
One Federal Street
Boston, MA 02110
Attn: Mark E. Dalton, Attn: Timothy J. Callahan,
Vice President Senior Loan Administrator
REVOLVING CREDIT LOAN REQUEST
This Loan Request is made pursuant to ss.2.5 of the Revolving Credit
Agreement dated as of August ___, 1997 among Cali Realty, L.P. ("CRLP") and
certain subsidiaries of CRLP party thereto (collectively, the "Borrowers"),
Fleet National Bank, individually and as Agent, and certain other parties as
provided therein (as the same may now or hereafter be amended from time to time,
the "Credit Agreement"). Unless otherwise defined herein, the terms used in this
Loan Request have the meanings given them in the Credit Agreement.
1. CRLP, as Borrower Representative hereby requests:
____ Revolving Credit Loan
____ Letter of Credit
2. The principal amount of the Revolving Credit Loan or the amount of the Letter
of Credit requested in this Loan Request is:
$_______________
3. The proposed Drawdown Date of the Revolving Credit Loan or the date of issue,
extension or renewal of the Letter of Credit requested in this Loan Request is:
_________ ____, 19__
4. The Interest Period requested for the Revolving Credit Loan requested in this
Loan Request (if any) is:
_____________________
- 1 -
<PAGE>
5. The Type of Revolving Credit Loan being requested in this Loan Request (if
any) is:
_____ Prime Rate Loan
_____ LIBOR Loan
6. Please disburse the proceeds of the requested Revolving Credit Loan as
follows:
WITNESS my hand this ___ day of _______, 19__.
CALI REALTY, L.P.
By: Cali Realty Corporation, its general partner
By: _____________________________
Name:
Title:
- 2 -
<PAGE>
Exhibit D-1
COMPLIANCE CERTIFICATE OF CHIEF
FINANCIAL OFFICER OR TREASURER CONTROLLER
OR EXECUTIVE VICE-PRESIDENT OR PRESIDENT
(Loan Request)
The undersigned Chief Financial Officer/ Treasurer/ Controller/
Executive Vice President/President of Cali Realty, L.P. ("CRLP"), as the
Borrower Representative (as defined in the Credit Agreement defined below)
HEREBY CERTIFIES THAT:
This Compliance Certificate is furnished pursuant to ss.2.5(iv)(c),
ss.2A.9 and/or ss.11.1 of the RevoLving Credit Agreement dated as of August __,
1997 among CRLP and certain of its subsidiaries party thereto (collectively, the
"Borrowers"), Fleet National Bank, individually and as Agent, certain other
Lenders and other parties as provided therein (as the same may now or hereafter
be amended from time to time, the "Credit Agreement"). Unless otherwise defined
herein, the terms used in this Compliance Certificate and Schedule 1 attached
hereto have the meanings given them in the Credit Agreement.
Schedule 1 attached hereto sets forth the financial data and
computations evidencing the Borrowers' compliance with the covenants contained
in ss.9.1 and ss.9.9 of the Credit Agreement on a pro-forma basis afTer giving
effect to the requested Revolving Credit Loan, Competitive Bid Loan and/or
Letter of Credit, all of which data and computations, to the knowledge and
belief of the chief financial officer or treasurer, controller or executive vice
president or president executing and delivering this Compliance Certificate on
behalf of CRLP, as Borrower Representative (the "Chief Financial Officer" or
"Controller" or "Treasurer", or "Executive Vice President" or "President" as the
case may be), are true, complete and correct.
The activities of the Borrowers, the Guarantors and their respective
Subsidiaries and subsidiaries (as defined in the Credit Agreement) since the
date of the last Compliance Certificate submitted by the Borrowers to the Agent
have been reviewed by the Chief Financial Officer/
Treasurer/Controller/Executive Vice President/President and/or by employees or
agents under his/her immediate supervision. Based upon such review, to the
knowledge and belief of the Chief Financial Officer/
Treasurer/Controller/Executive Vice President/President, both before and after
giving effect to the requested Revolving Credit Loan, Competitive Bid Loan
and/or Letter of Credit, (1) no Default or Event of Default exists on the date
hereof or will exist under the Credit Agreement or any other Loan Document on
the Drawdown Date of such Loan or the date of [issue] [extension or renewal] of
such Letter of Credit, and (2) after taking into account such requested Loan or
Letter of Credit, no Default or Event of Default will exist
- 1 -
<PAGE>
as of the Drawdown Date (other than regarding ss.7.22 as provided in ss.11 of
the Credit Agreement) or the date of [issue] [extension or renewal] of such
Letter of Credit, or thereafter.
To the knowledge and belief of the Chief Financial
Officer/Treasurer/Executive Vice President/President/Controller, each of the
representations and warranties of the Borrowers and the Guarantors contained in
the Credit Agreement, the other Loan Documents or in any document or instrument
delivered pursuant to or in connection with the Credit Agreement was true as of
the date as of which they were made and is also true at and as of the date
hereof and will be true at and as of the time of the making of the requested
Loan or the [issuance] [extension or renewal] of the requested Letter of Credit,
with the same effect as if made at and as of that time (except to the extent of
changes resulting from transactions contemplated or not prohibited by the Credit
Agreement or the other Loan Documents and changes occurring in the ordinary
course of business, and except to the extent that such representations and
warranties relate expressly to an earlier date) or to the extent of a
Non-Material Breach, the effect of which is included in the Schedule 1
calculations as required by the Credit Agreement.
The Chief Financial Officer/Treasurer/Controller/Executive Vice
President/President certifies that he/she is authorized to execute and deliver
this Compliance Certificate on behalf of CRLP, as Borrower Representative.
WITNESS our hands this __ day of ___________, 19__.
CALI REALTY, L.P.
By: Cali Realty Corporation, its general partner
By: ______________________________
Name:
Title:
- 2 -
<PAGE>
Exhibit D-2
COMPLIANCE CERTIFICATE
OF CHIEF FINANCIAL OFFICER
(CRLP Financial Statements)
The undersigned Chief Financial Officer/Treasurer of Cali Realty, L.P.,
("CRLP") HEREBY CERTIFIES THAT:
This Compliance Certificate is furnished pursuant to ss.7.4(c) of the
Revolving Credit Agreement dated aS of August __, 1997 among CRLP and certain of
its subsidiaries party thereto (collectively, the "Borrowers"), Fleet National
Bank, individually and as Agent, certain other Lenders and other parties as
provided therein (as the same may now or hereafter be amended from time to time,
the "Credit Agreement"). Unless otherwise defined herein, the terms used in this
Compliance Certificate and Schedule 1 attached hereto have the meanings given
them in the Credit Agreement.
As required by ss.7.4(c) of the Credit Agreement, financial statements
of CRLP and its respectivE subsidiaries (as defined in the Credit Agreement) for
the [year] [quarter] ended ______, 19__ (the "Financial Statements") prepared in
accordance with GAAP in all material respects (subject, in the case of quarterly
statements, to year-end adjustments none of which are anticipated to be
materially adverse, except as specifically disclosed in this Compliance
Certificate) accompany this Compliance Certificate. The Financial Statements
present fairly the financial position of CRLP and its subsidiaries (as defined
in the Credit Agreement) as at the date thereof and the results of operations of
CRLP and its subsidiaries for the period covered thereby.
Schedule 1 attached hereto sets forth the financial data and
computations evidencing the Borrowers' compliance with the covenants contained
in ss.9 of the Credit Agreement, all of which data and computations, to thE
knowledge and belief of the chief financial officer executing and delivering
this Compliance Certificate on behalf of CRLP, as Borrowers Representative (the
"Chief Financial Officer"), are true, complete and correct.
The activities of the Borrowers and its subsidiaries (as defined in the
Credit Agreement) during the period covered by the Financial Statements have
been reviewed by the Chief Financial Officer and/or by employees or agents under
his immediate supervision. Based upon such review, during the period covered by
the Financial Statements, and as of the date of this Certificate, no Default or
Event of Default has occurred and is continuing, except as specifically
disclosed in this Compliance Certificate.
- 1 -
<PAGE>
The Chief Financial Officer certifies that he is authorized to execute
and deliver this Compliance Certificate on behalf of CRLP, as Borrower
Representative.
WITNESS our hands this __ day of ___________, 19__.
CALI REALTY, L.P.
By: Cali Realty Corporation, its general partner
By: ______________________________
Name:
Title:
- 2 -
<PAGE>
Exhibit D-3
COMPLIANCE CERTIFICATE
OF CHIEF FINANCIAL OFFICER
(CRC Financial Statements)
The undersigned Chief Financial Officer of Cali Realty Corporation
("CRC") HEREBY CERTIFIES THAT:
This Compliance Certificate is furnished pursuant to ss.7.4(c) of the
Revolving Credit Agreement dated aS of August __, 1997 among Cali Realty, L.P.
and certain of its subsidiaries party thereto (collectively, the "Borrowers"),
Fleet National Bank, individually and as Agent, certain other Lenders and other
parties as provided therein (as the same may now or hereafter be amended from
time to time, the "Credit Agreement"). Unless otherwise defined herein, the
terms used in this Compliance Certificate and Schedule 1 attached hereto have
the meanings given them in the Credit Agreement.
As required by ss.7.4(c) of the Credit Agreement, financial statements
of CRC and its respectivE subsidiaries (as defined in the Credit Agreement) for
the [year] [quarter] ended ______, 19__ (the "Financial Statements") prepared in
accordance with GAAP in all material respects (subject, in the case of quarterly
statements, to year-end adjustments none of which are anticipated to be
materially adverse, except as specifically disclosed in this Compliance
Certificate) accompany this Compliance Certificate. The Financial Statements
delivered herewith present fairly the financial position of CRC and its
subsidiaries (as defined in the Credit Agreement) as at the date thereof and the
results of operations of CRC and its subsidiaries for the period covered
thereby.
The activities of CRC and its subsidiaries (as defined in the Credit
Agreement) during the period covered by the Financial Statements have been
reviewed by the chief financial officer of CRC and/or by employees or agents
under his immediate supervision. Based upon such review, during the period
covered by the Financial Statements, and as of the date of this Certificate, no
Default or Event of Default has occurred and is continuing, except as
specifically disclosed in this Compliance Certificate.
- 1 -
<PAGE>
WITNESS our hands this __ day of ___________, 19__.
CALI REALTY CORPORATION
By: ______________________________
Name:
Title:
- 2 -
<PAGE>
Exhibit D-4
COMPLIANCE CERTIFICATE OF CHIEF
FINANCIAL OFFICER OR TREASURER OR CONTROLLER
OR EXECUTIVE VICE PRESIDENT OR PRESIDENT
(Disposition of Unencumbered Property)
The undersigned Chief Financial Officer/ Treasurer/ Controller/
Executive Vice President/ President of Cali Realty, L.P. ("CRLP") HEREBY
CERTIFIES THAT:
This Compliance Certificate is furnished pursuant to ss.8.4(b)(i),
ss.8.4(b)(ii) or ss.8.4(b)(iv) oF the Revolving Credit Agreement dated as of
August ___, 1997 among CRLP and certain of its subsidiaries party thereto
(collectively, the "Borrowers"), Fleet National Bank, individually and as Agent,
certain other Lenders and other parties as provided therein (as the same may now
or hereafter be amended from time to time, the "Credit Agreement"). CRLP, as
Borrower Representative hereby gives the Agent notice of a Borrower's or a
Guarantor's intention to Sell an Unencumbered Property or to grant an
Indebtedness Lien on an Unencumbered Property pursuant to ss.8.4(b)(i),
ss.8.4(b)(ii) or ss.8.4(b)(iv) or for other Real Estate in the case of
ss.8.4(b)(i) of the Credit Agreement. Unless otherwise defined herein, the terms
used in this Compliance Certificate and Schedule 1 attached hereto have the
meanings described in the Credit Agreement.
Schedule 1 attached hereto sets forth the financial data and
computations evidencing the Borrowers' compliance with the covenants contained
in ss.9 of the Credit Agreement on a pro forma basis after giving effect tO such
proposed Sale or Indebtedness Lien and all liabilities, fixed or contingent,
pursuant thereto, all of which data and computations, to the knowledge and
belief of the chief financial officer or treasurer or controller or executive
vice president or president executing and delivering this Compliance Certificate
on behalf of CRLP (the "Chief Financial Officer" or "Treasurer" or "Executive
Vice President" or "Controller" or "President", as the case may be), are true,
complete and correct.
The activities of the Borrowers, the Guarantors, their respective
Subsidiaries and subsidiaries (as defined in the Credit Agreement) have been
reviewed by the Chief Financial Officer/ Treasurer/ Executive Vice President/
Controller/ President and/or by employees or agents under his/her immediate
supervision. Based upon such review, to the best knowledge and belief of the
Chief Financial Officer/ Treasurer/ Executive Vice President/ President,
Controller,
[(for ss.8.4(b)(i)) both before and after giving effect to the proposed Sale or
Indebtedness Lien, no Default oR Event of Default exists or will exist under any
Loan Document.]
- 1 -
<PAGE>
[(for ss.8.4(b)(ii)) no Default or Event of Default has occurred and is
continuing, or would occur and bE continuing after giving effect to the proposed
Sale or Indebtedness Lien, under ss.ss. 12.1(a), 12.1(b), 12.1(c) (resulting
from a failure to comply with ss.7.7 (as to the legal existence and REIT status
of CRC) or ss.9), 12.1(G), 12.1(h) or 12.1(j) of the Credit Agreement AND the
Borrowers intend to (i) apply the net proceeds of the proposed Sale or
Indebtedness Lien to the repayment of the Loan, (ii) segregate the net proceeds
in an escrow account and apply them solely to a qualified, deferred exchange
under ss.1031 of the Code or (iii) complete an exchange foR other real property
of equivalent value under ss.1031 of the Code, which real property will become
an UnencumbereD Property upon acquisition.]
[(for ss.8.4(b)(iv)) a Default or Event of Default has occurred and is
continuing, but after giving effect to thE proposed Sale or Indebtedness Lien
and the net proceeds thereof (i) such Default or Event of Default will be cured
and no other Default or Event of Default will occur, (ii) the proposed Sale or
Indebtedness Lien is the [first or second] such request under ss.8.4(b)(iv)
while any Commitment has been outstanding, (iii) the proposeD Sale or
Indebtedness Lien does not exceed $50,000,000, and (iv) the proposed Sale is at
fair market value or the proposed Indebtedness Lien is at not less than fair
market terms for institutional lenders.]
The Chief Financial Officer/Treasurer/Executive Vice
President/Controller/President certifies that he/she is authorized to execute
and deliver this Compliance Certificate on behalf of the Borrowers and the
Guarantors.
WITNESS our hands this __ day of ___________, 19__.
CALI REALTY, L.P.
By: Cali Realty Corporation, its general partner
By: ______________________________
Name:
Title:
- 2 -
<PAGE>
Exhibit D-6
COMPLIANCE CERTIFICATE OF CHIEF
FINANCIAL OFFICER OR TREASURER OR CONTROLLER
OR EXECUTIVE VICE PRESIDENT OR PRESIDENT
(Disposition of Real Estate other than Unencumbered Property)
The undersigned Chief Financial Officer/Treasurer/Controller/Executive
Vice President/ President of Cali Realty, L.P. ("CRLP") HEREBY CERTIFIES THAT:
This Compliance Certificate is furnished pursuant to ss.8.4(b)(iii) of
the Revolving Credit AgreemenT dated as of August ___, 1997 among CRLP and
certain of its subsidiaries party thereto (collectively, the "Borrowers"), Fleet
National Bank, individually and as Agent, certain other Lenders and other
parties as provided therein (as the same may now or hereafter be amended from
time to time, the "Credit Agreement"). CRLP, as Borrower Representative, hereby
gives the Agent notice of its intention to Sell Real Estate (other than
Unencumbered Property) or to grant Indebtedness Lien(s) on Real Estate (other
than Unencumbered Property) pursuant to ss.8.4(b)(iii) of the Credit Agreement.
Unless otherwise defined herein, the terms used in thiS Compliance Certificate
and Schedule 1 attached hereto shall have the meanings given them in the Credit
Agreement.
Schedule 1 attached hereto sets forth the financial data and
computations evidencing the Borrowers' compliance with the covenants contained
in ss.9 of the Credit Agreement on a pro forma basis after giving effect tO all
such proposed Sale(s) or Indebtedness Lien(s) and all liabilities, fixed or
contingent, pursuant thereto, all of which data and computations, to the
knowledge and belief of the chief financial officer or treasurer or controller
or executive vice president or president executing and delivering this
Compliance Certificate on behalf of the Borrower (the "Chief Financial Officer"
or "Treasurer" or "Executive Vice President" or "Controller" or "President", as
the case may be), are true, complete and correct.
The activities of the Borrowers, the Guarantors, their respective
Subsidiaries and subsidiaries (as defined in the Credit Agreement) have been
reviewed by the Chief Financial Officer/Treasurer/ Executive Vice
President/Controller President and/or by employees or agents under his/her
immediate supervision. Based upon such review, to the knowledge and belief of
the Chief Financial Officer/Treasurer/ Executive Vice President/
Controller/President, a Default or Event of Default has occurred and is
continuing or a Default or Event of Default will occur and be continuing after
giving effect to such proposed Sale(s) or Indebtedness Lien(s) and the Borrowers
shall [apply the net proceeds of the proposed Sale(s) or Indebtedness Lien(s) to
the repayment of the loans.] [Segregate the net proceeds of such Sale(s) or
Indebtedness Lien(s) in an escrow
- 1 -
<PAGE>
account with the Agent/another reasonably acceptable financial institution) and
apply such net proceeds solely to a qualified, deferred exchange under ss. 1031
of the Code (or to another use approved by the Required Lenders).] [Complete aN
exchange of such Real Estate for other real property of equivalent value under
ss. 1031 of the Code.].
The Chief Financial Officer/Treasurer/ Executive Vice President/
Controller/ President certifies that he/she is authorized to execute and deliver
this Compliance Certificate on behalf of the Borrowers and the Guarantors.
WITNESS our hands this __ day of ___________, 19__.
CALI REALTY, L.P.
By: Cali Realty Corporation, its general partner
By: ______________________________
Name:
Title:
- 2 -
<PAGE>
Exhibit E
[Form of Closing Certificate]
[LETTERHEAD OF CALI REALTY, L.P.]
August ___, 1997
Fleet National Bank, individually
and as Agent, and the other lending
institutions party to the Credit Agreement
described below
111 Westminster Street
Providence, Rhode Island 02903
RE: CLOSING CERTIFICATE UNDER REVOLVING CREDIT AGREEMENT
DATED AS OF AUGUST ___, 1997 (THE "CREDIT AGREEMENT")
Ladies and Gentlemen:
The undersigned, on behalf of itself and the other Borrowers, hereby
certifies to you, in accordance with the provisions of ss.10.14 of the Credit
Agreement, that the representations and warranties of the BorrowerS contained in
the Credit Agreement and in each document and instrument delivered pursuant to
or in connection therewith are true as of the date hereof and that no Default or
Event of Default has occurred and is continuing on the date hereof.
Unless otherwise defined herein, the terms used in this Closing
Certificate have the meanings given them in the Credit Agreement.
Very Truly Yours,
CALI REALTY, L.P.
By: Cali Realty Corporation, its general partner
By: ______________________________
Name:
Title:
<PAGE>
Exhibit F
[Form of Assignment and Assumption Agreement]
ASSIGNMENT AND ASSUMPTION AGREEMENT
Dated as of _____________ ___, 19__
Reference is made to the Revolving Credit Agreement, dated as of August
___, 1997 (as amended and in effect from time to time, the "Credit Agreement"),
among Cali Realty, L.P. ("CRLP") and certain subsidiaries of CRLP party thereto
(collectively, the "Borrowers"), Fleet National Bank as agent (the "Agent"), the
lending institutions referred to therein as Lenders (the "Lenders") and other
parties as stated therein. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Credit Agreement.
____________________________________ (the "Assignor") and
______________________ (the "Assignee") agree as follows:
1. Assignment. Subject to the terms and conditions of this Assignment
and Assumption Agreement, ss.18.1 and ss.18.2 of The Credit Agreement, the
Assignor hereby sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes without recourse to the Assignor, a $____________ interest
in and to the rights, benefits, indemnities and obligations of the Assignor
under the Credit Agreement equal to ______% in respect of the Total Commitment
immediately prior to the Effective Date (as hereinafter defined).
2. Assignor's Representations. The Assignor (i) represents and warrants
that (A) it is legally authorized to enter into this Assignment and Assumption
Agreement, (B) as of the date hereof, its Commitment is $__________, its
Commitment Percentage is ________%, the aggregate outstanding principal balance
of its Revolving Credit Loans equals $__________, the aggregate amount of its
Letter of Credit Participations equals $__________ [and the outstanding
principal balance of its Competitive Bid Loans is $__________] (in each case
after giving effect to the assignment contemplated hereby but without giving
effect to any contemplated assignments which have not yet become effective), and
(C) immediately after giving effect to all assignments which have not yet become
effective, the Assignor's Commitment Percentage will be sufficient to give
effect to this Assignment and Assumption Agreement, (ii) makes no representation
or
- 1 -
<PAGE>
warranty, express or implied, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any of the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant thereto, other than that it is the legal and beneficial owner
of the interest being assigned by it hereunder free and clear of any claim or
encumbrance; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or any
of its Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations, or the performance or observance by the
Borrowers or any of its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations of any of its
obligations under the Credit Agreement or any of the other Loan Documents or any
other instrument or document delivered or executed pursuant thereto; and (iv)
has delivered to the Agent for return to the Borrowers the Note(s) delivered to
it under the Credit Agreement and requests that the Borrower exchange such
Note(s) for new Note(s) payable to each of the Assignor and Assignee as follows:
Note Payable to
the Order of: Amount of Note
------------- --------------
[Name of Assignor] [($________)]
[Name of Assignee] [($________)]
3. Assignee's Representations. The Assignee (i) represents and warrants
that (A) it is duly and legally authorized to enter into this Assignment and
Assumption Agreement, (B) the execution, delivery and performance of this
Assignment and Assumption Agreement do not conflict with any provision of law or
of the charter or by-laws of the Assignee, or of any agreement binding on the
Assignee, (C) all acts, conditions and things required to be done and performed
and to have occurred prior to the execution, delivery and performance of this
Assignment and Assumption Agreement, and to render the same the legal, valid and
binding obligation of the Assignee, enforceable against it in accordance with
its terms, have been done and performed and have occurred in due and strict
compliance with all applicable laws; (ii) confirms that it has received a copy
of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to ss.ss.6.4 and 7.4 thereof and such other
documents And information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption Agreement;
(iii) agrees that it will, independently and without reliance upon the Assignor,
the Agent or any other Lenders and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iv) represents and
warrants that it is an Eligible Assignee; (v) appoints and
- 2 -
<PAGE>
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (vi) agrees that it will perform in accordance
with their terms all the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Lender; and (vii) acknowledges that it
has made arrangements with the Assignor satisfactory to the Assignee with
respect to its pro rata share of Letter of Credit Fees in respect of outstanding
Letters of Credit.
4. Effective Date. The effective date for this Assignment and
Assumption Agreement shall be _______ ___, 19__ (the "Effective Date").
Following the execution of this Assignment and Assumption Agreement, each party
hereto shall deliver its duly executed counterpart hereof to the Agent for
acceptance by the Agent and recording in the Register by the Agent.
5. Rights Under Credit Agreement. Upon such acceptance and recording,
from and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Assumption
Agreement, have the rights and obligations of a Lender thereunder, and (ii) the
Assignor shall, with respect to that portion of its interest under the Credit
Agreement assigned hereunder, relinquish its rights and be released from its
obligations under the Credit Agreement; provided, however, that the Assignor
shall retain its rights to be indemnified pursuant to ss.16 of the Credit
Agreement with respect to any claims or actions arising prior to the Effective
Date.
6. Payments. Upon such acceptance of this Assignment and Assumption
Agreement by the Agent and such recording, from and after the Effective Date,
the Agent shall make all payments in respect of the rights and interests
assigned hereby (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and the Assignee shall make any
appropriate adjustments in payments for periods prior to the Effective Date by
the Agent or with respect to the making of this assignment directly between
themselves.
7. Governing Law. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT IS INTENDED
TO TAKE EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO
CONFLICT OF LAWS).
8. Counterparts. This Assignment and Assumption Agreement may be
executed in any number of counterparts which shall together constitute but one
and the same agreement.
- 3 -
<PAGE>
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Assumption Agreement to be executed
on its behalf by its officer thereunto duly authorized, as of the date first
above written.
ASSIGNOR:
_____________________________________________________
By:__________________________________________________
Title:
ASSIGNEE:
_____________________________________________________
By:__________________________________________________
Title:
- 4 -
<PAGE>
EXHIBIT G
FORM OF COMPETITIVE BID NOTE
$________________ _____________ ___, 19___
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the Subsidiaries of CRLP party hereto
(collectively, the "Borrowers"), jointly and severally promise to pay to the
order of __________________ (the "Lender") at the Agent's Head Office (as
defined in the Credit Agreement referred to below):
(a) on [insert applicable maturity, which is last day of
Interest Period] (the "Bid Maturity Date") the principal amount of
________________ DOLLARS ($______________) or, if less, the aggregate
unpaid principal amount of Competitive Bid Loans advanced by the Lender
to the Borrowers pursuant to the Revolving Credit Agreement dated as of
August __, 1997 (as amended and in effect from time to time, the
"Credit Agreement"), among the Borrowers, the Lender, Fleet National
Bank, as Agent, and other parties thereto;
(b) the principal outstanding hereunder from time to time at
the times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time
outstanding from the Closing Date under the Credit Agreement through
and including the Bid Maturity Date hereof at the times and at the rate
of ______%.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof pursuant to the Credit Agreement or by operation of law is
entitled to the benefits of the Credit Agreement and the other Loan Documents,
and may enforce the agreements of the Borrowers contained therein, and any
holder hereof may exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance with the respective
terms thereof. All capitalized terms used in this Note and not otherwise defined
herein shall have the same meanings herein as in the Credit Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Competitive Bid Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Competitive Bid Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Competitive Bid Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records, maintained by the Lender with respect to any
Competitive Bid Loans shall be prima facie evidence of the principal amount
thereof owing and unpaid to the Lender, but the failure to record, or any error
in so recording, any such amount on any such grid, continuation or other record
shall not limit or otherwise affect the obligation of the
- 1 -
<PAGE>
Borrowers hereunder or under the Credit Agreement to make payments of principal
of and interest on this Note when due to the extent of the unpaid principal and
interest amount as of any date of determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
- 2 -
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Competitive Bid
Note to be signed in its name and its seal to be impressed thereon by its duly
authorized officer as of the day and year first above written.
[Corporate Seal]
CALI REALTY, L.P.
By: Cali Realty Corporation, its
General Partner
By:_____________________________________________
Name:
Title:
[OTHER BORROWERS]
- 3 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
</TABLE>
- 4 -
<PAGE>
EXHIBIT H
FORM OF COMPETITIVE BID QUOTE REQUEST
Fleet National Bank, as Agent Fleet National Bank, as Agent
111 Westminster Street, RI-MO-215 Agency Services
Providence, Rhode Island 02902 Fleet Corporate Administration
Mail Stop: MAOFDO5P
One Federal Street
Boston, MA 02110
Attn: Mark E. Dalton, Attn: Timothy J. Callahan,
Vice President Senior Loan Administrator
Re: Competitive Bid Quote Request
This Competitive Bid Quote Request is given in accordance with Section
2A.3 of the Revolving Credit Agreement (as amended or modified from time to
time, the "Credit Agreement") dated as of August __, 1997 by and among (a) Cali
Realty, L.P. and its subsidiaries which are parties thereto from time to time
(collectively, the "Borrowers" and each, individually, a "Borrower"), (b) Fleet
National Bank and the other lending institutions listed on Schedule 1.2 thereto
(collectively, the "Lenders") and (c) Fleet National Bank as agent for the
Lenders (the "Agent"). Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
Cali Realty, L.P., as the Borrower Representative, hereby requests that
the Agent obtain quotes for a [LIBOR][Absolute] Competitive Bid Loan based upon
the following:
1. The requested Drawdown Date of the Competitive Bid Loan shall
be __________________, 19___.1/
2. The aggregate amount of the Competitive Bid Loans shall be
$_______________.2/
3. The duration of the Interest Period applicable hereto shall be
_______________.3/
Very truly yours,
CALI REALTY, L.P.
By: Cali Realty Corporation, its General Partner
_________________________________________________
- ------------
1/ The date must be a Business Day.
2/ This amount shall be $5,000,000 or larger multiple of $1,000,000.
3/ The stated Interest Period is subject to the provisions of the
definition of Interest Period.
<PAGE>
EXHIBIT I
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
_______________, 19___
[Name of Lender]
[Address]
Attn: ____________________
Re: Invitation for Competitive Bid Quotes
Reference is hereby made to that certain Revolving Credit Agreement (as
amended and in effect from time to time, the "Credit Agreement") dated as of
August __, 1997 by and among (a) Cali Realty, L.P. and its subsidiaries which
are parties thereto from time to time (collectively, the "Borrowers" and each,
individually, a "Borrower"), (b) Fleet National Bank and the other lending
institutions listed on Schedule 1.2 thereto (collectively, the "Lenders") and
(c) Fleet National Bank as agent for the Lenders (the "Agent"). Capitalized
terms which are used herein without definition and which are defined in the
Credit Agreement shall have the same meanings herein as in the Credit Agreement.
Pursuant to ss.2A.3 of the Credit Agreement, you are invited to submit
a competitive bid quote to the Borrowers for the following proposed Competitive
Bid Loan(s):
================================================================================
REQUESTED DRAWDOWN DATE PRINCIPAL AMOUNT INTEREST PERIOD
================================================================================
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
Such Competitive Bid Quotes should specify a Competitive Bid Margin in
the case of a requested LIBOR Competitive Bid Loan, or a Competitive Bid Rate in
the case of a requested Absolute Competitive Bid Loan.
All Competitive Bid Quotes must be submitted to the Agent by telex or
facsimile transmission at its offices as specified in or pursuant to ss.19 of
the Credit Agreement not later than (a) 2:00 p.m. (New York City time) on the
fourth LIBOR Business Day prior to the proposed Drawdown Date, in the case of a
LIBOR Competitive Bid Loan, or (b) 10:00 a.m. (New York City time) on the
proposed Drawdown Date in the case of an Absolute Competitive Bid Loan.4/ Quotes
received after these deadlines will not be forwarded to the Borrowers.
- -----------
4/ The Agent may submit Competitive Bid Quotes in its capacity as a Lender
only if submitted to the Borrowers not later than (a) one hour prior to
the deadline for the other Lenders, in the case of a LIBOR Competitive
Bid Loan or (b) 15 minutes prior to the deadline for the other Lenders,
in the case of an Absolute Competitive Bid Loan.
- 1 -
<PAGE>
Submitted bids must be for $1,000,000 or a larger multiple of $500,000
and may not exceed the aggregate principal amount of Competitive Bid Loans for
which offers were requested. All Competitive Bid Quotes should be submitted in
substantially the form of Exhibit J to the Credit Agreement. Please follow-up
your submitted written bids with telephone verification to confirm receipt.
Very truly yours,
FLEET NATIONAL BANK, AS AGENT
By: __________________________________
Name:
Title:
- 2 -
<PAGE>
EXHIBIT J
FORM OF COMPETITIVE BID QUOTE
Fleet National Bank, as Agent Fleet National Bank, as Agent
111 Westminster Street, RI-MO-215 Agency Services
Providence, Rhode Island 02902 Fleet Corporate Administration
Mail Stop: MAOFDO5P
One Federal Street
Boston, MA 02110
Attn: Mark E. Dalton, Attn: Timothy J. Callahan,
Vice President Senior Loan Administrator
Re: Competitive Bid Quote to Cali Realty, L.P.
This Competitive Bid Quote is given in accordance with Section 2A.5 of
the Revolving Credit Agreement (as amended or modified from time to time, the
"Credit Agreement") dated as of August __, 1997 by and among (a) Cali Realty,
L.P. and its subsidiaries which are parties thereto from time to time
(collectively, the "Borrowers" and each, individually, a "Borrower"), (b) Fleet
National Bank and the other lending institutions listed on Schedule 1.2 thereto
(collectively, the "Lenders") and (c) Fleet National Bank as agent for the
Lenders (the "Agent"). Capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement.
In response to the Competitive Bid Quote Request of the Borrowers dated
_________________, 19___, we hereby make the following Competitive Bid Quote on
the following terms:
1. Quoting Lender: _____________________
2. Person to contact at Quoting Lender: _____________________
3. Drawdown Date:5/ _____________________
4. We hereby offer to make Competitive Bid Loan(s) in the following
maximum principal amounts for the following Interest Period(s) and at the
following rates:
Maximum Competitive Competitive
Principal Amount 6/ Interest Period 7/ Bid Margin 8/ Bid Rate 9/
- ------------------- ------------------ ------------- -----------
- ----------
5/ As specified in the related Competitive Bid Quote Request.
6/ The principal amount bid for each Interest Period may not exceed the
principal amount requested. Competitive Bid Quotes must be made for at
least $1,000,000 or a larger multiple of $500,000, and in accord with
the other provisions of ss.2A.5(b)(ii) of the Credit Agreement.
7/ As specified in the related Competitive Bid Quote Request.
8/ To be specified in the case of a LIBOR Competitive Bid Loan, in accord
with the provisions of ss.2A.5(b)(iv) of the Credit Agreement.
9/ To be specified in the case of an Absolute Competitive Bid Loan, in
accord with the provisions of ss.2A.5(b)(v) of the Credit Agreement.
- 1 -
<PAGE>
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Competitive Bid Loan(s) for which any
offer(s) [is][are] accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
By: ____________________________
Name:
Title:
Dated: __________________
- 2 -
<PAGE>
EXHIBIT K
FORM OF NOTICE OF ACCEPTANCE OR
NON-ACCEPTANCE OF COMPETITIVE BID QUOTE(S)
CALI REALTY, L.P.
Under ss.2A.7 of the Revolving Credit Agreement (the "Credit Agreement")
dated as of August __, 1997
Date of Competitive Bid Loan Quote: ________________________
Type of Competitive Bid Loan Requested: [LIBOR][Absolute]
Requested Drawdown Date: ________________________
Cali Realty, L.P., as Borrower Representative, hereby ACCEPTS the following
Competitive Bid Quote(s):
================================================================================
Competitive Bid
Principal Rate/Competitive
Amount of Quote Interest Period(s) Bid Margin Lender
================================================================================
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
Cali Realty, L.P., as Borrower Representative, hereby REJECTS the following
Competitive Bid Quote(s):
================================================================================
Competitive Bid
Principal Rate/Competitive
Amount of Quote Interest Period(s) Bid Margin Lender
================================================================================
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
The accepted and rejected Competitive Bid Quotes described above
constitute all Competitive Bid Quotes submitted by the Lenders in accordance
with ss.2A.5 of the Credit Agreement.
CALI REALTY, L.P.
By: Cali Realty Corporation,
its General Partner
By: _________________________________
Name:
Title:
Date: _________________
<PAGE>
Exhibit L
FORM OF NOTICE OF CONTINUATION/CONVERSION
_____________________, 199___
Fleet National Bank, as Agent Fleet National Bank, as Agent
111 Westminster Street, RI-MO-215 Agency Services
Providence, Rhode Island 02902 Fleet Corporate Administration
Mail Stop: MAOFDO5P
One Federal Street
Boston, MA 02110
Attn: Mark E. Dalton, Attn: Timothy J. Callahan,
Vice President Senior Loan Administrator
Ladies and Gentlemen:
Reference is made to that certain Revolving Credit Agreement dated as
of August ___, 1997 (such agreement, as it may be or may have been amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms used herein without definition shall have the
respective meanings assigned to those terms in the Credit Agreement) among Cali
Realty, L.P. and certain of its affiliates as borrowers, the institutions from
time to time party thereto as Lenders and Fleet National Bank, as Agent. The
Borrowers hereby give you notice pursuant to Section 2.6 of the Credit Agreement
for the Revolving Credit Loans specified below that they elect to:
1. [Continue as Revolving Credit LIBOR Rate Loans $____________ in
aggregate principal amount of the outstanding Revolving Credit LIBOR Rate Loans,
the current Interest Period of which ends on ______________, 199__].
2. [Convert to Prime Rate Loans] [Revolving Credit LIBOR Rate Loans]
$______________ in aggregate principal amount of the outstanding [Revolving
Credit LIBOR Rate Loans], [Prime Rate Loans] the current Interest Period of
which ends on _____________].
3. The date for such [continuation] [and] [conversion] shall be
_______________.
4. [The Interest Period for such continued or converted (as applicable)
Revolving Credit LIBOR Rate Loans is requested to be [a _________________ month
period].
- 1 -
<PAGE>
The Borrower Representative hereby certifies to the Agent and each of
the Lenders on behalf of each Borrower that on the date hereof there are no
prohibitions under the Credit Agreement to the requested
conversion/continuation, no such prohibitions will exist on the date of the
requested conversion/continuation, the requested [conversion] [continuation] is
in accordance with the provisions of ss.2.6 of the Credit Agreement.
Executed as of this _____ day of ________________, 199___.
CALI REALTY CORPORATION,
as Borrower Representative
By:______________________________________________
Its:
[Chief Financial Officer/Treasurer/
Executive Vice President/
Controller/President]
- 2 -
<PAGE>
REVOLVING CREDIT NOTE
$50,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of FLEET NATIONAL BANK, a national banking association (the "Lender")
at the Agent's Head Office (as defined in the Credit Agreement defined below):
(a) prior to or on the Maturity Date the principal amount of
Fifty Million Dollars ($50,000,000) or, if less, the aggregate unpaid
principal amount of Revolving Credit Loans advanced by the Lender to
the Borrowers pursuant to the Revolving Credit Agreement dated as of
______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6, 1997 (as
amended and in effect from time to time, the "Credit Agreement"), among
the Borrowers, the Lender, Fleet National Bank, as Agent, and other
parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records,
- 1 -
<PAGE>
reflecting the making of such Revolving Credit Loan or (as the case may be) the
receipt of such payment. The outstanding amount of the Revolving Credit Loans
set forth on the grid attached to this Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by the
Lender with respect to any Revolving Credit Loans shall be prima facie evidence
of the principal amount thereof owing and unpaid to the Lender, but the failure
to record, or any error in so recording, any such amount on any such grid,
continuation or other record shall not limit or otherwise affect the obligation
of the Borrowers hereunder or under the Credit Agreement to make payments of
principal of and interest on this Note when due to the extent of the unpaid
principal and interest amount as of any date of determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$42,500,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of BANKERS TRUST COMPANY, a national banking association (the
"Lender") at the Agent's Head Office (as defined in the Credit Agreement defined
below):
(a) prior to or on the Maturity Date the principal amount of
Forty-Two Million Five Hundred Thousand Dollars ($42,500,000) or, if
less, the aggregate unpaid principal amount of Revolving Credit Loans
advanced by the Lender to the Borrowers pursuant to the Revolving
Credit Agreement dated as of ______ ___, 1997" \@ "MMMM d, yyyy" \*
charformat August 6, 1997 (as amended and in effect from time to time,
the "Credit Agreement"), among the Borrowers, the Lender, Fleet
National Bank, as Agent, and other parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$35,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national
banking association (the "Lender") at the Agent's Head Office (as defined in the
Credit Agreement defined below):
(a) prior to or on the Maturity Date the principal amount of
Thirty-Five Million Dollars ($35,000,000) or, if less, the aggregate
unpaid principal amount of Revolving Credit Loans advanced by the
Lender to the Borrowers pursuant to the Revolving Credit Agreement
dated as of ______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6,
1997 (as amended and in effect from time to time, the "Credit
Agreement"), among the Borrowers, the Lender, Fleet National Bank, as
Agent, and other parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$42,500,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of THE CHASE MANHATTAN BANK (the "Lender") at the Agent's Head Office
(as defined in the Credit Agreement defined below):
(a) prior to or on the Maturity Date the principal amount of
Forty-Two Million Five Hundred Thousand Dollars ($42,500,000) or, if
less, the aggregate unpaid principal amount of Revolving Credit Loans
advanced by the Lender to the Borrowers pursuant to the Revolving
Credit Agreement dated as of ______ ___, 1997" \@ "MMMM d, yyyy" \*
charformat August 6, 1997 (as amended and in effect from time to time,
the "Credit Agreement"), among the Borrowers, the Lender, Fleet
National Bank, as Agent, and other parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$20,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of CRESTAR BANK, a banking corporation organized under the laws of the
Commonwealth of Virginia (the "Lender") at the Agent's Head Office (as defined
in the Credit Agreement defined below):
(a) prior to or on the Maturity Date the principal amount of
Twenty Million Dollars ($20,000,000) or, if less, the aggregate unpaid
principal amount of Revolving Credit Loans advanced by the Lender to
the Borrowers pursuant to the Revolving Credit Agreement dated as of
______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6, 1997 (as
amended and in effect from time to time, the "Credit Agreement"), among
the Borrowers, the Lender, Fleet National Bank, as Agent, and other
parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$35,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of COMMERZBANK AG, NEW YORK BRANCH, a banking association organized
under the laws of the Republic of Germany (the "Lender") at the Agent's Head
Office (as defined in the Credit Agreement defined below):
(a) prior to or on the Maturity Date the principal amount of
Thirty-Five Million Dollars ($35,000,000) or, if less, the aggregate
unpaid principal amount of Revolving Credit Loans advanced by the
Lender to the Borrowers pursuant to the Revolving Credit Agreement
dated as of ______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6,
1997 (as amended and in effect from time to time, the "Credit
Agreement"), among the Borrowers, the Lender, Fleet National Bank, as
Agent, and other parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$35,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of THE FIRST NATIONAL BANK OF CHICAGO, a national banking association
(the "Lender") at the Agent's Head Office (as defined in the Credit Agreement
defined below):
(a) prior to or on the Maturity Date the principal amount of
Thirty-Five Million Dollars ($35,000,000) or, if less, the aggregate
unpaid principal amount of Revolving Credit Loans advanced by the
Lender to the Borrowers pursuant to the Revolving Credit Agreement
dated as of ______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6,
1997 (as amended and in effect from time to time, the "Credit
Agreement"), among the Borrowers, the Lender, Fleet National Bank, as
Agent, and other parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$25,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of KEYBANK, NATIONAL ASSOCIATION, a national banking association (the
"Lender") at the Agent's Head Office (as defined in the Credit Agreement defined
below):
(a) prior to or on the Maturity Date the principal amount of
Twenty-Five Million Dollars ($25,000,000) or, if less, the aggregate
unpaid principal amount of Revolving Credit Loans advanced by the
Lender to the Borrowers pursuant to the Revolving Credit Agreement
dated as of ______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6,
1997 (as amended and in effect from time to time, the "Credit
Agreement"), among the Borrowers, the Lender, Fleet National Bank, as
Agent, and other parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$15,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of KREDEITBANK, N.V. (the "Lender") at the Agent's Head Office (as
defined in the Credit Agreement defined below):
(a) prior to or on the Maturity Date the principal amount of
Fifteen Million Dollars ($15,000,000) or, if less, the aggregate unpaid
principal amount of Revolving Credit Loans advanced by the Lender to
the Borrowers pursuant to the Revolving Credit Agreement dated as of
______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6, 1997 (as
amended and in effect from time to time, the "Credit Agreement"), among
the Borrowers, the Lender, Fleet National Bank, as Agent, and other
parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$35,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of PNC BANK, NATIONAL ASSOCIATION, a national banking association (the
"Lender") at the Agent's Head Office (as defined in the Credit Agreement defined
below):
(a) prior to or on the Maturity Date the principal amount of
Thirty-Five Million Dollars ($35,000,000) or, if less, the aggregate
unpaid principal amount of Revolving Credit Loans advanced by the
Lender to the Borrowers pursuant to the Revolving Credit Agreement
dated as of ______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6,
1997 (as amended and in effect from time to time, the "Credit
Agreement"), among the Borrowers, the Lender, Fleet National Bank, as
Agent, and other parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$20,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of MELLON BANK, N.A., a national banking association (the "Lender") at
the Agent's Head Office (as defined in the Credit Agreement defined below):
(a) prior to or on the Maturity Date the principal amount of
Twenty Million Dollars ($20,000,000) or, if less, the aggregate unpaid
principal amount of Revolving Credit Loans advanced by the Lender to
the Borrowers pursuant to the Revolving Credit Agreement dated as of
______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6, 1997 (as
amended and in effect from time to time, the "Credit Agreement"), among
the Borrowers, the Lender, Fleet National Bank, as Agent, and other
parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$20,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of SIGNET BANK, a banking corporation organized under the laws of the
Commonwealth of Virginia (the "Lender") at the Agent's Head Office (as defined
in the Credit Agreement defined below):
(a) prior to or on the Maturity Date the principal amount of
Twenty Million Dollars ($20,000,000) or, if less, the aggregate unpaid
principal amount of Revolving Credit Loans advanced by the Lender to
the Borrowers pursuant to the Revolving Credit Agreement dated as of
______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6, 1997 (as
amended and in effect from time to time, the "Credit Agreement"), among
the Borrowers, the Lender, Fleet National Bank, as Agent, and other
parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<PAGE>
REVOLVING CREDIT NOTE
$25,000,000 August 6, 1997
FOR VALUE RECEIVED, the undersigned CALI REALTY, L.P., a Delaware
limited partnership ("CRLP"), and the undersigned Subsidiaries of CRLP
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
the order of SUMMIT BANK, a banking corporation organized under the laws of the
State of New Jersey (the "Lender") at the Agent's Head Office (as defined in the
Credit Agreement defined below):
(a) prior to or on the Maturity Date the principal amount of
Twenty-Five Million Dollars ($25,000,000) or, if less, the aggregate
unpaid principal amount of Revolving Credit Loans advanced by the
Lender to the Borrowers pursuant to the Revolving Credit Agreement
dated as of ______ ___, 1997" \@ "MMMM d, yyyy" \* charformat August 6,
1997 (as amended and in effect from time to time, the "Credit
Agreement"), among the Borrowers, the Lender, Fleet National Bank, as
Agent, and other parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rate provided in the Credit
Agreement.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records,
- 1 -
<PAGE>
maintained by the Lender with respect to any Revolving Credit Loans shall be
prima facie evidence of the principal amount thereof owing and unpaid to the
Lender, but the failure to record, or any error in so recording, any such amount
on any such grid, continuation or other record shall not limit or otherwise
affect the obligation of the Borrowers hereunder or under the Credit Agreement
to make payments of principal of and interest on this Note when due to the
extent of the unpaid principal and interest amount as of any date of
determination.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF
THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.19 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
- 2 -
<PAGE>
This Note shall be deemed to take effect as a sealed instrument under
the laws of the State of New York.
[Remainder of page left blank intentionally]
- 3 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be sealed and signed in its partnership name by its duly authorized
officer as of the day and year first above written.
CALI REALTY, L.P.
WITNESS: By: Cali Realty Corporation, its
general partner
_____________________________ By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CENTURY PLAZA ASSOCIATES
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
By: Cali Property Holdings II, L.P.,
its general partner
By: Cali Sub IV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
600 PARSIPPANY ASSOCIATES, L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 4 -
<PAGE>
400 RELLA REALTY ASSOCIATES, L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
VAUGHN PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MONMOUTH/ATLANTIC REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
JUMPING BROOK REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 5 -
<PAGE>
HORIZON CENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
COMMERCENTER REALTY ASSOCIATES L.P.
By: Cali Sub VII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
400 PRINCETON ASSOCIATES L.P.
By: Cali Sub V, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 6 -
<PAGE>
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
300 TICE REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
BRIDGE PLAZA REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 7 -
<PAGE>
CALI AIRPORT REALTY ASSOCIATES, L.P.
By: Cali Sub VIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CROSS WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MID-WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
SO. WESTCHESTER REALTY ASSOCIATES L.P.
By: Cali Sub VI, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 8 -
<PAGE>
WHITE PLAINS REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
MARTINE AVENUE REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI STAMFORD REALTY ASSOCIATES L.P.
D/B/A RM STAMFORD REALTY ASSOCIATES
By: Cali Sub XII, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
CALI PENNSYLVANIA REALTY ASSOCIATES, L.P.
By: Cali Sub XV, Inc., its general partner
By: ________________________________
Name: Barry Lefkowitz
Title: Vice President
- 9 -
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
==========================================================================================================
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
</TABLE>
- 10 -
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<CASH> 14,308
<SECURITIES> 0
<RECEIVABLES> 4,121
<ALLOWANCES> 574
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 1,391,228
<DEPRECIATION> 83,863
<TOTAL-ASSETS> 1,373,692
<CURRENT-LIABILITIES> 0
<BONDS> 553,961
0
0
<COMMON> 366
<OTHER-SE> 701,342
<TOTAL-LIABILITY-AND-EQUITY> 1,373,692
<SALES> 0
<TOTAL-REVENUES> 112,697
<CGS> 0
<TOTAL-COSTS> 50,486
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 17,152
<INCOME-PRETAX> 38,132
<INCOME-TAX> 0
<INCOME-CONTINUING> 34,484
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 34,484
<EPS-PRIMARY> 0.95
<EPS-DILUTED> 0.95
</TABLE>
