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EXHIBIT 10.10
October 19, 1994
MLCP Associates Limited Partnership
2 Eves Drive
Marlton, New Jersey 08053
Re: $6,500,000 Loan from Sun Life Assurance Company of
Canada (U.S.) ("Loan")
Dear Sir or Madam:
This letter sets forth certain agreements between Sun Life Assurance
Company of Canada (U.S.) ("Mortgagee") and MLCP Associates Limited Partnership
("Mortgagor"), regarding the release by Mortgagee of condemnation award
proceeds following a taking or condemnation and insurance proceeds following a
casualty. Capitalized terms used herein have the same meaning as set forth in
the Mortgage and Security Agreement of even date herewith from MLCP Associates
Limited Partnership to us (the "Mortgage").
1. (a) Notwithstanding anything to the contrary set forth in
Section 8 of the Mortgage, Mortgagee agrees that (provided no Event of Default
has occurred under the Mortgage or under the Note or any other document given
as collateral security for the Note, and subject to the provisions of
subsection (c) below) in the event of a con demnation or taking, Mortgagee will
make available to Mortgagor the proceeds received by it for purposes of
restoration of the Mortgaged Property on the following terms and conditions:
(i) prior to the commencement of restoration, the
contracts, contractors, and plans and specifications for the restoration shall
have been approved by Mortgagee, and Mortgagee, at its option, shall be
provided with a surety bond insuring satisfactory completion of the
restoration, such insurance and bond to be in form acceptable to Mortgagee;
(ii) at the time of any disbursement Mortgagor
shall not be in default hereunder, no mechanics' or materialmen's liens shall
have been filed and remain undischarged (or unbonded if contested in good
faith) and a satisfactory bringdown of title insurance shall be delivered to
Mortgagee;
(iii) disbursements shall be made from time to time
in an amount not exceeding the cost of the work completed since the last
disbursement, upon approval by Mortgagee's engineer and receipt of satisfactory
evidence of the stage of completion and of performance of the work in good and
workmanlike manner in accordance with the contracts, plans and specifications;
(iv) the restoration fund shall be deposited in an
escrow account with Mortgagee; and
(v) such restoration and the disbursement of the
restoration fund shall be otherwise effected in accordance with the provisions
of Mortgagee's standard building loan agreement.
(b) Prior to the commencement of restoration, or at any
time thereafter, if the estimated cost of restoration, as reasonably determined
by Mortgagee, exceeds the amount of proceeds paid on account of the cost of
such restoration, the amount of such excess shall be paid by Mortgagor to
Mortgagee in cash or by means of other security satisfactory to Mortgagee, and
shall be added to the restoration fund.
(c) If no restoration is necessary, or if the Mortgaged
Property cannot be restored to a condition functionally similar to its
condition prior to the taking within one hundred eighty (180) days, or if any
material Lease is terminated by the tenant as a result of such condemnation,
Mortgagee, at its sole option, shall apply all or part of the proceeds to
reduce the outstanding principal indebtedness secured hereby, and shall pay
over to Mortgagor the balance not so applied (if any).
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(d) If, prior to the receipt of the proceeds by
Mortgagee, the Mortgaged Property shall have been sold on foreclosure of the
Mortgage, Mortgagee shall have the right to receive the proceeds to the extent
of:
(i) any deficiency found to be due to Mortgagee
in connection with the foreclosure sale, with interest thereon, at the Default
Rate set forth in the Note, and
(ii) reasonable counsel fees, costs and
disbursements incurred by Mortgagee in connection with the collection of the
proceeds.
(e) If the amount of the initial award of damages for the
total condemnation is insufficient to pay in full the indebtedness secured
hereby with interest and other appropriate charges, Mortgagee shall have the
right to prosecute to final determination or settlement an appeal or other
appropriate proceedings in the name of Mortgagee or Mortgagor, for which
Mortgagee is hereby appointed irrevocably as attorney-in-fact for Mortgagor.
In that event, the reasonable expenses of the proceedings, including reasonable
counsel fees, shall be paid first out of the proceeds, and only the excess, if
any, paid to the Mortgagee shall be credited against the amounts due under this
Mortgage.
(f) Nothing herein shall limit the rights otherwise
available to Mortgagee, at law or in equity, including the right to intervene
as a party to any condemnation proceedings.
2. (a) Notwithstanding anything to the contrary set forth in
Section 10 of the Mortgage, Mortgagee agrees that (provided that no Event of
Default has occurred under the Mortgage or under the Note or any other document
given as collateral security for the Note, and provided that the Mortgaged
Property can, in Mortgagee's opinion, be restored to its condition on the date
hereof within 180 days following the casualty) in the event of such loss or
damage or casualty, Mortgagee will make available the proceeds received by it
for purposes of restoration of the Mortgaged Property on the following terms
and conditions:
(i) prior to the commencement of restoration, the
contracts, contractors, and plans and specifications for the restoration shall
have been approved by Mortgagee, and Mortgagee, at its option, shall be
provided with a surety bond insuring satisfactory completion of the
restoration, such insurance and bond to be in form reasonably acceptable to
Mortgagee;
(ii) at the time of any disbursement Mortgagor
shall not be in default under the Mortgage, no mechanics' or materialmen's
liens shall have been filed and remain undischarged (or unbonded if contested
in good faith) and a satisfactory bringdown of title insurance shall be
delivered to Mortgagee;
(iii) disbursements shall be made from time to time
in an amount not exceeding the cost of the work completed since the last
disbursement, upon approval by Mortgagee's engineer and receipt of satisfactory
evidence of the stage of completion and of performance of the work in good and
workmanlike manner in accordance with the contracts, plans and specifications;
(iv) the restoration fund shall be deposited in an
escrow account with Mortgagee; and
(v) such restoration and the disbursement of the
restoration fund shall be otherwise effected in accordance with the provisions
of Mortgagee's standard building loan agreement.
(b) Prior to the commencement of restoration, or at any
time thereafter, if the estimated cost of restoration, as reasonably determined
by Mortgagee, exceeds the amount of proceeds paid on account of the cost of
such restoration, the amount of such excess shall be paid by Mortgagor to
Mortgagee in cash or by means of other security satisfactory to Mortgagee, and
shall be added to the restoration fund.
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(c) If no restoration is necessary, Mortgagee, at its
sole option, shall apply all or part of the insurance proceeds to reduce the
outstanding principal indebtedness secured hereby, and shall pay over to
Mortgagor the balance not so applied (if any).
Please acknowledge your agreement to these terms by executing a copy of this
letter.
SUN LIFE ASSURANCE COMPANY OF
CANADA (U.S.)
By:
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MLCP ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: MLCP General Corporation, a
New Jersey corporation, general partner
By: /s/ Joseph D. Gonnelli
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Joseph D. Gonnelli, President
Attest: /s/ R. Brian Jackson
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R. Brian Jackson, Secretary
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