Ex. 10.4
CONSOLIDATED, AMENDED AND RESTATED MORTGAGE NOTE
$60,000,000.00 New York, New York
March 1, 1999
WHEREAS, TOWER REALTY OPERATING PARTNERSHIP, L.P. (the "Borrower") has
acquired title to the Premises (as defined in the Mortgage defined and described
in the Loan Agreement (defined below)) subject to the indebtedness evidenced by
the notes described in Exhibit A attached hereto and made a part hereof by this
reference, (each, an "Existing Mortgage Note" and collectively, the "Existing
Mortgage Notes"; and the indebtedness evidenced thereby, in the aggregate, the
"Existing Mortgage Loan");
WHEREAS, the Banks (as hereinafter defined) have acquired the Existing
Mortgage Loan, the interests of the Banks therein being more particularly
described in the Mortgage Loan Agreement (the "Loan Agreement"), of even date
herewith, among the Borrower, Fleet National Bank, as administrative agent (the
"Administrative Agent"), Xxxxxxx Xxxxx & Co., as syndication agent and arranger
(the "Syndication Agent and Arranger"), NationsBank, N.A., as documentation
agent (the "Documentation Agent") and the banks listed on the signature pages
thereof (the "Banks");
WHEREAS, the Borrower, the Banks, the Administrative Agent, the Syndication
Agent and Arranger and the Documentation Agent desire to consolidate, amend and
restate the terms by which the Existing Mortgage Loan is governed as set forth
in this Consolidated, Amended and Restated Mortgage Note (this "Restated
Mortgage Note"; and the indebtedness evidenced by this Restated Mortgage Note,
the "Restated Mortgage Loan");
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
A. the Borrower, the Banks, the Administrative Agent, the
Syndication Agent and Arranger and
the Documentation Agent acknowledge and agree that the Existing Mortgage
Notes, as amended and restated hereby, constitute a single indebtedness in
the current principal amount of $60,000,000.00.
B. From and after the date hereof, the terms, covenants and provisions
of the Existing Mortgage Notes are hereby modified, consolidated, amended
and restated in their entirety so that henceforth the terms, covenants and
provisions of the Existing Mortgage Notes shall be read as herein set
forth, and the Existing Mortgage Notes, as so modified, consolidated,
amended and restated are hereby ratified and confirmed in all respects by
the Borrower.
C. Neither this Restated Mortgage Note nor anything contained herein
shall be construed as a substitution or novation of the Borrower's
indebtedness to the Banks under the Existing Mortgage Notes, which
indebtedness shall remain outstanding under the Existing Mortgage Notes as
the same are confirmed, modified, consolidated, amended and restated in
their entirety by this Restated Mortgage Note.
D. When used herein, all capitalized terms not otherwise defined
herein shall have the respective meanings ascribed to them in the Loan
Agreement.
For value received, the Borrower assumes the obligation to pay the
indebtedness under the Existing Mortgage Loan evidenced by the Existing Mortgage
Notes, agrees to the amendment and restatement thereof hereby, and promises to
pay to the order of each of the Banks, pro rata in accordance with its
respective interests as set forth in the Loan Agreement, for the account of its
Applicable Lending Office, the unpaid principal amount of the Restated Mortgage
Loan made by such Bank to the Borrower pursuant to the Loan Agreement on the
Maturity Date. The Borrower promises to pay interest on the unpaid principal
amount of the Restated Mortgage Loan on the dates and at the rate or rates
provided for in the Loan Agreement. All such payments of principal and interest
shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Fleet National Bank.
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The Restated Mortgage Loan made by the Banks, the type and interest periods
thereof from time to time and all repayments of the principal thereof shall be
recorded by the Administrative Agent and, if the Administrative Agent so elects
in connection with any transfer or enforcement hereof, appropriate notations to
evidence the foregoing information with respect to such Restated Mortgage Loan
may be endorsed by the Administrative Agent on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Administrative Agent to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Loan Agreement.
This note is the Restated Mortgage Note referred to in the Loan Agreement.
Reference is hereby made to the Loan Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
All obligations, covenants and agreements contained or evidenced in
this Restated Mortgage Note, shall be fully recourse to Borrower and each and
every asset of Borrower. Notwithstanding the foregoing, no recourse under or
upon any obligation, covenant, agreement contained in this Restated Mortgage
Note shall be had against any Non-Recourse Party and no such Non-Recourse Party
shall be personally liable for payment of the Restated Mortgage Loan or other
amounts due in respect thereof (all such liability being expressly waived and
released by each Bank and the Administrative Agent).
TOWER REALTY OPERATING PARTNER-
SHIP, L.P.
By: TOWER REALTY TRUST, INC.,
its sole general partner
By/s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President
Finance & Administration
and Chief Financial Officer
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Exhibit A
(Existing Mortgage Notes)
The Consolidated, Amended and Restated Mortgage Note in the original
principal amount of $100,000,000, dated as of December 31, 1997, by 000
0xx Xxxxxx, X.X., as maker, in favor of Credit Suisse First Boston
Mortgage Capital LLC as payee, as endorsed to Norwest Bank Minnesota,
National Association, as trustee under the Pooling and Servicing
Agreement dated June 12, 1998 for the Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-FL1, together with the notes that are
consolidated, amended and restated thereby (collectively, the
"Existing Notes")
