EXHIBIT 10.61 to FORM 8-K
================================================================================
THIRD MODIFICATION AND ASSUMPTION OF LOANS AGREEMENT
among
XXXXXX XXXXXX COMPANY, LLC
and
XXXX XX REALTY ASSOCIATES L.P.
and
ELMSFORD REALTY ASSOCIATES L.P.
and
TALLEYRAND REALTY ASSOCIATES L.P.
and
CALI MID-WEST REALTY ASSOCIATES L.P.
and
CALI SO. WEST REALTY ASSOCIATES L.P.
and
CALI WP REALTY ASSOCIATES L.P.
and
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
Dated as of
January 31, 1997
================================================================================
TABLE OF CONTENTS
Page
1. Assumption of the First Replacement Notes............................... 13
2. The Second Mortgage..................................................... 15
3. Termination of YIDA Documents........................................... 15
4. INTENTIONALLY OMITTED................................................... 15
5. Recourse Loan........................................................... 15
6. Prepayment.............................................................. 16
7. Non-Recourse............................................................ 17
8. Representations and Warranties of the
Borrowers and the LLC................................................... 20
9. Transfer, Pledge and Assignment of
Company Interests....................................................... 23
10. Partial Releases........................................................ 23
11. Environmental Indemnity................................................. 25
12. RMC Escrow Agreement.................................................... 25
13. Lockbox Account......................................................... 25
14. Letter Agreement........................................................ 25
15. Miscellaneous........................................................... 25
i
SCHEDULES
Schedule I-A Schedule of Original Loan A Notes, Mortgages and Lease
Assignments
Schedule I-B Schedule of Original Loan B Notes, Mortgages and Lease
Assignments
Schedule I-C Schedule of Original Loan C Notes, Mortgages and Lease
Assignments
Schedule I-D Schedule of Original Loan D Notes, Mortgages and Lease
Assignments
Schedule I-E Schedule of Original Loan E Notes, Mortgages and Lease
Assignments
Schedule I-F Schedule of Original Loan F Notes, Bonds, Mortgages and Lease
Assignments
Schedule I-G Schedule of Original Loan G Notes, Mortgages and Lease
Assignments
Schedule I-H Schedule of Original Loan H Notes, Mortgages and Lease
Assignments
Schedule I-I Schedule of Original Notes, Mortgages and Lease Assignment
Schedule II Release Prices and List of Properties Subject to Partial
Release
Exhibit A Loan A Property Description
Exhibit B Loan B Property Description
Exhibit C Loan C Property Description
Exhibit D Loan D Property Description
Exhibit E Loan E Property Description
Exhibit F Loan F Property Description
Exhibit G Loan G Property Description
Exhibit H Loan H Property Description
Exhibit I Loan I Property Description
ii
Exhibit J-1 Form of Amended and Restated First Replacement Mortgage
Exhibit J-2 Form of Amended and Restated First Replacement Assignment of
Leases
Exhibit J-3 Form of Amended and Restated Cross-collateral Mortgage
Exhibit J-4 Form of Amended and Restated Cross-collateral Assignment of
Leases
Exhibit J-5 Form of Consolidation, Spreader and Modification Agreement
Exhibit J-6 Form of Amended and Restated Loan F First Replacement Note
Exhibit K Form of Termination of YIDA Lease
Exhibit L Term Sheet for Recourse Loan
Exhibit M Form of Environmental Indemnity
Exhibit N Form of Termination of RMC Escrow Agreement
Exhibit O Form of Termination of Lock-Box Agreement
Exhibit P Form of Letter Agreement
iii
THIRD MODIFICATION AND ASSUMPTION OF LOANS AGREEMENT
THIS THIRD MODIFICATION AND ASSUMPTION OF LOANS AGREEMENT is made as of
January __, 1997 by and among XXXXXX XXXXXX COMPANY, LLC (the "LLC"), a New York
limited liability company, successor-in-interest to XXXXXX XXXXXX COMPANY, a New
York general partnership (the "Partnership") and having an address at 000
Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, XXXX XX REALTY ASSOCIATES L.P. ("Xxxx
XX"), a New York limited partnership, ELMSFORD REALTY ASSOCIATES L.P. ("Elmsford
Realty"), a New York limited partnership, TALLEYRAND REALTY ASSOCIATES L.P.
("Talleyrand Realty"), a New York limited partnership, CALI MID-WEST REALTY
ASSOCIATES L.P. ("Cali MW"), a New York limited partnership, CALI SO. WEST
REALTY ASSOCIATES L.P. ("Cali SW"), a New York limited partnership, CALI WP
REALTY ASSOCIATES L.P. ("Cali WP"), a New York limited partnership (Xxxx XX,
Elmsford Realty, Talleyrand Realty, Cali MW, Cali SW and Cali WP are hereinafter
sometimes individually referred to as a "Borrower" and collectively referred to
as the "Borrowers"), each of which has an address at c/o Cali Realty
Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, and TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation ("TIAA"),
having an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H T H A T :
WHEREAS, on November 19, 1985, TIAA made a loan to the Partnership in the
original principal amount of $15,400,000, which loan was originally (a)
evidenced by the six notes, as assigned and modified, set forth in Schedule I-A
attached hereto (collectively, the "Original Loan A Note"), and (b) secured by,
among other things, (i) the six mortgages, as assigned, consolidated, spread and
modified, set forth in Schedule I-A attached hereto (collectively, the "Original
Loan A Mortgage"), covering certain land described on Exhibit A attached hereto
and the other property described therein and located in Elmsford, New York (the
"Loan A Property"), and (ii) the assignment of lessor's interest in leases set
forth in Schedule I-A attached hereto (the "Original Loan A Lease Assignment");
WHEREAS, on June 30, 1986, TIAA made a loan to the Partnership in the
original principal amount of $26,000,000, which loan was originally (a)
evidenced by the 24 notes, as assigned and modified, set forth in Schedule I-B
attached hereto (collectively, the "Original Loan B Note"), and (b) secured by,
among other things, (i) the 24 mortgages, as assigned, consolidated, spread and
modified, set forth in Schedule I-B attached hereto (collectively, the "Original
Loan B Mortgage"), covering certain land described on Exhibit B attached hereto
and the other
1
property described therein and located in Elmsford, New York (the "Loan B
Property"), and (ii) the assignment of lessor's interest in leases set forth in
Schedule I-B attached hereto (the "Original Loan B Lease Assignment");
WHEREAS, on June 4, 1986, TIAA made a loan to the Partnership in the
original principal amount of $6,350,000, which loan was originally (a) evidenced
by the note set forth in Schedule I-C attached hereto (the "Original Loan C
Note"), and (b) secured by, among other things, (i) the mortgage set forth in
Schedule I-C attached hereto (the "Original Loan C Mortgage"), covering certain
land described on Exhibit C attached hereto and the other property described
therein and located in Mount Pleasant, New York (the "Loan C Property"), and
(ii) the assignment of lessor's interest in leases set forth in Schedule I-C
attached hereto (the "Original Loan C Lease Assignment");
WHEREAS, on December 9, 1986, TIAA made a loan to the Partnership in the
original principal amount of $93,000,000, which loan was originally (a)
evidenced by the 32 notes, as assigned, consolidated and modified set forth in
Schedule I-D attached hereto (collectively, the "Original Loan D Note"), and (b)
secured by, among other things, (i) the 32 mortgages, as assigned, consolidated,
extended, spread and modified, set forth in Schedule I-D attached hereto
(collectively, the "Original Loan D Mortgage"), covering certain land described
on Exhibit D attached hereto and the other property described therein and
located in Greenburgh, Mount Pleasant, Ossining, White Plains and Yonkers, New
York (the "Loan D Property"), and (ii) the assignment of lessor's interest in
leases set forth in Schedule I-D attached hereto (the "Original Loan D Lease
Assignment");
WHEREAS, on August 11, 1988, TIAA made a loan to the Partnership in the
original principal amount of $30,000,000, which loan was originally (a)
evidenced by the note set forth in Schedule I-E attached hereto (the "Original
Loan E Note"), and (b) secured by, among other things, (i) the mortgage set
forth in Schedule I-E attached hereto (the "Original Loan E Mortgage"), covering
certain land described on Exhibit E attached hereto and the other property
described therein and located in White Plains, New York (the "Loan E Property"),
and (ii) the assignment of lessor's interest in leases set forth in Schedule I-E
attached hereto (the "Original Loan E Lease Assignment");
WHEREAS, on October 12, 1989, TIAA made a loan to the Partnership in the
original principal amount of $10,200,000 and a loan to the City of Yonkers
Industrial Development Agency ("YIDA") in the original principal amount of
$7,000,000, which loans were originally (a) evidenced, in part, by the two notes
issued by the Partnership, as consolidated and modified, set
2
forth in Schedule I-F attached hereto (collectively, the "Original Loan F
Note"), (b) evidenced, in part, by the 1989 Taxable Industrial Development
Revenue Refunding Bond issued by YIDA, as consolidated and modified, set forth
in Schedule I-F attached hereto (the "Original Loan F Bond"), which Original
Loan F Bond provides that the obligations of YIDA thereunder are limited to
payment of the Original Loan F Bond from the rentals under that certain Amended
and Restated Lease Agreement, dated October 1, 1989, between YIDA and the
Partnership (the "Original YIDA Lease" and, as amended by the First Amendment to
Lease, dated as of July 28, 1993, between YIDA and the Partnership, the "Amended
YIDA Lease"), and (c) secured by, among other things, (i) the three mortgages,
as consolidated, spread and modified, set forth in Schedule I-F attached hereto
(collectively, the "Original Loan F Mortgage"), covering certain land described
on Exhibit F attached hereto and the other property described therein and
located in Yonkers and Greenburgh, New York (the "Loan F Property"), and (ii)
the assignments of lessor's interest in leases set forth in Schedule I-F
attached hereto (the "Original Loan F Lease Assignments");
WHEREAS, on February 5, 1990, TIAA made a loan to the Partnership in the
original principal amount of $37,700,000, which loan was originally (a)
evidenced by the four notes, as assigned, consolidated and modified, set forth
in Schedule I-G attached hereto (collectively, the "Original Loan G Note"), and
(b) secured by, among other things, (i) the four mortgages, as assigned,
consolidated and modified, set forth in Schedule I-G attached hereto
(collectively, the "Original Loan G Mortgage"), covering certain land described
on Exhibit G attached hereto and the other property described therein and
located in Mount Pleasant, New York (the "Loan G Property"), and (ii) the
assignment of lessor's interest in leases, as modified as set forth in Schedule
I-G attached hereto (the "Original Loan G Lease Assignment");
WHEREAS, on September 11, 1990, TIAA made a loan to the Partnership in the
original principal amount of $42,400,000, which loan was originally (a)
evidenced by the four notes, as assigned, consolidated and modified, set forth
in Schedule I-H attached hereto (collectively, the "Original Loan H Note") four
mortgages, as assigned, consolidated and modified, set forth on Schedule I-H
attached hereto (collectively, the "Original Loan H Mortgages") covering certain
land described on Exhibit H attached hereto and the other property described
therein and located in White Plains, New York (the "Loan H Property"), and (ii)
the assignment of lessor's interest in leases, as modified, set forth in
Schedule I-H attached hereto (the "Original Loan H Lease Assignment");
3
WHEREAS, on July 15, 1982 and on January 29, 1990, TIAA made two loans to
the Partnership and its tenant-in-common (Tallyrand Property, Inc. or Corporate
Property Investors, as applicable), which loans were originally (a) evidenced by
the three notes, as assigned, consolidated and modified, set forth in Schedule
I-I attached hereto (collectively, the "Original Loan I Note"; the Original Loan
A Note, the Original Loan B Note, the Original Loan C Note, the Original Loan D
Note, the Original Loan E Note, the Original Loan F Note, the Original Loan F
Bond, the Original Loan G Note, the Original Loan H Note and the Original Loan I
Note are hereinafter sometimes referred to individually as an "Original Note"
and collectively as the "Original Notes"), and (b) secured by, among other
things, (i) the three mortgages, as assigned, consolidated and modified, set
forth in Schedule I-I attached hereto (collectively, the "Original Loan I
Mortgage"; the Original Loan A Mortgage, the Original Loan B Mortgage, the
Original Loan C Mortgage, the Original Loan D Mortgage, the Original Loan E
Mortgage, the Original Loan F Mortgage, the Original Loan G Mortgage, the
Original Loan H Mortgage and the Original Loan I Mortgage are hereinafter
sometimes referred to collectively as the "Original Mortgages"), covering
certain land described on Exhibit I attached hereto and the other property
described therein and located in Tarrytown, New York (the "Loan I Property"; the
Loan A Property, the Loan B Property, the Loan C Property, the Loan D Property,
the Loan E Property, the Loan F Property, the Loan G Property, the Loan H
Property and the Loan I Property are hereinafter sometimes referred to
individually as a "Property" and collectively as the "Properties"), and (ii) the
assignment of lessor's interest in leases, as modified, set forth in Schedule
I-I attached hereto (the "Original Loan I Lease Assignment");
WHEREAS, pursuant to that certain Modification of Loans Agreement, dated
as of July 28, 1993, among the Partnership, YIDA and TIAA (as amended by the
Supplemental Modification Agreement (as hereinafter defined), the "1993
Modification Agreement"), each of the loans evidenced by the Original Notes
(other than the loans evidenced by the Original Loan I Note) was restructured so
as to modify the maturity date thereof, the interest payable thereunder and
certain other terms relating to the repayment of such loans as more fully set
forth therein and such loans were subsequently further modified by that certain
Modification of Notes, Mortgage and Other Loan Documents (the "Supplemental
Modification Agreement"), dated as of July 30, 1993, among the Partnership, YIDA
and TIAA;
WHEREAS, pursuant to the 1993 Modification Agreement, (i) the Original
Loan A Note was amended and restated in its entirety by that certain First
Amended and Restated Consolidated Mortgage Note, dated as January 1, 1992, from
the Partnership to
4
TIAA, in the original principal amount of $15,342,294.10 (as amended by the
Supplemental Modification Agreement and by that certain Allonge, dated July 30,
1993, the "Loan A 1993 Amended Note"), (ii) the Original Loan A Mortgage was
amended and restated in its entirety by that certain First Amended and Restated
Consolidated Mortgage and Security Agreement (as amended by the Supplemental
Modification Agreement, the "Loan A 1993 Mortgage"), dated as of July 28, 1993,
between the Partnership and TIAA and (iii) the Original Loan A Lease Assignment
was amended and restated in its entirety by that certain Amended and Restated
Assignment of Lessor's Interest in Leases (as amended by the Supplemental
Modification Agreement, the "Loan A 1993 Lease Assignment") between the
Partnership and TIAA;
WHEREAS, pursuant to the 1993 Modification Agreement, (i) the Original
Loan B Note was amended and restated in its entirety by that certain First
Amended and Restated Consolidated Mortgage Note, dated as January 1, 1992, from
the Partnership to TIAA, in the original principal amount of $25,950,053.98 (as
amended by the Supplemental Modification Agreement and by that certain Allonge,
dated July 30, 1993, the "Loan B 1993 Amended Note"), (ii) the Original Loan B
Mortgage was amended and restated in its entirety by that certain First Amended
and Restated Consolidated Mortgage and Security Agreement (as amended by the
Supplemental Modification Agreement, the "Loan B 1993 Mortgage"), dated as of
July 28, 1993, between the Partnership and TIAA and (iii) the Original Loan B
Lease Assignment was amended and restated in its entirety by that certain
Amended and Restated Assignment of Lessor's Interest in Leases (as amended by
the Supplemental Modification Agreement, the "Loan B 1993 Lease Assignment")
between the Partnership and TIAA;
WHEREAS, pursuant to the 1993 Modification Agreement, (i) the Original
Loan C Note was amended and restated in its entirety by that certain First
Amended and Restated Mortgage Note, dated as January 1, 1992, from the
Partnership to TIAA, in the original principal amount of $6,337,801.65 (as
amended by the Supplemental Modification Agreement and by that certain Allonge,
dated July 30, 1993, the "Loan C 1993 Amended Note"), (ii) the Original Loan C
Mortgage was amended and restated in its entirety by that certain First Amended
and Restated Mortgage and Security Agreement (as amended by the Supplemental
Modification Agreement, the "Loan C 1993 Mortgage"), dated as of July 28, 1993,
between the Partnership and TIAA and (iii) the Original Loan C Lease Assignment
was amended and restated in its entirety by that certain Amended and Restated
Assignment of Lessor's Interest in Leases (as amended by the Supplemental
Modification Agreement, the "Loan C 1993 Lease Assignment") between the
Partnership and TIAA;
WHEREAS, pursuant to the 1993 Modification Agreement, (i) the Original
Loan D Note was amended and restated in its entirety by that certain First
Amended and Restated Consolidated Mortgage Note, dated as January 1, 1992, from
the Partnership to TIAA, in the original principal amount of $93,000,000 (as
amended by the Supplemental Modification Agreement and by that certain Allonge,
dated July 30, 1993, the "Loan D 1993 Amended Note"), (ii) the Original Loan D
Mortgage was amended and restated in its entirety by that certain First Amended
and Restated Consolidated Mortgage and Security Agreement (as amended by the
Supplemental Modification Agreement, the "Loan D 1993 Mortgage"), dated as of
July 28, 1993, between the Partnership and TIAA and (iii) the Original Loan D
Lease Assignment was amended and restated in its entirety by that certain
Amended and Restated Assignment of Lessor's Interest in Leases (as amended by
the Supplemental Modification Agreement, the "Loan D 1993 Lease Assignment")
between the Partnership and TIAA;
5
WHEREAS, pursuant to the 1993 Modification Agreement, (i) the Original
Loan E Note was amended and restated in its entirety by that certain First
Amended and Restated Consolidated Mortgage Note, dated as January 1, 1992, from
the Partnership to TIAA, in the original principal amount of $30,000,000 (as
amended by the Supplemental Modification Agreement, the "Loan E 1993 Amended
Note"), (ii) the Original Loan E Mortgage was amended and restated in its
entirety by that certain First Amended and Restated Consolidated Mortgage and
Security Agreement (as amended by the Supplemental Modification Agreement, the
"Loan E 1993 Mortgage"), dated as of July 28, 1993, between the Partnership and
TIAA and (iii) the Original Loan E Lease Assignment was amended and restated in
its entirety by that certain Amended and Restated Assignment of Lessor's
Interest in Leases (as amended by the Supplemental Modification Agreement, the
"Loan E 1993 Lease Assignment") between the Partnership and TIAA;
WHEREAS, pursuant to the 1993 Modification Agreement, (i) the Original
Loan F Note was amended and restated in its entirety by that certain First
Amended and Restated Consolidated Mortgage Note, dated as January 1, 1992, from
the Partnership to TIAA, in the original principal amount of $10,200,000 (as
amended by the Supplemental Modification Agreement, the "Loan F 1993 Amended
Note"), (ii) the Original Loan F Bond was amended and restated in its entirety
by that certain First Amended and Restated 1989 Taxable Industrial Development
Revenue Refunding Bond, dated as January 1, 1992, from YIDA to TIAA in the
original principal amount of $7,000,000 (as amended by the Supplemental
Modification Agreement, the "Loan F 1993 Amended Bond"), (iii) the Original Loan
F Mortgage was amended and restated in its entirety by that certain First
Amended and Restated Consolidated Mortgage and Security Agreement (as amended by
the
6
Supplemental Modification Agreement, the "Loan F 1993 Mortgage"), dated as of
July 28, 1993, between the Partnership, YIDA and TIAA and (iv) the Original Loan
F Lease Assignments were amended and restated in their entirety by that certain
Amended and Restated Assignment of Lessor's Interest in Leases (as amended by
the Supplemental Modification Agreement, the "Loan F 1993 Lease Assignment")
between the Partnership, YIDA and TIAA;
WHEREAS, pursuant to the 1993 Modification Agreement, (i) the Original
Loan G Note was amended and restated in its entirety by that certain First
Amended and Restated Consolidated Mortgage Note, dated as January 1, 1992, from
the Partnership to TIAA, in the original principal amount of $37,700,000 (as
amended by the Supplemental Modification Agreement, the "Loan G 1993 Amended
Note"), (ii) the Original Loan G Mortgage was amended and restated in its
entirety by that certain First Amended and Restated Consolidated Mortgage and
Security Agreement (as amended by the Supplemental Modification Agreement, the
"Loan G 1993 Mortgage"), dated as of July 28, 1993, between the Partnership and
TIAA and (iii) the Loan G Lease Assignment was amended and restated in its
entirety by that certain Amended and Restated Assignment of Lessor's Interest in
Leases (as amended by the Supplemental Modification Agreement, the "Loan G 1993
Lease Assignment") between the Partnership and TIAA;
WHEREAS, pursuant to the 1993 Modification Agreement, (i) the Original
Loan H Note was amended and restated in its entirety by that certain First
Amended and Restated Consolidated Mortgage Note, dated as January 1, 1992, from
the Partnership to TIAA, in the original principal amount of $42,211,848.58 (as
amended by the Supplemental Modification Agreement and by that certain Allonge,
dated July 30, 1993, the "Loan H 1993 Amended Note"; the Loan A 1993 Amended
Note, the Loan B 1993 Amended Note, the Loan C 1993 Amended Note, the Loan D
1993 Amended Note, the Loan E 1993 Amended Note, the Loan F 1993 Amended Note,
the Loan F 1993 Amended Bond, the Loan G 1993 Amended Note and the Loan H 1993
Amended Note are hereinafter sometimes referred to individually as a "1993
Amended Note" and collectively as the "1993 Amended Notes" and the 1993 Amended
Notes and the Loan I Amended Note (as hereinafter defined) are collectively
referred to as the "Amended Notes"), (ii) the Original Loan H Mortgage was
amended and restated in its entirety by that certain First Amended and Restated
Consolidated Mortgage and Security Agreement (as amended by the Supplemental
Modification Agreement, the "Loan H 1993 Amended Mortgage"; the Loan A 1993
Amended Mortgage, the Loan B 1993 Amended Mortgage, the Loan C 1993 Amended
Mortgage, the Loan D 1993 Amended Mortgage, the Loan E 1993 Amended Mortgage,
the Loan F 1993 Amended Mortgage, the Loan F 1993 Amended Bond, the Loan G 1993
Amended Mortgage and the Loan H 1993 Amended Mortgage are hereinafter sometimes
referred to
7
individually as a "1993 Amended Mortgage" and collectively as the "1993 Amended
Mortgages" and the 1993 Amended Mortgages and the Loan I Amended Mortgage (as
hereinafter defined) are collectively referred to as the "Existing Amended
Mortgages"), dated as of July 28, 1993, between the Partnership and TIAA and
(iii) the Original Loan H Lease Assignment was amended and restated in its
entirety by that certain Amended and Restated Assignment of Lessor's Interest in
Leases (as amended by the Supplemental Modification Agreement, the "Loan H 1993
Lease Assignment"; the Loan A 1993 Lease Assignment, the Loan B 1993 Lease
Assignment, the Loan C 1993 Lease Assignment, the Loan D 1993 Lease Assignment,
the Loan E 1993 Lease Assignment, the Loan F 1993 Lease Assignment, the Loan G
1993 Lease Assignment and the Loan H 1993 Lease Assignment are hereinafter
sometimes referred to individually as a "1993 Lease Assignment" and collectively
as the "1993 Lease Assignments" and the 1993 Lease Assignments and the Loan I
Amended Lease Assignment (as hereinafter defined) are collectively referred to
as the "Existing Amended Lease Assignments"), dated as of July 28, 1993, between
the Partnership and TIAA;
WHEREAS, pursuant to the 1993 Modification Agreement, the Partnership and
YIDA executed a Second Mortgage and Security Agreement (as amended by the
Supplemental Modification Agreement, the "Second Mortgage") and a Subordinate
Assignment of Lessor's Interest in Lease(s) (as amended by the Supplemental
Modification Agreement, the "Subordinate Assignment"), in each case covering the
Properties (other than the Loan I Property) and in favor of TIAA, as security
for the payment and performance by the Partnership of its obligations under that
certain Mortgage Note (the "Additional Note"), dated July 28, 1993, in favor of
TIAA in the original principal amount of $1,500,000;
WHEREAS, pursuant to the 1993 Modification Agreement, the Partnership
executed (a) a separate Third Mortgage and Security Agreement for each of the
Properties (other than the Loan I Property) in favor of TIAA (each such Third
Mortgage and Security Agreement, as amended by the Supplemental Modification
Agreement, is hereinafter referred to individually as a "Cross-collateral
Mortgage" and collectively as the "Cross-collateral Mortgages"), and (b) a
separate Subordinate Assignment of Lessor's Interest in Leases for each of the
Properties (other than the Loan I Property) (each such Subordinate Assignment of
Lessor's Interest in Leases, as amended by the Supplemental Modification
Agreement, is hereinafter referred to individually as a "Cross-collateral Lease
Assignment" and collectively as the "Cross-collateral Lease Assignments"), in
each case as additional security for the payment and performance by the
Partnership of its obligations under the 1993 Amended Notes, the 1993 Amended
8
Mortgages, the 1993 Lease Assignments and the 1993 Modification Agreement;
WHEREAS, (i) the Original Loan I Note was amended and restated in its
entirety by that certain First Amended and Restated Consolidated Note, dated as
January 1, 1994, from the Partnership to TIAA, in the original principal amount
of $16,366,391.61 (the "Loan I Amended Note"), (ii) the Original Loan I Mortgage
was amended by that certain Consolidation, Modification, Spreader and Extension
Agreement (as amended, the "Loan I Amended Mortgage"), dated as of December 23,
1994, between the Partnership and TIAA and (iii) the Original Loan I Lease
Assignment was amended and restated in its entirety by that certain Amended and
Restated Assignment of Lessor's Interest in Leases (the "Loan I Amended Lease
Assignment");
WHEREAS, on July 16, 1996, the Partnership converted into a limited
liability company under Section 1006 of the New York Liability Company Law and
is now known as the LLC;
WHEREAS, pursuant to the Second Modification of Loans Agreement (the
"Second Modification Agreement"), dated as of December 30, 1996, between the LLC
and TIAA and nine (9) separate Mortgage Splitter and Modification Agreements
(the "Mortgage Splitter Agreements"), each dated as of December 30, 1996,
between the LLC and TIAA, the LLC and TIAA amended the terms of the loans
evidenced by the Amended Notes (other than the loan evidenced by the Loan F 1993
Amended Bond) so as to, among other things, split such loans into (i) separate
first mortgage loans on the Properties in the aggregate principal amount
(together with the principal amount of the loan evidenced by the Loan F 1993
Amended Bond) of $185,283,477, such first mortgage loans evidenced by (a) the
First Replacement Mortgage Note, dated as of December 30, 1996, from the LLC to
TIAA in the principal amount of $10,292,001 (the "Loan A First Replacement
Note"), (b) the First Replacement Mortgage Note, dated as of December 30, 1996,
from the LLC to TIAA in the principal amount of $25,600,537 (the "Loan B First
Replacement Note"), (c) the First Replacement Mortgage Note, dated as of
December 30, 1996, from the LLC to TIAA in the principal amount of $4,462,646
(the "Loan C First Replacement Note"), (d) the First Replacement Mortgage Note,
dated as of December 30, 1996, from the LLC to TIAA in the principal amount of
$58,596,855 (the "Loan D First Replacement Note"), (e) the First Replacement
Mortgage Note, dated as of December 30, 1996, from the LLC to TIAA in the
principal amount of $15,464,970 (the "Loan E First Replacement Note"), (f) the
First Replacement Mortgage Note, dated as of December 30, 1996, from the LLC to
TIAA in the principal amount of $3,058,354 (the "Loan F First Replacement
Note"), and the Loan F 1993 Amended Bond in the amount of $7,000,000, (g) the
First Replacement
9
Mortgage Note, dated as of December 30, 1996, from the LLC to TIAA in the
principal amount of $21,552,695 (the "Loan G First Replacement Note"), (h) the
First Replacement Mortgage Note, dated as of December 30, 1996, from the LLC to
TIAA in the principal amount of $27,918,366 (the "Loan H First Replacement
Note"), and (i) the First Replacement Mortgage Note, dated as of December 30,
1996, from the LLC to TIAA in the principal amount of $11,337,053 (the "Loan I
First Replacement Note"; the Loan A First Replacement Note, the Loan B First
Replacement Note, the Loan C First Replacement Note, the Loan D First
Replacement Note, the Loan E First Replacement Note, the Loan F First
Replacement Note and the Loan F 1993 Amended Bond (as such Loan F 1993 Amended
Bond may be replaced by the Reduced Subordinate Replacement Note (as hereinafter
defined) and as such Reduced Subordinate Replacement Note and Loan F First
Replacement Note may be consolidated, amended and restated pursuant to the
Amended Loan F First Replacement Note (as hereinafter defined)), the Loan G
First Replacement Note, the Loan H First Replacement Note and the Loan I First
Replacement Note are hereinafter sometimes referred to individually as a "First
Replacement Note" and collectively as the "First Replacement Notes") and (ii) a
separate subordinate mortgage loan on the Properties (other than YIDA's interest
in the Loan F Property) in the aggregate principal amount of $98,637,600.31,
such subordinate mortgage loan evidenced by the Subordinate Replacement Notes
(as defined in the Second Modification Agreement);
WHEREAS, pursuant to the Second Modification and the Mortgage Splitter
Agreements, (i) each First Replacement Note is secured by the Existing Amended
Mortgage affecting the applicable Property, as amended by the Mortgage Splitter
Agreement with respect to such Property (each such mortgage being hereinafter
referred to as a "First Replacement Mortgage" and all such First Replacement
Mortgages being hereinafter collectively referred to as the "First Replacement
Mortgages"), and (ii) the Subordinate Replacement Notes are secured by a
Subordinate Replacement Mortgage and Security Agreement (the "Subordinate
Replacement Mortgage"), dated as of December 30, 1996, between the LLC and TIAA
covering the Properties (other than YIDA's interest in the Loan F Property);
WHEREAS, pursuant to the Second Modification Agreement and nine (9)
separate Lease Assignment Splitter and Modification Agreements (the "Lease
Splitter Agreements"), each dated as of December 30, 1996, between the LLC and
TIAA, (i) each First Replacement Note is also secured by the Existing Amended
Lease Assignment affecting the applicable Property, as amended by the Lease
Splitter Agreement with respect to such Property (each such assignment of
lessor's interest in leases being hereinafter referred to as the "First
Replacement Lease Assignment" and all
10
such First Replacement Lease Assignments being hereinafter collectively referred
to as the "First Replacement Lease Assignments"), and (ii) the Subordinate
Replacement Notes are also secured by a Subordinate Replacement Assignment of
Lessor's Interest in Leases (the "Subordinate Replacement Lease Assignment"),
dated as of December 30, 1996, between the LLC and TIAA covering the Properties
(other than YIDA's interest in the Loan F Property);
WHEREAS, pursuant to the Second Modification Agreement, (i) the terms of
each of the Cross-collateral Mortgages and the Cross-collateral Assignments were
amended pursuant to separate First Amendments to Third Mortgage and Security
Agreement and to Subordinate Assignment of Lessor's Interest in Leases, each
dated as of December 30, 1996, between the LLC and TIAA so as to, among other
things, secure the First Replacement Notes and to incorporate amendments
necessary to reflect the changes in loan terms contemplated by the Second
Modification Agreement and by the First Replacement Notes (as so amended the
"Loan A-H Cross-collateral Mortgages" and the "Loan A-H Cross-collateral
Assignments", respectively) and (ii) a new cross-collateral mortgage and
security agreement (the "Loan I Cross-collateral Mortgage"; the Loan A-H
Cross-collateral Mortgages and the Loan I Cross-collateral Mortgage are
hereinafter collectively referred to as the "Amended Cross-collateral
Mortgages") and a new subordinate assignment of lessor's interest in leases (the
"Loan I Cross-collateral Lease Assignment"; the Loan A-H Cross-collateral
Assignments and the Loan I Cross-collateral Lease Assignment are hereinafter
collectively referred to as the "Amended Cross-collateral Lease Assignments") on
the Loan I Property was executed by the LLC as additional security for the First
Replacement Notes;
WHEREAS, simultaneously with the execution and delivery hereof, the LLC is
acquiring title to the portion of the Loan F Property owned by YIDA;
WHEREAS, simultaneously with the execution and delivery hereof, the LLC is
transferring the Properties to the Borrowers and simultaneously therewith the
LLC is prepaying in its entirety the Additional Note and the Loan F 1993 Amended
Bond and is prepaying the amount outstanding on the Subordinate Replacement
Notes in excess of $7,000,000 (the remaining $7,000,000 principal amount of the
Subordinate Replacement Notes shall be evidenced by the Subordinate Replacement
Mortgage Note, dated December 30, 1996, from the LLC to TIAA in the original
principal amount of $7,141,646 and as so reduced shall hereinafter be referred
to as the "Reduced Subordinate Replacement Note") (the "Principal Prepayment")
and is making certain other payments to TIAA in connection with the transactions
contemplated hereby;
11
WHEREAS, as a condition to such transfer of the Properties, the Borrowers
have agreed to assume the First Replacement Notes (subject to the non-recourse
provisions expressly set forth therein);
WHEREAS, TIAA and Borrowers desire to consolidate the Loan F First
Replacement Note and the Reduced Subordinate Replacement Note so as to form a
single first indebtedness of $10,058,354 (as so consolidated, the "Amended Loan
F First Replacement Note") and to consolidate, modify and spread the primary
mortgages securing such notes; and
WHEREAS, TIAA and the Borrowers desire to amend and restate in their
entirety the First Replacement Mortgages, the First Replacement Lease
Assignments, the Amended Cross-collateral Mortgages and the Amended
Cross-collateral Lease Assignments.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the LLC, the Borrowers, and TIAA
hereby agree as follows:
1. Assumption of the First Replacement Notes. Xxxx XX hereby assumes the
Loan A First Replacement Note and the Loan B Replacement Note. Cali MW hereby
assumes the Loan C First Replacement Note and the Loan G First Replacement Note.
Elmsford Realty, Xxxx XX, Cali SW, Cali WP and Cali MW each hereby jointly and
severally assumes the Loan D First Replacement Note. Cali WP hereby assumes the
Loan E First Replacement Note and the Loan H First Replacement Note. Xxxx XX and
Cali SW each hereby jointly and severally assumes the Loan F First Replacement
Note and the Reduced Subordinate Replacement Note. Talleyrand Realty hereby
assumes the Loan I First Replacement Note. Each of the Borrowers agrees to be
personally bound for such performance pursuant to the First Replacement Notes to
the same extent as if said instruments had originally been executed by the
Borrowers, subject to the non-recourse provisions contained therein and herein.
In connection with such assumption, TIAA and the Borrowers are, simultaneously
with the execution and delivery of this Agreement, executing and delivering (a)
Amended and Restated First Replacement Mortgage and Security Agreements, each in
the form of Exhibit J-1 attached hereto (the "Amended and Restated First
Replacement Mortgages"), for each of the Properties, amending and restating in
its entirety each of the First Replacement Mortgages, (b) Amended and Restated
First Replacement Assignment of Lessor's Interest in Leases, each in the form of
Exhibit J-2 attached hereto (the "Amended and Restated First Replacement Lease
Assignments"), for each of the Properties, amending and restating in its
entirety each of the First Replacement Lease Assignments, (c) Amended and
Restated Cross-
12
collateral Mortgage and Security Agreements, each in the form of Exhibit J-3
attached hereto (the "Amended and Restated Cross-collateral Mortgages"), for
each of the Properties, amending and restating in its entirety each of the
Amended Cross-collateral Mortgages, (d) Amended and Restated Cross-collateral
Assignment of Lessor's Interest in Leases, each in the form of Exhibit J-4
attached hereto (the "Amended and Restated Cross-collateral Lease Assignments"),
for each of the Properties, amending and restating in its entirety each of the
Amended Cross-collateral Lease Assignments, (e) Consolidation, Spreader and
Modification Agreement in the form of Exhibit J-5 attached hereto among Xxxx XX,
Cali SW and TIAA, and (f) Amended and Restated First Replacement Mortgage Note
in the form of Exhibit J-6 attached hereto (the "Amended Loan F First
Replacement Note") from Xxxx XX and Cali SW to TIAA, the Borrowers shall execute
and deliver such additional security documents, including, without limitation,
amendments to all existing or new Uniform Commercial Code Financing Statements,
as TIAA may reasonably request. Promptly after the execution and delivery
thereof, the Borrowers shall cause this Agreement and related security documents
to be duly recorded or filed in the appropriate County Recorder's or Secretary
of State's offices and shall pay all recording, registration, filing fees and
other charges in connection therewith. This Agreement, the First Replacement
Notes, the Amended and Restated First Replacement Mortgages, the Amended and
Restated First Replacement Lease Assignments, the Amended and Restated
Cross-collateral Mortgages, the Amended and Restated Cross-collateral Lease
Assignments, and the additional security documents executed by the Borrowers are
hereinafter referred to collectively as the "Loan Documents". TIAA and the
Borrowers acknowledge that from and after the execution and delivery of this
Agreement, the terms of the loans from TIAA to Borrowers, and the Borrowers
obligations to TIAA with respect to such loans, shall be governed by the Loan
Documents and the Environmental Indemnity (as hereinafter defined). All
references in the Loan Documents to the "First Replacement Notes" shall be
deemed to refer to the First Replacement Notes as defined herein.
2. The Second Mortgage and Subordinate Replacement Mortgage. The parties
acknowledge that the Principal Prepayment represents the amounts due under the
Additional Note, and secured by the Second Mortgage and Subordinate Assignment,
and the amounts due under the Subordinate Replacement Note and secured by the
Subordinate Replacement Mortgage and the Subordinate Replacement Lease
Assignment. Simultaneously with the execution and delivery hereof, TIAA will
cause the necessary satisfactions, releases and termination statements related
to the Additional Note, the Second Mortgage, the Subordinate Assignment, the
Subordinate Replacement Notes, the Subordinate Replacement Mortgage and the
Subordinate Replacement Lease Assignment and
13
related security documents to be executed and delivered to the LLC and the LLC
will cause such documents to be duly recorded or filed in the appropriate county
or secretary of state's offices in New York.
3. Termination of YIDA Documents. Simultaneously with (or prior to) the
execution and delivery of this Agreement, YIDA, the LLC and TIAA, as
appropriate, shall enter into the Lease Termination Agreement in the form of
Exhibit K attached hereto (the "YIDA Lease Termination Agreement"), pursuant to
which the Amended YIDA Lease and certain security documents relating thereto
shall be terminated. Promptly after the execution and delivery thereof, the LLC
shall cause the YIDA Lease Termination Agreement to be duly recorded or filed in
the appropriate county or secretary of state's offices in New York and shall pay
all recording, registration and filing fees and other charges, if any, in
connection therewith. As a result of the execution and delivery of the
above-described documents, YIDA shall no longer have any interest in the Loan F
Property and the loans and security agreements for such Loan F Property shall be
directly between TIAA and Xxxx XX and Cali SW.
4. INTENTIONALLY OMITTED
5. Recourse Loan. Cali Realty, LP ("CRLP") shall have the right to cause
the loans evidenced by the First Replacement Notes to be refinanced through a
senior unsecured publicly registered and rated recourse loan by TIAA to CRLP
(the "Recourse Loan"), provided that such conversion right shall be subject to
various closing conditions to be agreed upon by TIAA and CRLP, each party acting
reasonably, including, without limitation, the preparation of acceptable loan
documents, the rating of such Recourse Loan as BBB- or better by Standard &
Poor's (or the equivalent rating by Xxxxx'x Investors Services) and by either
Fitch Investor Services or Duff & Xxxxxx (or such organization's equivalent
rating), there being no material adverse change in the financial condition of
CRLP, and there being no Event of Default or event which, with the passage of
time or the giving of notice of both, would be an Event of Default under the
Loan Documents or the documents to evidence such Recourse Loan. If CRLP elects
to enter into the Recourse Loan, such Recourse Loan shall be on the terms and
conditions set forth on the term sheet attached hereto as Exhibit L or on such
other terms and conditions as shall be acceptable to CRLP and TIAA and which are
customary for debt issuances by public real estate investment trusts owning
properties similar to the Properties which debt issuances have been rated by
Standard & Poor's (or Xxxxx'x Investor Services) and have a rating comparable to
the rating on the Recourse Loan. TIAA and each of the Borrowers agree that any
reference in the First Replacement
14
Notes to Paragraph 7 of the Second Modification Agreement shall, from and after
the date hereof, be deemed to refer to this Paragraph 5.
6. Prepayment. The First Replacement Notes shall be prepayable in their
entirety (except partial prepayments shall be permitted as set forth in
Paragraph 12 of the Second Modification Agreement) at any time from and after
the date hereof upon delivery to TIAA of not less than fifteen (15) (nor more
than sixty (60)) days prior written notice by the Borrower of their intent to
prepay the First Replacement Notes and upon payment to TIAA of a prepayment
premium as set forth in the First Replacement Notes, all as more fully set forth
in the First Replacement Notes, provided that no prepayment premium shall be
required in connection with the refinancing of the First Replacement Notes
pursuant to the terms set forth in Paragraph 5 hereof. Upon default by any
Borrower and following the acceleration of maturity of any First Replacement
Note, a tender of payment of the amount necessary to satisfy the entire
indebtedness (including sale under any power of sale contained in the security
documents) or during any redemption period after foreclosure, by any Borrower,
its successors or assigns, or by any one on behalf of any Borrower, its
successors or assigns, shall constitute an evasion of the prepayment privilege
and shall be deemed to be a prepayment of the First Replacement Notes and such
prepayment, to the extent permitted by law, will therefore include a premium
required under the prepayment privilege set forth in the First Replacement
Notes.
7. Non-Recourse. Notwithstanding any provisions in this Agreement, the
First Replacement Notes or in the Loan Documents, it is expressly understood and
agreed that if TIAA at any time takes action to enforce the collection of
amounts owing under the First Replacement Notes or the Loan Documents, TIAA will
proceed to foreclose the Amended and Restated First Mortgages and/or the Amended
and Restated Cross-collateral Mortgages and to exercise its remedies with
respect to collateral securing the First Replacement Notes. If, as a result of
such foreclosure and sale of the property described therein, a lesser sum is
realized therefrom than the amount then due and owing under the First
Replacement Notes and any document securing the First Replacement Notes, TIAA
will never institute any action, suit, claim or demand in law or in equity
against the Borrowers or the partners of the Borrowers or any directors,
officers, shareholders or employees of the Borrowers or the partners of
Borrowers seeking personal liability for or on account of such deficiency.
Nothing contained in the immediately preceding paragraph will in any way
affect or impair (i) the lien of the
15
Amended and Restated First Replacement Mortgages, the Amended and Restated
Cross-collateral Mortgages or any lien on other collateral, TIAA's ability to
foreclose the Amended and Restated First Replacement Mortgages, the Amended and
Restated Cross-collateral Mortgages or any lien on other collateral, or any
representation or warranty of title made by any Borrower, all of which will
remain in full force and effect and inure to the benefit of TIAA and to the
benefit of any insurer of title to a Property; (ii) TIAA's rights under any
master lease, any indemnity agreement or any guarantee given by any Borrower or
the partners of any Borrower to TIAA in connection with the indebtedness
evidenced by the First Replacement Notes; (iii) TIAA's right to present and
collect on any letter of credit in connection with the indebtedness evidenced by
the First Replacement Notes; or (iv) any Borrower's personal liability for the
indebtedness evidenced by any of the First Replacement Notes if at the time of
acceleration of the indebtedness or foreclosure of the Amended and Restated
First Replacement Mortgages or the Amended Cross-collateral Mortgages and sale
of a Property, such Borrower is in default under any of the provisions of
Sections 62, 63 or 64 of any of the Amended and Restated First Replacement
Mortgages or the Amended and Restated Cross-collateral Mortgages (such sections
relating to Environmental Laws as defined therein) and such default has an
adverse effect on the value of such Property, but such personal liability shall
be only to the extent of the loss in value of such Property resulting from such
failure to comply with the provisions of such sections. Further, the following
are excluded and excepted from the provisions of the immediately preceding
paragraph and TIAA may recover personally against the Borrowers for the
following:
(1) all losses, damages or liabilities suffered by TIAA arising out of
any fraud or willful or intentional misrepresentation by the any Borrower or
any of the Borrower's partners, members or principals of any Borrower in
connection (i) with any Borrower's performance or fulfillment of any of
TIAA's conditions to or requirements in advancing the indebtedness evidenced
by the First Replacement Notes or otherwise with any Borrower's inducements
to TIAA to advance such indebtedness; (ii) with the execution and delivery of
any of the documents evidencing or securing the indebtedness evidenced by the
First Replacement Notes; (iii) with the making of any representations or
warranties (which are in addition to the representations and warranties of
title in the Amended and Restated First Replacement Mortgages or the Amended
and Restated Cross-collateral Mortgages covered under the preceding
paragraph) contained in any of the documents evidencing or securing the
indebtedness evidenced by the First Replacement Notes; or (iv) with any
Borrower's performance of any of its obliga-
16
tions under any of the documents evidencing or securing the indebtedness
evidenced by the First Replacement Notes;
(2) all rents and other revenues, payments or reimbursements ("Income")
of any kind whatsoever (including all payments and contributions from tenants
for taxes, insurance, operating expenses and common area maintenance charges)
derived from a Property after a default by any Borrower (whether or not
notice of such default has been given) under any of the documents evidencing
or securing the indebtedness evidenced by the First Replacement Notes or on
deposit on the date such default occurs in one or more accounts used by any
Borrower or any Borrower's agents, representatives or property manager in
connection with the operation of a Property, except to the extent properly
applied (as documented by evidence reasonably satisfactory to TIAA) to the
normal and customary expenses and operations of a Property;
(3) all security deposits collected by any Borrower (or any of such
Borrower's predecessors) and not properly refunded to tenants and all advance
rents collected by a Borrower (or any of such the Borrower's predecessors)
and not properly applied in due course; proper refunding or application must
be documented by evidence reasonably satisfactory to TIAA;
(4) the replacement cost of any items of personalty or any fixtures
removed from a Property, and not replaced with personalty or fixtures of a
like kind, value and utility, after any Borrower defaults under any of the
documents evidencing or securing the indebtedness evidenced by the First
Replacement Notes;
(5) all losses, damages or liabilities suffered by TIAA arising from
any acts of commission or omission by any Borrower that result in waste upon
a Property;
(6) all payments made by TIAA to discharge mechanic's liens,
materialmen's liens or any other liens arising from work performed on or
materials delivered to a Property prior to foreclosure of the Amended
Restated First Replacement Mortgage or the Amended and Restated
Cross-collateral Mortgage and sale of a Property but only to the extent TIAA
had advanced funds to such Borrower to pay for such work or materials and has
not been reimbursed therefor; and
(7) any insurance or condemnation proceeds attributable to a Property
that are not applied in accordance with the terms of the Amended and Restated
First Replacement
17
Mortgage or the Amended and Restated Cross-collateral Mortgage and any
insurance or condemnation proceeds attributable to a Property that were not
paid to TIAA when and to the extent required under the terms of the Amended
and Restated First Replacement Mortgages or the Amended and Restated
Cross-collateral Mortgages.
The provisions of this Paragraph 7 shall not be deemed to diminish or
limit the liability of an indemnitor under that certain Environmental Indemnity
dated as of even date herewith from Borrowers and CRLP to TIAA given to
indemnify TIAA against any loss TIAA may incur by reason of a failure to comply
with any Environmental Laws.
8. Representations and Warranties of the Borrowers and the LLC.
(a) In order to induce TIAA to enter into this Agreement, the Borrowers
hereby jointly and severally warrant and represent to TIAA as follows:
(i) Each Borrower is a duly organized and validly existing limited
partnership organized under the laws of the State of Delaware, has all
requisite power and authority to execute and deliver this Agreement and all
other documents and instruments to be executed and delivered by it hereunder,
and to perform its obligations hereunder and under such other documents and
instruments in order to assume all of the obligations of the LLC and the
Partnership as set forth in the Loan Documents in accordance with the terms
and conditions hereof. All necessary actions of the partners of each Borrower
to confer such power and authority upon the persons executing this Agreement
and all documents which are contemplated by this Agreement on its behalf have
been taken.
(ii) This Agreement and the agreements and other documents to be
executed and delivered by each of the Borrowers hereunder, when duly executed
and delivered, will be the legal, valid and binding obligation of such
Borrower, enforceable in accordance with their terms. The performance by each
Borrower of each of its duties and obligations under this Agreement and the
documents and instruments to be executed and delivered by each of them
hereunder will not conflict with, or result in a breach of, or default under,
any provision of any of the organizational documents of each Borrower or any
agreements, instruments, decrees, judgments, injunctions, orders, writs,
laws, rules or regulations, or any determination or award of any court or
arbitrator, to
18
which each Borrower is a party or by which each of its assets are or may be
bound.
(iii) Each Borrower has furnished to TIAA a true and complete copy of
its Partnership Agreement, as amended to date, and of the Partnership
Agreement of CRLP as amended to date.
(iv) No action, suit, claim, investigation or proceeding, whether legal
or administrative or in meditation or arbitration, is pending or, to best
knowledge of each Borrower, threatened, at law or in equity, against any of
the Borrowers before or by any court or federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality
which would prevent any of the Borrowers from performing their respective
material obligations pursuant to this Agreement or the Loan Documents. There
are no judgments, decrees or orders entered on a suit or proceeding against
any Borrower, an adverse decision in which might, or which judgment, decree
or order does, adversely affect the ability of any Borrower to perform its
respective material obligations pursuant to this Agreement or the Loan
Documents, or which seeks to restrain, prohibit, invalidate, set aside,
rescind, prevent or make unlawful this Agreement or the carrying of this
Agreement or the transactions contemplated hereby.
(v) The execution and delivery of this Agreement and the documents
contemplated hereby and the performance by each Borrower of its respective
obligations hereunder and thereunder do not and will not conflict in any
material respect with or violate any law, rule, judgment, regulation, order,
writ, injunction or decree of any court or governmental or quasi-governmental
entity with jurisdiction over any Borrower, including, without limitation,
the United States of America, the States of New York and New Jersey or any
political subdivision of any of the foregoing, or any decision or ruling of
any arbitrator to which any Borrower is a party or by which any Borrower is
bound or affected.
(vi) The sole general partner of each Borrower is a wholly-owned
subsidiary of the REIT and the sole limited partner of each Borrower is CRLP.
(vii) None of the REIT, CRLP or any Borrower has made a general
assignment for the benefit of creditors, filed any voluntary petition in
bankruptcy or suffered the filing of any involuntary petition by either of
the REIT's, CRLP's or any Borrower's creditors, suffered the appointment of a
receiver to take possession of all, or substantially all, of
19
the REIT's, CRLP's or any Borrower's assets, suffered the attachment or other
judicial seizure of all, or substantially all, of the REIT's, CRLP's or any
Borrower's assets, admitted in writing its inability to pay its debts as they
come due or made an offer of settlement, extension or composition to its
creditors generally.
(b) In order to induce TIAA to enter into this Agreement, the LLC hereby
represents and warrants to TIAA as follows (it being acknowledged that the
following are representations and warranties made by the LLC for the benefit of
TIAA and that any failure of such representations and warranties to be true and
correct shall not constitute a default under the Loan Documents):
(i) The LLC is a limited liability company duly formed and validly
existing under the laws of the State of New York.
(ii) The LLC has full power and authority to execute and deliver this
Agreement and to perform all transactions (including the execution and
delivery of all documents) required of the LLC for the performance of this
Agreement. This Agreement has been duly authorized and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
LLC, enforceable in accordance with its terms. Prior to or on the date of
this Agreement, all transactions required by this Agreement to be performed
as of such date by the LLC shall have been duly accomplished, all documents
required by this Agreement to be executed and delivered by the LLC shall have
been duly authorized, executed and delivered and all such documents shall be
enforceable in accordance with their terms.
(iii) The execution and delivery of this Agreement and the performance
by the LLC of all transactions required by this Agreement (including the
execution and delivery of all documents required by this Agreement to be
executed and delivered by the LLC):
(x) do not breach any contractual covenants or restrictions between the
LLC and any third party and do not conflict with the any federal, state
or local laws and the rules and regulations promulgated thereunder;
(y) do not require any consent or approval of any public or private
authority; and
(z) are not threatened with invalidity or unenforceability by any
action, proceeding (including, without limitation, bankruptcy or
insolvency proceed-
20
ings) or investigation pending or presently threatened by or against
the LLC.
9. Transfer, Pledge and Assignment of Company Interests. Without the prior
written consent of TIAA, CRLP and the REIT shall be prohibited from, directly or
indirectly, transferring, pledging or assigning, in one or more transactions,
any of their respective interests in the Borrowers, provided that it is
understood and agreed that the prior written consent of TIAA shall not be
required for any transfer or conveyance to one or more wholly-owned subsidiaries
of CRLP or the REIT.
10. Partial Releases. If any Borrower shall desire to sell, transfer or
otherwise convey its interest in any Property, or any portion thereof, to an
unaffiliated third party, such Borrower shall have the right to obtain a partial
release of the Amended and Restated First Replacement Mortgage and the Amended
and Restated Cross-collateral Mortgage and the other Loan Documents encumbering
such Property, or portion thereof, subject in each case to the terms and
conditions as set forth in this Paragraph 10. A partial release shall only be
permitted with respect to the properties listed on Schedule II attached hereto
and such properties may not be further subdivided for purposes of this Paragraph
10. In order to qualify for a partial release of the Amended and Restated First
Replacement Mortgage and the Amended and Restated Cross-collateral Mortgage
encumbering such Property, or portion thereof, the Borrower must satisfy all of
the following conditions:
(a) As of the release date, there shall be no Event of Default or
condition or event which, with the giving of notice or the
expiration of time, or both, would constitute an Event of Default
under any of the Loan Documents;
(b) TIAA shall have received, not less than 15 days prior to the
proposed release date (the "Release Date"), a written request for
such release from the Borrower that owns the applicable Property, or
portion thereof, which notice shall specify the Property, or portion
thereof, proposed to be released and the proposed release payment
pursuant to this Paragraph 10.
(c) TIAA shall have received pursuant to this Paragraph 10 with respect
to the requested release of the Property in question, or portion
thereof, a prepayment of the First Replacement Note secured by a
first mortgage on such Property (or portion thereof) in an amount
equal to the amount set
21
forth on Schedule II attached hereto with respect to such Property
(or portion thereof) plus any accrued interest on the amount of such
prepayment and the prepayment premium, if any, thereon in accordance
with the terms of such First Replacement Note;
(d) TIAA shall have received such title reports and endorsements to the
title insurance policies issued in connection with the Amended and
Restated First Replacement Mortgages and the Amended and Restated
Cross-collateral Mortgages as TIAA shall reasonably require and as
shall be reasonably available confirming that the release of the
Property (or portion thereof) will not affect the title insurance
issued to TIAA on the remaining Properties;
(e) TIAA shall be reasonably satisfied that the release of the Property
in question, or a portion thereof, will not result in a violation in
any applicable legal requirements relating to the building code and
zoning laws with respect to the Properties remaining as collateral
for the First Replacement Notes and that the Property, or a portion
thereof, to be released constitutes a separate tax lot;
(f) All of TIAA's reasonable legal, title, recording and other
transaction costs with respect to such requested release (including
attorney fees and expenses) shall be paid by the Borrower requesting
such release; and
(g) If after the date hereof any entity shall guaranty all or any
portion of the indebtedness evidenced by the First Replacement Notes
or the Loan Documents, such guarantor shall have agreed that the
release of the Property will not affect the terms of its Guaranty.
Upon the satisfaction of all of the foregoing conditions, TIAA shall
execute and deliver to the applicable Borrower on the Release Date a partial
release or partial assignment (without representation or warranty by TIAA and
without recourse to TIAA) of the First Replacement Mortgage and the Amended and
Restated Cross-collateral Mortgage and the other Loan Documents encumbering the
Property (or portion thereof) to be released, such partial release to cover the
portion of the Property to be released as set forth above and to be in a form
22
reasonably satisfactory to TIAA. TIAA and each of the Borrowers agree that any
reference in the First Replacement Notes to Paragraph 12 of the Second
Modification Agreement shall, from and after the date hereof, be deemed to refer
to this Paragraph 10.
11. Environmental Indemnity. Simultaneously with the execution and
delivery of this Agreement, each Borrower and CRLP shall, in consideration of
the execution and delivery of this Agreement by TIAA, execute and deliver to
TIAA an environmental indemnity agreement in the form of Exhibit M attached
hereto (the "Environmental Indemnity").
12. RMC Escrow Agreement. Pursuant to the 1993 Modification Agreement, the
Partnership established the Impound Escrow Account and the RMC Escrow Account(as
such terms are defined in the 1993 Modification Agreement). Simultaneously with
the execution and delivery of this Agreement, the Impound Escrow Account and the
RMC Escrow Account will be terminated pursuant to a Termination of Escrow
Agreements in the form of Exhibit N attached hereto and the proceeds thereof
will be released to the LLC.
13. Lockbox Account. Pursuant to the 1993 Modification Agreement, the
Partnership established a Lock-Box Account with the Bank (as such terms are
defined in the 1993 Modification Agreement). Simultaneously with the execution
and delivery of this Agreement, the Lock-Box Account shall be terminated and
TIAA, the Bank and the LLC shall enter into a Termination of Lock-Box Agreements
in the form of Exhibit O attached hereto.
14. Letter Agreement. Simultaneously with the execution hereof the
Borrowers and TIAA shall enter into a side letter substantially in the form of
Exhibit P attached hereto, which shall address certain issues regarding the
transaction contemplated herein, including but not limited to press releases
issued by any of the Borrowers and/or CRLP and late charges payable under the
First Replacement Notes.
15. Miscellaneous. References in this Agreement to any document or
agreement shall also include any subsequent amendment, modification,
restatement, consolidation or replacement thereof. Except as expressly set forth
in this Agreement, this Agreement supersedes in its entirety the Second
Modification Agreement. This Agreement may be executed in counterparts. If any
provision of the Loan Documents or other documents delivered in connection
therewith is inconsistent with or contrary to any provision of this Agreement,
the provision of this Agreement shall control and prevail over such inconsistent
or contrary provision in such other document.
23
IN WITNESS WHEREOF, the LLC, the Borrowers and TIAA have executed and
delivered this Assumption of Loans Agreement as of the date and year first above
written.
XXXXXX XXXXXX COMPANY, LLC
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
XXXX XX REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc.,
its sole general partner
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: V.P. and General Counsel
ELMSFORD REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc.,
its sole general partner
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: V.P. and General Counsel
TALLEYRAND REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc.,
its sole general partner
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: V.P. and General Counsel
24
CALI MID-WEST REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc.,
its sole general partner
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: V.P. and General Counsel
CALI SO. WEST REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc.,
its sole general partner
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: V.P. and General Counsel
CALI WP REALTY ASSOCIATES L.P.
By: Cali Sub XIV, Inc.,
its sole general partner
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: V.P. and General Counsel
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/ Xxxx XxXxxxx
---------------------------------
Name: Xxxx XxXxxxx
Title: Associate Director
25
EXHIBIT J-6
FORM OF AMENDED AND RESTATED LOAN F FIRST REPLACEMENT NOTE
AMENDED AND RESTATED FIRST
REPLACEMENT MORTGAGE NOTE
$10,058,354 New York, New York
January ___, 1997
FOR VALUE RECEIVED, the undersigned, XXXX XX REALTY ASSOCIATES L.P.,
a New York limited partnership, and CALI SO. WEST REALTY ASSOCIATES L.P., a New
York limited partnership, each having offices at 00 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxx Xxxxxx 00000 (jointly and severally, "Maker"), jointly and severally promise
to pay to TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA ("Holder"), a
New York corporation, or order, during regular business hours at its offices at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as may be
designated from time to time in writing by Holder, the principal sum of TEN
MILLION FIFTY-EIGHT THOUSAND THREE HUNDRED FIFTY-FOUR ($10,058,354) DOLLARS, or
so much thereof as may have been advanced hereunder, together with Fixed
Interest (as hereinafter defined) on so much thereof as is from time to time
outstanding and unpaid, all in lawful money of the United States of America
which shall at that time be deemed to be legal tender in payment of all debts
and dues, public and private. The principal amount hereof, and the Fixed
Interest, shall be paid by Maker to Holder as set forth below.
1. Definitions. As used in this Note, the following terms shall have
the following meanings.
"Applicable Rate" shall mean a rate of interest equal to 7.18% per
annum.
"Consolidation Agreement" shall mean the Consolidation, Spreader and
Modification Agreement, dated as of the date hereof, between Maker and
Holder
"Cross-Collateral Mortgages" shall have the meaning specified in
Section 13.
"Default Discount Rate" shall mean the Discount Rate (as hereinafter
defined) less 300 basis points.
"Default Rate" shall mean twelve percent (12%) per annum.
"Discounted Value" shall mean the discounted value of a Note Payment
(as hereinafter defined), based on the following formula:
NP
-----------
(1 + R/12)^n = Discounted Value
NP = Amount of Note Payment
R = Discount Rate or Default Discount Rate, as the case may be.
n = The number of months between the date of prepayment and the
Maturity Date (as hereinafter defined), rounded to the nearest
integer.
"Discount Rate" shall mean the sum of (a) the yield on a U.S.
Treasury issue selected by Holder, as published by The Wall Street
Journal, two (2) weeks prior to a permitted Payment Date (as hereinafter
defined) having a maturity date corresponding (or most closely
corresponding, if not identical) to the Maturity Date and a coupon
interest rate corresponding (or most closely corresponding, if not
identical) to the rate of interest on this Note and (b) 1%.
"Fixed Interest" shall have the meaning specified in Section 2.
"Holder" shall mean Teachers Insurance and Annuity Association of
America, a New York corporation.
"Loan Documents" shall have the meaning set forth in the Third Loan
Modification Agreement.
"Maker" shall mean, jointly and severally, XXXX XX REALTY ASSOCIATES
L.P., a New York limited partnership, and CALI SO. WEST REALTY ASSOCIATES
L.P., a New York limited partnership.
"Maturity Date" shall mean December 31, 2003.
"Mortgage" shall mean the mortgages identified on Schedule I
attached hereto, as consolidated, amended and restated in their entirety
by Amended and Restated Consolidated First Replacement Mortgage, dated as
of the date hereof, between Maker and Holder, covering certain property
described therein and located in Greenburgh and Yonkers, New York.
"Mortgaged Property" shall have the meaning specified in the
Granting Clauses of the Mortgage.
2
"Note Payments" shall mean any payments of Fixed Interest and
principal under this Note, but does not include other payments under this
Note or the Loan Documents such as late payment charges, interest paid at
the Default Rate, escrow payments or payments made as reimbursement for
sums expended by Holder under the terms of the Loan Documents, whether or
not those sums expended are deemed added to principal pursuant to the
terms of the Loan Documents.
"Other Replacement Notes" shall mean (a) the First Replacement
Mortgage Note, dated December 30, 1996, from Xxxxxx Xxxxxx Company, LLC
(the "LLC") to Holder, in the principal amount of $10,292,001, (b) the
First Replacement Mortgage Note, dated December 30, 1996, from the LLC to
Holder, in the principal amount of $25,600,537, (c) the First Replacement
Mortgage Note, dated December 30, 1996, from the LLC to Holder, in the
principal amount of $4,462,646, (d) the First Replacement Mortgage Note,
dated December 30, 1996, from the LLC to Holder, in the principal amount
of $15,464,970, (e) the First Replacement Mortgage Note, dated December
30, 1996, from the LLC to Holder, in the principal amount of $58,596,855,
(f) the First Replacement Mortgage Note, dated December 30, 1996, from the
LLC to Holder, in the principal amount of $21,552,695, (g) the First
Replacement Mortgage Note, dated December 30, 1996, from the LLC to
Holder, in the principal amount of $27,918,366 and (h) the First
Replacement Mortgage Note, dated December 30, 1996, from the LLC to
Holder, in the principal amount of $11,337,053.
"Payment Date" shall mean the Maturity Date or any earlier date on
which there is a voluntary or involuntary prepayment of this Note,
including any payment or prepayment of this Note after acceleration or
otherwise.
"Prepayment Date" shall mean the date on which any principal
evidenced by this Note, the accrued Fixed Interest thereon and all other
sums then due and owing under the Loan Documents are paid.
"Prepayment Premium" shall mean the amount by which the sum of the
Discounted Value of Note Payments, calculated at the Discount Rate exceeds
the principal balance of this Note on the Prepayment Date, provided that
(a) if such Prepayment Premium is being calculated in connection with a
prepayment of this Note following the occurrence of an Event of Default
under the Loan Documents the Default Discount Rate shall be used in lieu
of the Discount Rate, and (b) in the case of a partial prepayment of this
Note in accordance with Paragraph 10 of the Third Loan Modification
Agreement, the Note
3
Payments shall be calculated based upon the principal amount being prepaid
and the Fixed Interest thereon.
"Properties" shall have the meaning specified in the Third Loan
Modification Agreement.
"Replacement Notes" shall mean this Note and the Other Replacement
Notes.
"Third Loan Modification Agreement" shall mean the Third
Modification and Assumption of Loans Agreement, dated as of the date
hereof, among the LLC, Maker, certain other subsidiaries of Cali Realty
L.P. and Holder.
2. Fixed Interest; Payments of Fixed Interest. From and after the
date hereof, fixed interest shall accrue on the principal balance outstanding
hereunder at the Applicable Rate (the "Fixed Interest").
Maker shall make payments on account of Fixed Interest to Holder, at
the address and in the manner specified above, in arrears on the first day of
each calendar month commencing on January 1, 1997 and continuing through and
including December 1, 2003.
3. Maturity Date. The entire unpaid principal balance of this Note,
together with all unpaid Fixed Interest and all sums due hereunder and under the
Mortgage shall be due and payable on the Maturity Date.
4. Prepayment. (a) Maker shall have no right, power or privilege to
prepay this Note in whole or in part except as expressly set forth herein. From
and after the date hereof, Maker shall be entitled to prepay the entire (but not
less than the entire, provided that after the Transfer Date partial prepayments
of this Note shall be permitted in accordance with paragraph 10 of the Third
Loan Modification Agreement) principal balance of this Note on not less than
fifteen (15) days' prior written notice to Holder, together with all unpaid
Fixed Interest and all other sums then due and owing under this Note and the
Mortgage, upon the payment of an amount equal to the Prepayment Premium,
provided that, except with respect to partial prepayments under Paragraph 10 of
the Third Loan Modification Agreement, simultaneously with any such prepayment
Maker shall also prepay all of the Other Replacement Notes in accordance with
their respective terms. Notwithstanding the aforesaid to the contrary, no
Prepayment Premium shall be required in connection with (x) a refinancing of
this Note pursuant to Paragraph 5 of the Third Loan Modification Agreement, or
(y) so long as no Event
4
of Default has occurred and is continuing, a prepayment of this Note occurring
on or after October 1, 2003.
(b) Maker specifically acknowledges and agrees that if all or any
part of the indebtedness evidenced hereby shall be paid prior to the Maturity
Date for any reason whatsoever, whether such payment is voluntary or involuntary
and whether or not such payment arising by virtue of (i) the exercise by Maker
of the prepayment privilege, if any, expressly reserved in this Note, or (ii) a
default by Maker hereunder or under the Mortgage or any other document
evidencing or securing the loan evidenced hereby or a default arising from the
failure for any reason of Maker to pay the principal balance of this Note after
giving Holder written notice of its intention to make such prepayment, then such
payment, except as set forth in clause (a) above, shall include an amount equal
to the Prepayment Premium. No Prepayment Premium shall be due in connection with
a prepayment of the whole or any part of this Note from insurance proceeds or
condemnation awards.
(c) MAKER HEREBY FURTHER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT
(A) THE PREPAYMENT PREMIUM IS REASONABLE IN AMOUNT, (B) THE PREPAYMENT PREMIUM
SHALL BE PAID WITHOUT PREJUDICE TO THE RIGHT OF HOLDER TO COLLECT ANY OTHER
AMOUNTS PROVIDED TO BE PAID HEREUNDER OR UNDER THE MORTGAGE OR ANY OTHER
DOCUMENT EVIDENCING OR SECURING THE LOAN EVIDENCED HEREBY, (C) ANY TENDER OF
PAYMENT BEFORE THE MATURITY DATE FOR ANY REASON WHATSOEVER (EXCEPT IN CONNECTION
WITH HOLDER'S APPLICATION, IF ANY, OF INSURANCE PROCEEDS OR CONDEMNATION AWARDS
TO REDUCE THE OUTSTANDING PRINCIPAL BALANCE HEREOF AND EXCEPT AS PROVIDED IN
CLAUSE (a) ABOVE) OF ALL OR ANY PART OF THE INDEBTEDNESS EVIDENCED HEREBY SHALL
INCLUDE THE PREPAYMENT PREMIUM, (D) HOLDER SHALL BE ENTITLED TO BID ALL OR A
PORTION OF THE PREPAYMENT PREMIUM AT ANY FORECLOSURE SALE UNDER THE MORTGAGE,
(E) IF AN EVENT OF DEFAULT OCCURS HEREUNDER OR UNDER THE MORTGAGE OR ANY OTHER
DOCUMENT EVIDENCING OR SECURING THE LOAN EVIDENCED HEREBY, HOLDER SHALL BE
ENTITLED TO DAMAGES FOR THE DETRIMENT CAUSED THEREBY, BUT THAT IT IS EXTREMELY
DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE EXTENT OF SUCH DAMAGES AND THAT THE
PREPAYMENT PREMIUM IS A REASONABLE ESTIMATE OF SUCH DAMAGE, AND (F) NOTHING
CONTAINED HEREIN OR IN THE MORTGAGE SHALL BE DEEMED TO MEAN THAT MAKER HAS ANY
RIGHT TO PAY ALL OR ANY PART OF THE INDEBTEDNESS EVIDENCED HEREBY PRIOR TO THE
MATURITY DATE EXCEPT FOR THE PRIVILEGE EXPRESSLY RESERVED TO SO PREPAY, AS SET
FORTH IN THIS NOTE.
MAKER HEREBY ACKNOWLEDGES AND AGREES THAT HOLDER WOULD NOT LEND TO
MAKER THE LOAN EVIDENCED BY THIS NOTE WITHOUT MAKER'S AGREEMENT, AS SET FORTH
ABOVE IN THIS SECTION 4, TO PAY HOLDER A PREPAYMENT PREMIUM HEREUNDER, UPON THE
SATISFACTION OF ALL OR ANY PORTION OF THE PRINCIPAL INDEBTEDNESS EVIDENCED
HEREBY FOLLOWING
5
THE ACCELERATION OF THE MATURITY DATE HEREOF BY REASON OF A DEFAULT HEREUNDER,
INCLUDING, WITHOUT LIMITATION, A DEFAULT ARISING FROM THE CONVEYANCE OF ANY
RIGHT, TITLE OR INTEREST IN THE MORTGAGED PROPERTY ENCUMBERED BY THE MORTGAGES
IN VIOLATION OF THE MORTGAGE, AND MAKER HAS CAUSED THOSE PERSONS SIGNING THIS
NOTE ON MAKER'S BEHALF TO SEPARATELY SIGN THE AGREEMENT CONTAINED IN THIS
SECTION, SUBJECT TO SECTION 11.
XXXX XX REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc.,
its general partner
By:
Xxxxx Xxxxxx
Vice President
CALI SO. WEST REALTY ASSOCIATES, L.P.
By: Cali Sub XIII, Inc.,
its general partner
By:
Xxxxx Xxxxxx
Vice President
5. Acceleration Upon Transfer. Maker has represented and warranted
and does hereby represent and warrant that as of the date hereof Maker is a
limited partnership duly organized and validly existing under the laws of the
State of New York and is wholly-owned (directly or indirectly) by Cali Realty,
L.P. ("CRLP") and Cali Realty Corporation (the "REIT"). Maker understands and
acknowledges that Holder, in making the loan evidenced by this Note, is relying
to a material extent upon the business expertise and net worth of CRLP and the
REIT (subject to the terms of Section 11 below) and upon the continuing interest
which CRLP and the REIT shall have in the Mortgaged Property securing this Note.
Accordingly, in the event CRLP and the REIT, shall, directly or indirectly,
voluntarily or involuntarily, sell, assign, transfer, dispose of, enter into any
ground or underlying lease and lease back or further encumber or suffer to exist
any lien (other than the lien of the Mortgage as security for this Note or the
lien of any other mortgage in favor of Holder) against all or any portion of or
any interest in the Mortgaged Property, except as otherwise expressly permitted
under the Mortgage, or in the event the composition or control of Maker is
changed (including, without limitation, the transfer of any interest in Maker or
portion of such interest or the change in control or composition of any partner
in Maker, provided that the
6
foregoing shall not apply to a change in control or composition of CRLP or the
REIT), then, or at any time thereafter, Holder, at its option, may declare the
entire indebtedness evidenced hereby and/or payable under the Mortgage and/or
any other document evidencing or securing this Note, in default and immediately
due and payable and may exercise any other remedies for default set forth herein
or in any document which secures the indebtedness evidenced hereby, provided
that the foregoing will not apply to any transfer of the Mortgaged Property or
interest in Maker to one or more wholly-owned subsidiaries of CRLP or the REIT.
6. Acceleration Upon Default. If default is made in the payment of
any installment under this Note or if default is made in the performance of any
of the terms, conditions, representations, covenants or warranties contained
herein or in the Mortgage or any other documents evidencing or securing the loan
evidenced hereby, and upon the expiration of any applicable grace period, then
in either such event, at the option of Holder, the entire principal sum
evidenced hereby and secured by the Mortgage, together with interest accrued and
unpaid thereon, and all other sums then outstanding under this Note or the
Mortgage, without notice, shall immediately become due and payable. Failure to
exercise this option by Holder shall not constitute a waiver of the right to
exercise same in the event of any subsequent default.
7. Default Interest. In the event (a) Maker fails to make any
payment hereunder, under the Mortgage or under any other agreement or instrument
evidencing or securing the loan evidenced hereby, or (b) of any default
hereunder or under the Mortgage or under any other agreement or instrument
evidencing or securing the loan evidenced hereby and, in the case of either (a)
or (b), upon acceleration of the entire indebtedness aforesaid, fixed interest
shall accrue thereafter on the unpaid principal balance together with any
accrued but unpaid interest thereon from and including the date of such default
(until the date such default is cured and the indebtedness is reinstated) at the
Default Rate, such interest to be compounded annually. Such interest shall be
paid on demand.
8. Late Charges. In addition to the foregoing, if Maker shall fail
to make any payment of interest or principal or other sum, including, without
limitation, payments due on maturity, on or before the date any such payment is
due, a late charge by way of damages shall be immediately due and payable. Maker
recognizes that default by Maker in making the payments herein or in the
Mortgage or in any other document securing this Note agreed to be paid when due
will result in Holder incurring additional expense in servicing the loan, in
loss to Holder of the use of the money due and in frustration to Holder in
meeting
7
its loan commitments. Maker agrees that, if for any reason Maker fails to pay on
the date due any amount due under this Note or under the Mortgage or under any
other document securing this Note, Holder shall be entitled to damages for the
detriment caused thereby, but that it is extremely difficult and impractical to
ascertain the extent of such damages. Maker therefore agrees that a sum equal to
five cents ($.05) for each one dollar ($1.00) of each payment which is not paid
when due is a reasonable estimate of the said damages to Holder, which sum shall
be payable by Maker on demand and shall be secured by the Mortgage.
9. Costs of Collection; Attorneys' Fees. Maker shall pay all costs
of collection incurred, whether or not an action or suit be filed, to enforce
this Note, including but not limited to reasonable attorneys' fees. If any suit
or action be instituted on this Note, Maker promises to pay Holder, in addition
to the costs and disbursements allowed by law, such sum as the court may adjudge
reasonable as attorneys' fees in said suit or action.
10. Waivers. Maker and all endorsers hereof and all others who may
become liable for all or any part of this obligation agree hereby to be jointly
and severally bound, and they jointly and severally waive and renounce, to the
extent permitted by law, any and all homestead and exemption rights and the
benefits of all valuation and appraisement privileges as against this
indebtedness and any renewal or extension thereof and waive demand, protest,
notice of nonpayment and any and all lack of diligence or delays in collection
or enforcement hereof, waive the right to plead any and all statutes of
limitation as a defense to any demand on this Note or under the Mortgage and
expressly consent to any extension of time, release of any party liable for this
obligation, release of any of the security of this Note, acceptance of other
security therefor, or any other indulgence or forbearance whatsoever. Any such
extension, release, acceptance, indulgence or forbearance may be made without
notice to any party and without in any way affecting the personal liability of
any party.
11. Non-Recourse. Notwithstanding any provisions in this Note or in
the Mortgage or in any other document securing this Note (except as provided in
the immediately succeeding paragraph), it is expressly understood and agreed
that if Holder at any time takes action to enforce the collection of the
indebtedness evidenced by this Note, the Mortgage, the Cross-collateral
Mortgages and any other documents securing this Note, Holder will proceed to
foreclose the Mortgage and/or one or more of the Cross-collateral Mortgages and
to exercise its remedies with respect to other collateral securing this Note.
If, as a result of such foreclosure and sale of the property described therein,
a
8
lesser sum is realized therefrom than the amount then due and owing hereunder
and under the Mortgage, the Cross-collateral Mortgages and any other documents
securing this Note, Holder will never (except as expressly provided in the
immediately succeeding paragraph) institute any action, suit, claim or demand in
law or in equity against Maker or its partners or members or any of the
officers, directors, shareholders or employees of Maker or its partners or
members seeking personal liability for or on account of such deficiency.
Nothing contained in the immediately preceding paragraph will in any
way affect or impair (i) the lien of the Mortgage, the Cross-collateral
Mortgages or any lien on other collateral, Holder's ability to foreclose the
Mortgage, the Cross-collateral Mortgages or any lien on other collateral, or any
representation or warranty of title made by Maker, all of which will remain in
full force and effect and inure to the benefit of Holder and to the benefit of
any insurer of title to the Mortgaged Property; (ii) Holder's rights under any
master lease, any indemnity agreement or any guarantee given by Maker or the
partners, members or principals of Maker to Holder in connection with the
indebtedness evidenced by this Note; (iii) Holder's right to present and collect
on any letter of credit given in connection with the indebtedness evidenced by
this Note; or (iv) Maker's personal liability for the indebtedness evidenced by
this Note if at the time of acceleration of the indebtedness or foreclosure of
the Mortgage and sale of the Mortgaged Property, Maker is in default under any
of the provisions of sections 62, 63 or 64 of the Mortgage (being the sections
relating to Environmental Laws as defined therein) and such default has an
adverse effect on the value of the Mortgaged Property, but such personal
liability shall be only to the extent of the loss in value of the Mortgaged
Property resulting from such failure to comply with the provisions of such
sections. Further, the following are excluded and excepted from the provisions
of the immediately preceding paragraph and Holder may recover personally against
Maker for the following:
(1) all losses, damages or liabilities suffered by Holder arising
out of any fraud or willful or intentional misrepresentation by Maker or any of
the Maker's partners, members or principals in connection (i) with Maker's
performance or fulfillment of any of Holder's conditions to or requirements in
advancing the indebtedness evidenced by this Note or otherwise with Maker's
inducements to Holder to advance such indebtedness; (ii) with the execution and
delivery of any of the documents evidencing or securing the indebtedness
evidenced by this Note; (iii) with the making of any representations or
warranties (which are in addition to the representations and warranties of title
in the Mortgage covered under the preceding paragraph) contained in
9
any of the documents evidencing or securing the indebtedness evidenced by this
Note; or (iv) with Maker's performance of any of its obligations under any of
the documents evidencing or securing the indebtedness evidenced by this Note;
(2) all rents and other revenues, payments or reimbursements
("Income") of any kind whatsoever (including all payments and contributions from
tenants for taxes, insurance, operating expenses and common area maintenance
charges) derived from the Mortgaged Property after a default by Maker (whether
or not notice of such default has been given) under any of the documents
evidencing or securing the indebtedness evidenced by this Note or on deposit on
the date such default occurs in one or more accounts used by Maker or Maker's
agents, representatives or property manager in connection with the operation of
the Mortgaged Property, except to the extent properly applied (as documented by
evidence reasonably satisfactory to Holder) to the normal and customary expenses
and operations of the Mortgaged Property;
(3) all security deposits collected by Maker (or any of Maker's
predecessors) and not properly refunded to tenants and all advance rents
collected by Maker (or any of Maker's predecessors) and not properly applied in
due course; proper refunding or application must be documented by evidence
reasonably satisfactory to Holder;
(4) the replacement cost of any items of personalty or any fixtures
removed from the Mortgaged Property, and not replaced with personalty or
fixtures of a like kind, value and utility, after Maker defaults under any of
the documents evidencing or securing the indebtedness evidenced by this Note;
(5) all losses, damages or liabilities suffered by Holder arising
from any acts of commission or omission by Maker that result in waste upon the
Mortgaged Property;
(6) all payments made by TIAA to discharge mechanic's liens,
materialmen's liens or any other liens arising from work performed on or
materials delivered to the Mortgaged Property prior to foreclosure of the
Mortgage and sale of the Mortgaged Property but only to the extent Holder had
advanced funds to pay for such work or materials and has not been reimbursed
therefor; and
(7) any insurance or condemnation proceeds attributable to the
Mortgaged Property that are not applied in accordance with the terms of the
Mortgage, or the Cross-collateral Mortgage and any insurance or condemnation
proceeds attributable to the Mortgaged Property that were not paid to
10
Holder when and to the extent required under the terms of the Mortgage or the
Cross-collateral Mortgages.
12. Loan F 1993 Amended Note. This Note has been issued by Maker to
replace the notes identified in Schedule I attached hereto, as assigned,
consolidated and modified as set forth on Schedule I. The effective date of the
modification effected by this instrument is the date hereof. The Holder of this
Note is entitled to the benefit of the Mortgage and the other mortgages referred
to in Section 13, to which reference is made for a description of the properties
and rights included in such security, the nature of such security and the rights
of the holders of this Note and Maker in respect of such security.
13. Mortgages. This Note is secured or to be secured by the Mortgage
covering the Mortgaged Property located in Greenburgh and Yonkers, County of
Westchester, State of New York. This Note is also secured by mortgages listed on
Schedule II attached hereto (the "Cross-collateral Mortgages") covering the
properties more particularly described therein.
14. Miscellaneous. (a) This Note is intended as a contract under and
shall be construed and enforced in accordance with the laws of the State of New
York.
(b) As used herein, the term "Maker" shall be deemed to include its
permitted successors, legal representatives and assigns, whether by voluntary
action by Maker or by the operation of law. As used herein, the term "Holder"
shall be deemed to include its successors, legal representatives and assigns,
whether by voluntary action by Holder or by the operation of law.
(c) References in this Note to any document or agreement shall be
deemed to include all subsequent amendments, modifications, consolidations,
restatements and replacements thereof.
(d) The headings used herein are for convenience of reference only
and shall not limit or otherwise affect any of the terms hereof.
11
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Amended and Restated First Replacement Mortgage Note as of the day and year
first above written acting through the undersigned general partner of the Maker,
said general partner being duly authorized so to act.
XXXX XX REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc.,
its general partner
By:
Xxxxx Xxxxxx
Vice President
CALI SO. WEST REALTY ASSOCIATES L.P.
By: Cali Sub XIII, Inc.,
its general partner
By:
Xxxxx Xxxxxx
Vice President
12
SCHEDULE I
ORIGINAL NOTES AND ORIGINAL MORTGAGES
13
SCHEDULE II
THE CROSS-COLLATERAL MORTGAGES
1. Separate Third Mortgage and Security Agreements, each dated as of July 28,
1993, for Xxxxxx Xxxxxx Company to Holder, each as amended by the
Supplemental Modification Agreement and by First Amendment to Third
Mortgage and Security Agreement and to Subordinate Assignment of Lessor's
Interest in Leases, dated as of December 30, 1996, between the LLC and
Holder, and each as amended and restated in its entirety by Amended and
Restated Cross-collateral Mortgage and Security Agreement, dated as of the
date hereof, between Maker and Holder, covering the Properties (other than
the Loan F Property and the Loan I Property (as such terms are defined in
the Third Loan Modification Agreement)).
2. Third Mortgage and Security Agreement, dated December 30, 1996, from the
LLC to Holder, covering the Loan I Property and as amended and restated in
its entirety by Amended and Restated Cross-collateral Mortgage and
Security Agreement, dated as of the date hereof, between Maker and Holder.
14
