EXHIBIT 2.7
AMENDED AND RESTATED SUBSTITUTE MORTGAGE NOTE NO. 1
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December 19, 1997
$15,500,000.00
FOR VALUE RECEIVED, and at the times hereinafter specified, 17
BATTERY UPPER PARTNERS LLC, a New York limited liability company ("MAKER"),
having an address at c/o GFI Realty Services, 00 Xxxxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Xxxxx X. Xxxxx, hereby promises to pay to the
order of XX XXXXX OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership, having an address at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (collectively, hereinafter referred to, together with each subsequent
holder(s) hereof, as "HOLDER"), or at such other address as may be designated
from time to time hereafter by any Holder, the principal sum of FIFTEEN
MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($15,500,000.00), together
with interest on the principal balance outstanding from time to time, as
hereinafter provided, in lawful money of the United States of America. The
balance (the "PRINCIPAL AMOUNT") of principal outstanding from time to time
under this mortgage note (this "NOTE") shall bear interest at a rate per
annum equal to twelve (12%) percent (the "INTEREST RATE"), calculated for the
actual number of days elapsed based on a 360-day year.
1. Payments. Maker shall pay the following sums as follows:
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(a) Interest. (i) Interest only at the Interest Rate on the
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Principal Amount shall be payable on the date hereof for the period from
and including the date hereof through and including December 31, 1997;
and
(ii) Interest only at the Interest Rate on the Principal
Amount shall be payable in arrears commencing on February 1, 1998, and
on the first day of each and every month thereafter up to and including
the Maturity Date (as defined herein); and
(b) Principal. The entire Principal Xxxxxx then remaining unpaid,
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with accrued and unpaid interest thereon, shall be due and payable on the
Maturity Date.
Each payment made by Maker under this Note shall be made before
2:00 p.m., New York City time, on the date when such payment or prepayment is
required to be made and shall be made without setoff, counterclaim, deduction
or defense of any kind by wire transfer of immediately available funds in
lawful money of the United States of America to such account or accounts as
shall be designated by Holder, from time to time. Any payment received and
accepted by Holder after 2:00 p.m., New York City time on any day shall be
deemed for all purposes (including the calculation of interest, to the extent
permitted by law) as having been made on the next succeeding Business Day.
If the date for any payment hereunder falls on a day which is not a Business
Day, then for all purposes hereof the same shall be deemed to have fallen on
the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest hereunder. The term
"BUSINESS DAY" shall mean a day other than a Saturday, Sunday or legal
holiday for commercial banks under the laws of the State of New York.
2. Maturity. The Loan shall mature on the earlier of (i) September
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30, 1998 or (ii) such date as the Loan shall become due by reason of
acceleration, operation of law or as otherwise set forth in the Mortgage
(as hereinafter defined). The date on which the Loan shall mature as
provided in the preceding sentence is referred to as the "MATURITY DATE."
3. Prepayment. This Note may be prepaid, in whole or in part, at any
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time and from time to time, without premium or penalty.
4. Default Rate/Late Charge. From and after the occurrence of an
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Event of Default, the entire Principal Amount, all accrued and unpaid interest
and all other sums then due or payable pursuant to this Note or any of the
other Loan Documents, shall bear interest from the date of such Event of
Default until paid at a per annum rate (the "DEFAULT RATE") equal to the lesser
of (i) five percent (5%) over the Interest Rate, or (ii) the Maximum Rate,
as herein defined. In addition to interest as set forth herein, Maker shall
pay Holder a late charge equal to five percent (5%) of any amounts due under
this Note in the event any such amount is not paid within five (5) days
after such payment becomes due.
5. Application of Payments.
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(a) All payments received by Holder under this Note shall be
applied as follows: first, to accrued and unpaid interest then due
hereunder; second, to all other sums then due or payable pursuant to this
Note or any of the other Loan Documents, in such order as shall be determined
by the Holder in its sole discretion from time to time; and third, to the
reduction of the Principal Xxxxxx.
(b) Notwithstanding anything to the contrary herein contained,
during the continuance of an Event of Default, Holder may apply any payment
received by Holder under this Note to such amounts and in such order as
Holder may elect from time to time in its sole discretion.
6. The Mortgage. This Note, and all sums due or agreed to be paid
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hereunder are secured by, inter alia, a certain Xxxxxxx and Restated
Substitute Mortgage, Assignment of Leases and Rents and Security Agreement No.
1 of even date herewith granted by Maker for the benefit of the named
Holder hereof (the "MORTGAGE"), encumbering certain property as more
particularly described in such Mortgage. Capitalized terms used and not
otherwise defined herein shall have the meanings set forth in the Mortgage.
7. Event of Default. The occurrence of an Event of Default shall
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constitute an "EVENT OF DEFAULT" hereunder. Upon the occurrence and
continuance of an Event of Default, Holder may, at its option, declare all
or any portion of the Principal Amount, together with all accrued and
unpaid interest hereon, and all other amounts payable hereunder or under the
Mortgage or any of the Loan Documents, to be immediately due and payable
and thereby accelerate the maturity hereof, and Holder may proceed to
exercise any rights or remedies that it may have under this Note, the
Mortgage, or any other Loan Document or such other rights and remedies which
Holder may have at law, equity or otherwise.
8. Enforceable Obligation. Maker hereby certifies and declares that
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all acts, conditions and things required to be done and performed and to have
happened precedent to the creation and issuance of this Note, and to
constitute this Note the legal, valid and binding obligation of Maker,
enforceable in accordance with the terms hereof, have been done and performed
and happened in due and strict compliance with all Legal Requirements.
9. Affirmative Waivers. Maker and all parties now or hereafter liable
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for the payment hereof, primarily or secondarily, directly or indirectly, and
whether as endorser, guarantor, surety, or otherwise, hereby severally
(a) waive presentment, demand, protest, notice of protest and/or dishonor,
and all other demands or notices of any sort whatsoever with respect to this
Note, (b) consent to impairment or release of collateral, extensions of time
for payment, and acceptance of partial payments before, at, or after
maturity, (c) waive any right to require Holder to proceed against any
security for this Note before proceeding hereunder, (d) waive diligence to the
collection of this Note or in filing suit on this Note and (e) agree to pay
all costs and expenses, including reasonable attorneys' fees, which may be
incurred in the collection of this Note, or any part thereof or in
preserving, securing possession of, and realizing upon any security for this
Note.
10. Usury. The provisions of this Note and of all agreements between
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Maker and Holder are, whether now existing or hereinafter made, hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of the maturity hereof, prepayment, demand for
payment or otherwise, shall the amount paid, or agreed to be paid, to
Holder for the use, forbearance, or detention of the principal hereof or
interest hereon, which remains unpaid from time to time, exceed the
maximum interest rate permissible under applicable law (the "MAXIMUM
RATE"). If from any circumstance whatsoever, the performance or
fulfillment of any provision hereof or of any other agreement between
Maker and Holder shall, at the time performance or fulfillment of such
provision is due, involve or purport to require any payment in excess of
the limits prescribed by law, then the obligation to be performed or
fulfilled is hereby reduced to the limit of such validity, and if from any
circumstance whatsoever Holder should ever receive as interest an amount
which would exceed the highest lawful rate, the amount which would be excessive
interest shall be applied to the reduction of the Principal Amount (or, at
Holder's option, be paid over to Maker) and shall not be counted as
interest. To the extent permitted by applicable law, determination of the
legal maximum amount of interest shall at all times be made by amortizing,
prorating, allocating and spreading in equal parts during the period of the
full stated term of this Note, all interest at any time contracted for,
charges, or received from Maker in connection with this Note and all other
agreements between Maker and Holder, so that the actual rate of interest on
account of the indebtedness represented by this Note is uniform throughout
the term hereof.
11. Non-Recourse Obligations. Notwithstanding anything in this Note,
_________________________
the Mortgage or the other Loan Documents, no personal liability shall be
asserted or enforceable against (i) Maker, (ii) any Affiliate (as
defined in the Mortgage) of Maker, (iii) any Person (as defined in the
Mortgage) owning directly or indirectly, any legal or beneficial interest
in Maker or any Affiliate of Maker, or (iv) any partner, principal,
officer, controlling person, beneficiary, trustee, advisor, shareholder,
employee, agent, Affiliate or director of any Persons described in clauses
(i) through (iii) above (individually, an "EXCULPATED PARTY" and,
collectively, the "EXCULPATED PARTIES") by Holder in respect of the Secured
Obligations, this Note, the Mortgage, or any other Loan Document, or the
making, issuance or transfer thereof, all such liability, if any, being
expressly waived by Holder and each successive holder of this Note and the
Mortgage shall accept this Note and the Mortgage upon the express condition
of this provision and limitation that in the case of the occurrence and
continuance of an Event of Default, Xxxxxx's remedies in its sole discretion
shall be any or all of:
(a) Foreclosure of the lien of the Mortgage in accordance with the
terms and provisions set forth in the Mortgage;
(b) Action against any other security at any time given to secure
the payment of this Note and under the other Loan Documents; and
(c) Exercise of any other remedy set forth in the Mortgage or any
other Loan Document.
The lien of any judgment against Maker and any proceeding
instituted on, under or in connection with this Note or the Mortgage, or
both, shall not extend to any property now or hereafter owned by Maker or any
Exculpated Party other than the Rents from, and the ownership interest of
Maker in, the Property and the other security for the payment of this Note or
the Mortgage.
Notwithstanding anything to the contrary in this Note or any of the
Loan Documents, Holder shall not be deemed to have waived any right which
Holder may have under Section 506(a), 506(b), 1111(b) or any other provisions
of the Bankruptcy Code to file a claim for the full amount of the Secured
Obligations or to require that all collateral shall continue to secure all of
such Secured Obligations owing to Holder in accordance with the Loan
Documents.
Notwithstanding anything in this Note or the Mortgage to the
contrary: (A) no provision of this Note or the Mortgage shall be construed or
be deemed to limit or impair the enforcement of or liability of Maker and/or
the Guarantors under the Environmental Indemnity Agreement or the liability
of Maker and/or the Guarantors under the Guaranty, as the case may be; and
(B) there shall at no time be any limitation on Maker's or the Guarantors'
liability for the payment to Holder of any and all actual losses, damages,
costs and/or expenses incurred by Xxxxxx and arising from: (1)
misappropriation by Maker or any Affiliate of Maker of any condemnation
proceeds or insurance proceeds which Maker or any Affiliate of Maker has
received and to which Holder is entitled pursuant to the terms of the
Mortgage or any of the Loan Documents to the extent the same have not been
applied toward payment of sums due under this Note or under the Mortgage, or
used for the repair or replacement of the Property pursuant to the Mortgage,
or (2) any fraud, or intentional misrepresentation of Maker or any Affiliate
of Maker, or (3) any misappropriation of Rents or security deposits by Maker
or any Affiliate of Maker, or (4) any intentional physical waste in
connection with Maker's or any Affiliate of Maker's operation of the
Property, or (5) Maker's failure to maintain in full force and effect any of
the insurance policies required to be maintained under the Mortgage, or (6)
Maker's failure to pay any taxes required to be paid under the Mortgage.
12. Amendment and Restatement of Existing Note(s). This Note con-
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solidates, amends and restates in their entirety the terms and provisions
of those certain promissory notes as more fully described on Exhibit A attached
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hereto (said mortgage notes being hereinafter collectively called the
"EXISTING NOTES") so that this Note shall hereafter constitute evidence
of but one debt in the principal amount of Fifteen Million Five
Hundred Thousand and 00/100 ($15,500,000.00) Dollars. The conditions
contained in this Note shall supersede and control the terms, covenants,
agreements, rights, obligations and conditions of the Existing Notes (it
being agreed that the modification of the Existing Notes shall not impair
the debt evidenced by each of the Existing Notes). This Note does not
create any new or additional indebtedness but evidences the same
indebtedness evidenced by the Existing Notes and secured by the Mortgage.
13. Miscellaneous.
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(a) Expenses. Maker shall pay all costs and expenses of collection
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incurred by Holder in connection with this Note, in addition to the entire
Principal Amount, all accrued and unpaid interest at the Default Rate and all
other sums then due or payable pursuant to this Note or any of the other Loan
Documents, including, without limitation, reasonable attorneys' fees and
disbursements and all other costs and expenses incurred in connection with
the pursuit by Xxxxxx of any of its right or remedies referred to herein or
the protection of or realization of collateral or in connection with any of
Holder's collection efforts, whether or not suit on this Note, on any of the
other Loan Documents or any foreclosure proceeding is filed, and all such
costs and expenses shall be payable within ten (10) days after Maker's
receipt of a statement therefor from Holder and also shall be secured by the
Mortgage and the other Loan Documents.
(b) Partial Invalidity. If any provision hereof or of any other Loan
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Document is, for any reason and to any extent, determined to be invalid or
unenforceable with respect to any person, entity or circumstance, then
neither the remainder of the document in which such provision is contained,
nor the application of the provision to other persons, entities, or
circumstances, nor any other document referred to herein, shall be affected
thereby, but instead shall be enforceable to the maximum extent permitted by
law.
(c) Continuing Effect. Each provision of this Note shall be and
_________________
remain in full force and effect notwithstanding any negotiation or transfer
hereof or any interest herein to any other Holder or participant.
(d) Governing Law; Consent to Jurisdiction. This Note shall be
________________________________________
governed and construed in accordance with the laws of the State of New York,
without regard to the principles of conflict of laws. To the fullest
extent permitted by law, Maker hereby unconditionally and irrevocably waives
any claim to assert that the law of any other jurisdiction governs this
Note. Any legal suit, action or proceeding against Maker or Holder arising
out of or relating to this Note may be instituted in any federal or state
court in New York, New York, pursuant to Section5-1402 of the New York
General Obligations Law, and Maker waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding
and Maker hereby irrevocably submits to the jurisdiction of any such court in
any suit, action or proceeding. By execution and delivery of this Note, Maker
accepts, generally and unconditionally, the nonexclusive jurisdiction of the
aforesaid courts and irrevocably agrees to be bound by any final judgment
rendered thereby in connection with this Note or the Mortgage from which no
appeal has been taken or is available. Maker irrevocably agrees that all
process in any proceeding or any court arising out of or in connection with
this Note, the Mortgage or any other Loan Document may be effected by mailing
a copy thereof by registered or certified mail or any substantially similar
form of mail, postage prepaid, to Maker at its address referred to in the
"Notices" Section of the Mortgage or such other address of which Holder
shall have been notified pursuant to said subsection. Such service shall
be effective five days after such mailing. Maker hereby acknowledges that
such service will be effective and binding service in every respect. Maker
shall not assert that such service did not constitute effective and
binding service within the meaning of any applicable state or federal law,
rule, regulation or the like. Maker hereby irrevocably waives any objections,
including without limitation any objection to the laying of venue or based on
the grounds of forum non conveniens which it may now or hereafter have to the
bringing of any such action or proceeding in any such jurisdiction.
Nothing herein shall affect the right of Holder to serve process in any
other manner permitted by law or limit the right of Holder to bring any
action, suit or proceeding against Maker in the court of any jurisdiction.
Maker acknowledges that final judgment against it in any action, suit or
proceeding referred to in this paragraph shall be conclusive and may be
enforced in any other jurisdiction, by suit on the judgment, a certified or
exemplified copy of which shall be conclusive evidence of the fact and of
the amount of Maker's indebtedness.
(e) Waiver of Jury Trial. MAKER AND HOLDER KNOWINGLY, IRREVOCABLY,
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VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS NOTE,
OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE MORTGAGE, OR
ANY OTHER LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR TO
ANY LOAN DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOLDER TO
ENTER INTO THE LOAN TRANSACTION EVIDENCED BY THIS NOTE.
(f) No Waiver. Any forbearance by Holder in exercising any right or
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remedy hereunder or under any of the Loan Documents or otherwise afforded by
applicable law, shall not be a waiver or preclude the exercise of any right
or remedy by Xxxxxx. No failure to accelerate the indebtedness evidenced
hereby by reason of an Event of Default, or acceptance of a past due
installment, or indulgence granted from time to time shall be construed to be
a waiver of the right to insist upon prompt payment, nor shall it be deemed
to be a novation of this Note or a reinstatement of the indebtedness
evidenced hereby or as a waiver of such right of acceleration or any other
right, nor be construed so as to preclude the exercise of any right that
Holder may have, at law or in equity, and Maker hereby expressly waives the
benefit of any statute or rule of law or equity which would produce a result
contrary to or in conflict with the foregoing.
(g) Modification in Writing. This Note may not be modified,
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amended, waived, extended, changed, discharged or terminated orally or by
any act or failure to act on the part of Maker or Holder, but only by an
agreement in writing signed by the party against whom enforcement of
any modification, amendment, waiver, extension, change, discharge or
termination is sought.
IN WITNESS WHEREOF, Xxxxx has duly executed this Note as of the date
first above written.
MAKER:
17 BATTERY UPPER PARTNERS LLC
By: 17 BATTERY ASSOCIATES LLC, its manager
By: 17 Diamond Corp., its manager
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
CONSENTED AND AGREED TO BY:
XX XXXXX OPERATING PARTNERSHIP, L.P.
By: XX Xxxxx Realty Corp., its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
EXHIBIT A
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Schedule of Existing Notes
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1. Note, dated the 9th day of June, 1986, made by 17 Battery Place North
Associates II to Connecticut Mutual Life Insurance Company in the principal
of $6,500,000.00; said Note being assigned by Assignment of Mortgage from
Massachusetts Mutual Life Insurance Company, successor by merger to
Connecticut Mutual Life Insurance Company, -to- CS First Boston Mortgage
Capital Corp., dated as of 3/21/96 and recorded in the Office of the City
Register, County of New York (the "CITY REGISTER'S OFFICE") on 3/27/96 in
Reel 2307 Page 1103.
2. Gap Note, dated the 22nd day of March, 1996, made by Downtown Acquisition
Partners, L.P. to CS First Boston Mortgage Capital Corp. in the principal sum
of $18,500,000.00.
3. Consolidated and Restated Mortgage Note, dated the 22nd day of March,
1996, made by Downtown Acquisition Partners, L.P. to CS First Boston Mortgage
Capital Corp. in the principal sum of $25,000,000.00. Consolidates Note Nos.
1 and 2.
Consolidated Note Nos. 1 and 2 were assigned pursuant to Assignment of
Mortgage from Credit Suisse First Boston Mortgage Capital LLC (successor by
merger to CS First Boston Mortgage Capital Corp.) ("CSFBMC") -to- The Chase
Manhattan Bank ("CMB"), as trustee under that certain Pool 1 Pooling and
Servicing Agreement dated as of 4/25/97 by and among Credit Suisse First
Boston Mortgage Securities Corp., CMB, SunAmerica Life Insurance Company,
Anchor National Life Insurance Company, CSFBMC and the servicer named therein
(the "POOL 1 POOLING AND SERVICING AGREEMENT"), which Assignment of Mortgage
was dated as of 4/25/97 and recorded in the City Register's Office on 6/6/97
in Reel 2463 Page 793.
Consolidated Note Nos. 1 and 2 were further assigned pursuant to
Assignment of Mortgage, dated as of December 19, 1997, from The Chase
Manhattan Bank, as trustee under the Pool 1 Pooling and Servicing Agreement,
to XX Xxxxx Operating Partnership, L.P. and intended to be recorded in the
City Register's Office prior to the recordation of the Modification and
Splitter Agreement (as defined below).
As modified by that certain Release of Xxxxxxxxx, dated as of December 19,
1997 from XX Xxxxx Operating Partnership, L.P. to SLG 17 Battery LLC, whereby
SLG 17 Battery LLC was released from all obligations.
As modified and split purusuant to that certain Modification and Splitter
Agreement, dated as of December 19, 1997, between XX Xxxxx Operating
Partnership, L.P., as mortgagee, and 17 Battery Upper Partners LLC, as
mortgagor (the "MODIFICATION AND SPLITTER"), and intended to be recorded in
the City Register's Office; which Modification and Splitter modified and
split the above-referenced $25,000,000 consolidated notes (i.e. Note Nos. 1
and 2) and the mortgages securing same into:
(i) (x) an Amended and Restated Substitute Mortgage, Assignment of
Leases and Rents and Security Agreement No. 1 ("SUBSTITUTE MORTGAGE NO.
1"), dated as of December 19, 1997, between XX Xxxxx Operating
Partnership, L.P., as mortgagee, and 17 Battery Upper Partners LLC, as
mortgagor, and (y) an Amended and Restated Substitute Mortgage Note No.
1 in a reduced principal amount of $15,500,000 ("SUBSTITUTE NOTE NO.
1"), dated as of December 19, 1997, made by 17 Battery Upper Partners
LLC to XX Xxxxx Operating Partnership, L.P., to which this Exhibit A is
attached, which Substitute Note No. 1 amends and restates consolidated
Note Nos. 1 and 2 to the extent of $15,500,000.00; and
(ii) (x) an Amended and Restated Substitute Mortgage No. 2
("SUBSTITUTE MORTGAGE NO. 2"), dated as of December 19, 1997, between XX
Xxxxx Operating Partnership, L.P., as mortgagee, and 17 Battery Upper
Partners LLC, as mortgagor, and (y) an Amended and Restated Substitute
Mortgage Note No. 2 in a reduced principal amount of $9,500,000
("SUBSTITUTE NOTE NO. 2"), dated as of December 19, 1997, made by 17
Battery Upper Partners LLC to XX Xxxxx Operating Partnership, L.P.,
which Substitute Note No. 2 amends and restates Notes Nos. 1 and 2 to
the extent of $9,500,000.00. Such Substitute Note No. 2 is a separate
instrument and is not included in the note to which this Exhibit A is
attached.
State of New York )
) ss.:
County of New York )
On the 19th day of December, in the year 1997, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxx X. Xxxxx,
personally known to me or proved to me on the basis of satisfactory evidence
to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
___________________________
Notary Public
State of New York )
) ss.:
County of New York )
On the 19th day of December, in the year 1997, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxxxx X. Xxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence
to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
___________________________
Notary Public
