EXHIBIT 10.47
NOTE AND MORTGAGE MODIFICATION AND SPREADER AGREEMENT
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NOTE AND MORTGAGE MODIFICATION AND SPREADER AGREEMENT, dated as
of December 29, 1995, between KENVIC ASSOCIATES ("Mortgagor"), a New York
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general partnership, having an address c/o Madison Equities, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, and XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
("Mortgagee"), a Massachusetts corporation, having its principal office at
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Xxxx Xxxxxxx Place, Post Office Xxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Real Estate Investment Group, T-53.
WITNESSETH THAT:
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WHEREAS, Mortgagor is, on the date of delivery hereof, (a) the
owner of fee title to a parcel of land and the improvements thereon known as
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and the easements appurtenant thereto
(collectively, the "Fee Parcel"), all as more particularly described in Exhibit
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A-1 hereto, and (b) the lessee under the Corner Parcel Lease for the Corner
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Parcel and all Improvements thereon (as such terms are defined in the Mortgage,
as hereinafter defined), which Corner Parcel is contiguous to the Fee Parcel and
is more particularly described on Exhibit A-2 hereto;
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WHEREAS, Mortgagee is on the date hereof the owner and holder of
the mortgages described in Exhibit B hereto, which mortgages were consolidated,
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extended and modified pursuant to that certain Consolidation, Extension and
Modification Agreement (the "Consolidation Agreement"), dated as of May 11,
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1988, between Mortgagor and Mortgagee, recorded on May 14, 1988 in the Office of
the City Register, New York County (the "Register's Office") in Reel 1403,
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Page 1793, so as to form a single first lien on the Mortgaged Premises in the
amount of $180,000,000, and were further modified (i) pursuant to that certain
Modification Agreement, dated as of May 30, 1990, between Mortgagor and
Mortgagee, recorded on June 25, 1990 in the Register's Office in Reel 1705, Page
1760 (the "1990 Modification Agreement"), and (ii) pursuant to that certain
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Note and Mortgage Modification Agreement, dated as of July 23, 1992, between
Mortgagor and Mortgagee, recorded on July 30, 1992 in the Register's Office in
Reel 1892, Page 434 (the "1992 Modification Agreement");
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WHEREAS, the Mortgage (as such term is defined in Section 11
hereof) secures, among other things, the payment of the principal of and
premium, if any, and interest on the Notes
(as such term is defined in Section 11 hereof) in accordance with the terms of
the Notes and the Mortgage;
WHEREAS, Mortgagor and Mortgagee desire to spread the lien of the
Mortgage from the Fee Parcel to cover both the Fee Parcel and the leasehold
estate of Mortgagor in and to the Corner Parcel (including the Improvements
thereon) pursuant to the Corner Parcel Lease; and
WHEREAS, Mortgagor and Mortgagee desire to further modify certain
terms and conditions of the Notes and the Mortgage in the manner set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Mortgagor and Mortgagee hereby
agree as follows:
1. Definitions.
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(a) Any capitalized term used in this Agreement and not defined
herein shall have the respective meaning assigned to such term in the Notes or
in the Mortgage. Each term defined below, when used in this Agreement, in the
Mortgage, the Notes or in any of the other Loan Documents, shall have its
respective meaning set forth below.
(b) "Affiliate" or "affiliate" of a Person shall mean any Person
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which directly or indirectly controls, is controlled by or is under common
control with such Person. The term "control" shall mean the possession, directly
or indirectly, of the power or ability to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, partnership interests or other beneficial interests or by contract
or otherwise.
(c) The term "Application" shall mean the Application by Mortgagor
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to Mortgagee dated October 2, 1995 and countersigned by Mortgagee on October 16,
1995.
(d) The term "Assignment of Leases" shall mean the Assignment of
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Leases, dated as of May 11, 1988, between Mortgagor and Mortgagee, recorded in
the Register's Office on May 18, 1988 in Reel 1403, Page 1899, as amended,
modified or supplemented from time to time.
(e) The term "Assignment of Rents" shall mean the Assignment of
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Rents, dated as of May 11, 1988, between Mortgagor and Mortgagee, recorded in
the Register's Office on May 18, 1988 in Reel 1403, Page 1886, as amended,
modified or supplemented from time to time.
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(f) The term "Borrower's Certificate" shall mean the Borrower's
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Certificate, dated as of the date hereof, executed and delivered by Mortgagor in
connection with this Agreement.
(g) The term "Cash Collateral Agreement" shall mean the Cash
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Collateral Agreement, dated as of the date hereof, between Mortgagor and
Mortgagee, as amended, modified or supplemented from time to time.
(h) The term "Controlling Party" shall mean any Person or Persons,
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whether directly or indirectly, exercising control over the business, management
and operations of, or having the right to make, direct or veto significant
business decisions for, Mortgagor, including (without limitation) through
ownership or acquisition of equity interests or other beneficial interests in
Mortgagor, through the exercise of rights contained in the Governing Documents
of Mortgagor, through the amendment or modification of the Governing Documents
of Mortgagor, or otherwise by contract or agreement, provided that a Person
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shall not be deemed to be a Controlling Party solely by virtue of its acting as
manager or managing agent of the Mortgaged Premises.
(i) The term "Corner Parcel Lease" shall mean the Lease, dated as
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of March 25, 1981 between Mortgagor (as lessor) and 000 Xxxxx Xxxxxx Associates
(as lessee), the lessee's interest in which was assigned to Mortgagor and the
lessor's interest in which was assigned to Mortgagee on July 17, 1984, as such
lease was amended by a First Amendment to Lease, dated as of July 17, 1984
between Mortgagor (as lessor) and 875 Third Associates (as lessee), and a Second
Amendment to Lease, dated as of May 11, 1988, a Third Amendment to Lease, dated
as of May 30, 1990, a Fourth Amendment to Lease, dated as of July 23, 1992, and
a Fifth Amendment to Lease, dated as of the date hereof, each between Mortgagee
(as lessor) and Mortgagor (as lessee), and as such Lease may hereafter be
amended, modified, supplemented or assigned.
(j) The term "Declarations" shall mean, collectively, the Zoning
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Declaration, the Transit Authority Agreement, the Special Permit and the
Declaration of Easement (as such terms are defined in Section 2.18 of the
Mortgage) as amended, modified or supplemented from time to time.
(k) The term "Environmental Indemnity" shall mean the
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Environmental Indemnity and Agreement, dated as of the date hereof, between
Mortgagor and Mortgagee, as amended, modified or supplemented from time to time,
which agreement has been attached hereto as Exhibit D and shall be deemed to be
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incorporated in, and made a part of, the Mortgage.
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(l) The term "Fifth Amendment to Lease" shall mean the Fifth
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Amendment to Lease, dated as of the date hereof, between Mortgagee (as lessor)
and Mortgagor (as lessee), with respect to the Corner Parcel Lease.
(m) The term "Governing Documents" of a Person shall mean (as
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applicable) the articles or certificate of incorporation, by-laws, business
certificate, limited partnership certificate, articles of organization, general
partnership agreement, limited partnership agreement, joint venture agreement,
operating agreement or other organizational and/or governing documents of such
Person.
(n) The term "Loan Documents" shall mean, collectively, the Notes,
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the Consolidation Agreement, the Mortgage, the 1990 Modification Agreement, the
1992 Modification Agreement, this Agreement, the Cash Collateral Agreement, the
Environmental Indemnity, the Borrower's Certificate, the Assignment of Rents,
the Assignment of Leases, the Side Letter, and any other documents, instruments
or agreements entered into pursuant to any such documents, or in connection
therewith.
(o) The term "1995 Modification Documents" shall mean,
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collectively, this Agreement, the Cash Collateral Agreement, the Environmental
Indemnity, the Borrower's Certificate, the Fifth Amendment to Lease and all
other documents, instruments or agreements entered into pursuant thereto or in
connection therewith.
(p) The term "Permitted Controlling Party" shall mean (i) Xxxxxxx
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Gladstone, (ii) a Gladstone Entity, as defined in Section 5 hereof, or (iii) any
Person the financial capacity, creditworthiness, property management ability and
expertise, and general reputation of which, as a potential Controlling Party,
shall be subject to the prior written approval of Mortgagee, which approval
shall not be unreasonably withheld, delayed or conditioned.
(q) The term "Permitted Transferee" shall mean any transferee
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pursuant to a Transfer made in accordance with subparagraphs (A)(i), (A)(ii) or
(A)(iii) of Section 5.01(n) of the Mortgage (as amended by Section 5 of this
Agreement).
(r) The term "Person" shall mean an individual, partnership,
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corporation, limited liability company, trust, unincorporated association, joint
venture, or other entity of whatever nature.
(s) The term "Side Letter" shall mean the letter agreement, dated
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as of the date hereof, between Mortgagor and
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Mortgagee relating to real property tax escrow payments and certain other
matters.
(t) The term "Title Commitment" shall mean the Commitment for
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Title Insurance (Title No. NY950545) relating to the Mortgaged Premises, dated
as of December 29, 1995, issued by Commonwealth Land Title Insurance Company.
2. Modification of Notes.
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(a) The section of the Consolidation Agreement entitled "Part A.
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Consolidation, Extension and Modification of Existing Notes", set forth on page
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3 of the Consolidation Agreement, is hereby amended to provide that the Existing
Notes have been modified and extended to (i) bear interest at the rate of 8.75%
per annum from and after January 1, 1996; (ii) bear interest, while any Event of
Default exists under the Notes or the Mortgage, at the rate of 13.75% per annum
from and after January 1, 1996; (iii) provide for payment (A) on January 10,
1996, of interest due under the Notes at the rate of 9.75% per annum for the
period from December 1, 1995 through and including December 31, 1995, (B) on the
first day of each calendar month commencing on February 1, 1996 and ending on
January 1, 2000, of installments of interest only in the amount of One Million
Three Hundred Twelve Thousand Five Hundred Dollars ($1,312,500) each, to be
applied to accrued interest on the Notes, (C) on the first day of each calendar
month from and after February 1, 2000 through and including December 1, 2002, of
installments of combined principal and interest in the amount of One Million
Four Hundred Sixteen Thousand Sixty Dollars and Seventy-Three Cents
($1,416,060.73), with each of such installments to be applied first to the
payment of accrued interest under the Notes, and then to the reduction of the
outstanding principal amount due under the Notes, and (D) on January 1, 2003,
of the entire outstanding principal amount due under the Notes, together with
all interest accrued thereon, and all other sums and amounts payable in respect
of the Notes and the Mortgage; (iv) be subject to prepayment as provided in
Article 1 of the Mortgage, as amended pursuant to Section 3 hereof, and (v) be
in the form of Exhibit 1 attached to the Consolidation Agreement, as such
Exhibit 1 shall be amended pursuant to Sections 2(b) and 2(c) of this Agreement.
(b) The Notes, and the form of Note attached as Exhibit 1 to the
Consolidation Agreement, shall be amended by deleting the first seven (7)
paragraphs of language therefrom (beginning with "FOR VALUE RECEIVED . . ." and
ending with ". . . accrued to the date fixed for such prepayment, without
premium."), and by inserting, in lieu thereof, the text set forth on Exhibit C
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attached hereto.
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(c) The Notes, and the form of Note attached as Exhibit 1 to the
Consolidation Agreement, shall be amended by deleting the twelfth (12th)
paragraph therefrom (beginning with "In any action brought . . ." and ending
with " . . . other security instrument securing this Note."), and by inserting,
in lieu thereof, the following:
"The liability of Maker under this Note shall be subject to
the terms and conditions set forth in Section 7 of the Note
and Mortgage Modification and Spreader Agreement, dated as of
December 29, 1995, between Maker and Payee, as amended,
modified or supplemented from time to time."
3. Prepayment Provisions. The terms of Section 1.05 of the
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Mortgage (entitled "Prepayment of Notes") shall be amended as follows:
(a) In Section 1.05(b) of the Mortgage, the number "60" shall be
deleted and, in lieu thereof, the number "90" shall be inserted.
(b) In Section 1.05(b)(i)(x) of the Mortgage, the reference to
"9.75%" shall be deleted and, in lieu thereof, "8.911%" shall be inserted.
(c) In Section 1.05(c) of the Mortgage, the reference to "January
15, 1998" shall be deleted and, in lieu thereof, "October 1, 2002" shall be
inserted.
4. Mortgage to Be Spread.
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(a) The term "Land", as defined and used in the Mortgage, shall be
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amended to include (without limitation) the Corner Parcel described on Exhibit
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A-2 hereto, to the extent of Mortgagor's right, title and interest therein
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pursuant to the Corner Parcel Lease.
(b) The term "Mortgaged Premises", as defined and used in the
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Mortgage, shall be amended to include, without limitation, all right, title and
interest of Mortgagor in and to the Corner Parcel pursuant to the Corner Parcel
Lease, including (without limitation) the Improvements thereon and the Space
Leases applicable to the Corner Parcel and the Improvements thereon.
(c) The Mortgage and the lien thereof is hereby spread to cover
all right, title and interest of Mortgagor in and to the Corner Parcel pursuant
to the Corner Parcel Lease, including
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(without limitation) Mortgagor's right, title and interest in and to the
Improvements thereon and the Space Leases applicable to the Corner Parcel and
the Improvements thereon.
(d) The paragraph immediately preceding Article 1 of the Mortgage
(which paragraph begins with the language "Mortgagor and Mortgagee agree that
the Corner Parcel . . .", and ends with the language ". . . premises described
in Schedule A, Parcel A") shall be deleted from the Mortgage in its entirety.
(e) Mortgagor shall at all times promptly and fully observe, keep
and perform, or cause to be observed, kept and performed, all agreements, terms,
covenants and conditions contained in the Corner Parcel Lease by the lessee
therein to be kept and performed within all applicable notice and grace periods,
and all terms to be performed by Mortgagor under those agreements and
instruments binding upon Mortgagor (as lessee thereunder) and affecting or
pertaining to the Corner Parcel and described in Items 0X, 0X, 0X, 0X, 0X, 0X,
0X and 9 on Schedule B to the Title Commitment. Mortgagor further covenants that
it will not do or permit anything to be done, the doing of which, or refrain
from doing anything, the omission of which, will be an Event of Default under
the Corner Parcel Lease. Mortgagor shall provide Mortgagee with a copy of any
notice, communication, plan, specification or other instrument or document
received or given by it in any way relating to or affecting the Corner Parcel
Lease and which may materially adversely affect the estate of the lessor or the
lessee in or under the Corner Parcel Lease or in the real estate thereby
demised; give Mortgagee immediate notice of any receipt by it of any notice of
default from the lessor thereunder, unless Mortgagee or an Affiliate of
Mortgagee is the lessor thereunder; furnish to Mortgagee within fifteen (15)
days any and all information which it may reasonably request concerning the
performance by Mortgagor of the agreements, terms, conditions, and covenants of
the Corner Parcel Lease; and permit Mortgagee or its agents or representatives,
at all reasonable times during normal business hours and on reasonable prior
notice, to meet with Mortgagor's agents, employees or representatives concerning
such performance. The covenants and obligations set forth in this Section 4(e)
shall be deemed to be covenants and obligations of Mortgagor under the Mortgage.
5. Sales, Transfers, etc. (a) Subparagraph (iv) of Section 5.01(n)
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shall be amended and restated, in its entirety, as follows:
"(iv) Mortgagee is furnished by Mortgagor with true,
correct and complete copies of the documentation effecting
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such transfer or encumbrance within 5 days after such
transaction,".
(b) Section 5.01(n) of the Mortgage shall be further amended by
deleting therefrom the language beginning with "provided, however" on the second
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line from the bottom of page 40 of the Mortgage through the end of such Section
5.01(n) on page 42 of the Mortgage, and by inserting, in lieu thereof, the
following:
"provided, however, that if
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(1) there shall be no default by Mortgagor in the performance of
Mortgagor's obligations under the Notes, the Mortgage, the
Consolidation Agreement, the Cash Collateral Agreement, the
Environmental Indemnity or any of the other Loan Documents;
(2) at least thirty (30) days prior to any proposed sale,
assignment, conveyance, disposition, transfer or other
transaction modifying the Interests (as hereinafter defined)
held by any Person in Mortgagor or in any Constituent Party
(as hereinafter defined) (each such proposed sale, assignment,
conveyance, disposition or other transaction being hereinafter
referred to as a "Transfer"), Mortgagee shall be provided with
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written notice of such Transfer together with a diagram
showing the structure of Mortgagor and all parties (each, a
"Constituent Party" and collectively, "Constituent Parties")
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holding partnership interests or other ownership interests,
equitable interests or other beneficial interests, whether
direct or indirect ("Interests"), in Mortgagor after the
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contemplated Transfer, and a list of the names, types of
Interests and percentages of ownership of all owners of
Interests in Mortgagor and in any Constituent Parties after
the contemplated Transfer, and with respect to a Transfer
other than one under subparagraph (D) below, an administrative
fee of $1,500, which shall be deemed fully earned upon
receipt; and
(3) all fees and costs incurred by Mortgagee in connection with
the Transfer, including without limitation, reasonable fees
and disbursements of Mortgagee's outside counsel, shall be
paid by
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Mortgagor at or prior to the closing of the Transfer;
then the provisions of subparagraphs (i), (ii) and (v) of this
Section 5.01(n) shall not apply to, and the consent of
Mortgagee shall not be required for, any of the Transfers
described in subparagraphs (A) through (F) below which may
occur from time to time:
(A) a Transfer of
(i) any limited partnership interest in Vic Associates to
another existing limited partner of Vic Associates as of
the date hereof; or
(ii) any interest held by Xxxxxxx Xxxxxxxxx or Xxxxxxx
Xxxxxxxxx in Mortgagor or in a Constituent Party of
Mortgagor, or any limited partnership interest held by any
Person in a Constituent Party, (a) to a holder of such
interest as trustee by testamentary or inter vivos
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transfer for the benefit of themselves or members of their
immediate family, (b) by testamentary or inter vivos gifts
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or bequests to members of the immediate family of the
grantor, (c) by intestate distributions, (d) by
distributions upon the termination of a trust to the
members of the immediate family of such transferor, or (e)
to conservators or other legal representatives pursuant to
court order upon the disabilities of any such transferor,
provided that at all times following any Transfer
described in this subparagraph (ii) a Permitted
Controlling Party shall be the Controlling Party of
Mortgagor;
(B) a Transfer by any Person of Interests in Mortgagor or in
any Constituent Party (not otherwise permitted under
clause (A) above), provided that, after such Transfer,
(i) no more than a 49% direct or indirect beneficial
interest in Mortgagor (not including Transfers solely
between Xxxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxx and not
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including Transfers described in subparagraphs (C) and
(F) below) has been Transferred (in the aggregate) since
December 29, 1995;
(ii) a Permitted Controlling Party is the Controlling
Party of Mortgagor at all times subsequent to such
Transfer; and
(iii) no more than a 49% direct or indirect beneficial
interest in any other general partner of Mortgagor (not
including Transfers solely between Xxxxxxx Xxxxxxxxx and
Xxxxxxx Xxxxxxxxx and not including Transfers described in
subparagraphs (C) and (F) below) has been Transferred (in
the aggregate) since December 29, 1995;
(C) any conversion by Xxxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxx
of their direct and indirect interests in Mortgagor into
either (x) a limited liability company, or (y) a limited
partnership with a corporate general partner, provided
that, with respect to any Transfer described in the
preceding clauses (x) or (y), the level of control
exercised by Xxxxxxx Xxxxxxxxx over the business,
management and operations of either such entity and
Mortgagor, and the beneficial interests of Xxxxxxx
Xxxxxxxxx and Xxxxxxx Xxxxxxxxx therein, shall not be
modified in connection with or as a result of any such
conversion (any such limited liability company or
limited partnership complying with the terms of this
subparagraph being referred to herein as a "Gladstone
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Entity"), and provided further that nothing in this
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subparagraph (C) is intended to limit the right of the
Constituent Parties to enter into any transactions
permitted under subparagraph (A) above following such
conversion;
(D) the conversion of Mortgagor into a limited liability
company, provided that the Interests in Mortgagor held by
the Constituent Parties of Mortgagor, and the level of
control exercised by Xxxxxxx Xxxxxxxxx over the business,
management and operations of
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Mortgagor, shall not be modified in connection with or as
a result of any such conversion, and provided that
Mortgagor shall enter into any amendments to the Mortgage
or any of the Loan Documents, as may be reasonably
requested by Mortgagee, in order to reflect the conversion
of Mortgagor from a general partnership to a limited
liability company, and provided further that nothing in
this subparagraph (D) is intended to limit the right of
the Constituent Parties to enter into any transactions
permitted under subparagraph (A) above following such
conversion;
(E) the conversion by Vic Associates into a limited liability
company, provided that the Interest of any Person in Vic
Associates shall not be increased or reduced in
connection with any such conversion, and provided further
that nothing in this subparagraph (E) is intended to
limit the right of the Constituent Parties to enter into
any transactions permitted under subparagraph (A) above
following such conversion;
(F) any Transfer by the transferee in any transaction
described in subparagraph (A) or (C) above back to the
original transferor in such transaction.
(c) As used in this Section 5, (i) `immediate family' of Xxxxxxx
Xxxxxxxxx or Xxxxxxx Xxxxxxxxx shall mean such Person's spouse and any lineal
descendants of such Person and (ii) the `immediate family' of any other Person
shall mean such Person's spouse, any lineal descendants of such Person and any
siblings or spouses of such lineal descendants."
(d) Upon written request from Mortgagor, Mortgagee shall confirm
to Mortgagor in writing that a Transfer complies with the provisions of this
Section 5 if such Transfer in fact complies with such provisions.
6. One Time Assumption. Notwithstanding anything to the contrary
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set forth in the Mortgage or the Notes, Mortgagor shall have the right to
Transfer all (but not less than all) of the Mortgaged Premises, or Transfer all
of the stock or other Interests in Mortgagor or in every Constituent Party,
provided that:
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(a) such Transfer under this Section 6 may occur only one time
during the term of the Mortgage;
(b) such Transfer shall be subject to Mortgagee's prior written
approval of the proposed transferee's financial capacity, creditworthiness,
proven ability to manage property of the type and nature of the Mortgaged
Premises, and the proposed transferee's general reputation in the community;
(c) as of the date of Mortgagor's written notice to Mortgagee of
the Transfer and as of the closing date of the Transfer, there is no default by
Mortgagor in the payment of principal, interest or any other amounts due to
Mortgagee under any of the Loan Documents, nor is there any outstanding Event of
Default with respect to any of Mortgagor's other obligations under the Mortgage
or any of the Loan Documents;
(d) there is no financing being obtained by the transferee in
connection with the Transfer which will be secured by a mortgage on the
Mortgaged Premises or a security interest in any ownership interests, equitable
interests or other beneficial interests in the transferee entity;
(e) at least sixty (60) days prior to the closing of the proposed
transfer, Mortgagee receives a written request for approval from Mortgagor
(including a description of the proposed terms of the Transfer), together with a
diagram showing the structure of the proposed transferee entity and all of its
constituent entities after the contemplated Transfer and a list of the names,
types of interests and ownership percentages of all parties to have ownership
interests in the transferee entity or any constituent entity, financial
statements for all such entities and an administrative fee of $5,000, which
shall be deemed fully earned on the date of receipt and shall be retained by
Mortgagee regardless of whether or not the Transfer occurs and whether or not
Mortgagee's approval is given;
(f) at the closing of the proposed Transfer, the proposed
transferee executes and delivers to Mortgagee, in the event of a Transfer of the
Mortgaged Premises and in connection with any other Transfer (to the extent
reasonably requested by Mortgagee), (i) an agreement under which the transferee
assumes the obligations of Mortgagor under the Loan Documents and which contains
an exculpation clause equivalent to the exculpation clause set forth in Section
7 of this Agreement (except for the language in Section 7(a)(iv) beginning with
"or for the matters" on the fourth line thereof through the end of such sub-
paragraph 7(a)(iv), which language shall be omitted form such agreement with the
transferee), (ii) a separate environmental indemnity agreement containing
substantially similar provisions
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to the Environmental Indemnity, and (iii) such other documents as Mortgagee may
reasonably require in order that the Mortgagee may obtain the full benefits to
which it is entitled under the Notes, the Mortgage and the other Loan Documents,
each of which shall be in form and substance satisfactory to Mortgagee (in the
exercise of Mortgagee's reasonable discretion) provided that, in connection with
the agreements described in this subparagraph (f), Mortgagee shall not be
required to exculpate any current or future Constituent Parties of Mortgagor or
any transferee entity from personal liability for environmental matters other
than those Constituent Parties specifically referenced in Section 7(a)(iv)
hereof;
(g) at least fifteen (15) days prior to the closing of the
proposed Transfer, Mortgagee and its counsel shall have received a joint written
notice from Mortgagor (or the relevant Constituent Parties) and the proposed
transferee that the terms of the Transfer described in the notice given to
Mortgagee in accordance with subparagraph (e) above are the actual terms of the
Transfer, together with evidence of casualty insurance for the Mortgaged
Premises, all corporate, partnership or other organizational documents relating
to the proposed transferee, and all certificates, legal opinions to Mortgagee
from the transferee's outside counsel, and other documents which Mortgagee shall
have reasonably requested, and, as of the closing of the proposed Transfer, such
documents shall be in form and substance approved by Mortgagee, which approval
shall not be unreasonably withheld, delayed or conditioned, provided that, if
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any of the foregoing documents or materials shall not be satisfactory to
Mortgagee, then Mortgagee shall give Mortgagor a written notice setting forth
Mortgagee's objections within twenty (20) days after Mortgagee's receipt of such
documents or materials;
(h) Mortgagee shall be provided with a written report prepared by
or on behalf of Mortgagor, approved by Mortgagee, which approval shall not be
unreasonably withheld, delayed or conditioned, of the anticipated change (if
any) in the real property taxes on the Mortgaged Premises as a result of the
proposed Transfer and which report shall state that the net annual income from
operations of the Mortgaged Premises for the 12 months immediately following the
Transfer is projected to be not less than 105% of the annual payments of
principal and interest under the Notes and the Mortgage (net annual income from
operations meaning the income of Mortgagor after deducting all operating
expenses, real property taxes (as anticipated to be increased due to the
Transfer, if such is the case) and reserves and all other appropriate expenses,
based upon financial statements prepared by Mortgagor's independent certified
public
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accountants for the most recent 12 month period available, provided that in
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calculating net annual income from operations for purposes of this subparagraph
(h) no deduction shall be made for (x) debt service on the Mortgage or any
subordinate mortgage permitted by Mortgagee, (y) depreciation on the
Improvements and (z) the amortization of any expenses incurred for real estate
brokerage commissions and tenant improvements in connection with the leasing of
space in the Mortgaged Premises);
(i) Mortgagee shall be provided with evidence reasonably
satisfactory to Mortgagee that the proposed transferee has consented in writing
to the jurisdiction of the state and federal courts located in the State of New
York and has waived any defenses of sovereign immunity;
(j) Mortgagee shall receive a transfer fee equal to one percent
(1%) of the then outstanding principal balance due under the Notes and the
Mortgage, which transfer fee shall be payable at or prior to the closing of the
Transfer (and against which the administrative fee described in subparagraph (e)
above shall be credited);
(k) Mortgagee shall be provided with a title insurance report (or,
if Mortgagee shall reasonably request, an endorsement to Mortgagee's title
insurance policy) for the Mortgaged Premises in form and substance and from a
title insurance company approved by Mortgagee (which approval shall not be
unreasonably withheld, delayed or conditioned), and with a copy of the recorded
deed (if applicable) promptly after Transfer;
(l) all of Mortgagee's reasonable fees and costs in connection
with the Transfer, including, without limitation, reasonable fees and
disbursements of Mortgagee's outside counsel, shall be paid by Mortgagor.
Nothing in this Section 6 is intended to limit the right of
Mortgagor or the Constituent Parties to engage in the Transfers described in
Section 5 of this Agreement without the necessity of obtaining Mortgagee's
consent thereto (but subject to compliance with all other provisions of such
Section 5).
7. Liability of Mortgagor.
----------------------
(a) In any action brought at law or in equity to enforce the
obligations of Mortgagor to pay any indebtedness or to perform any other
monetary obligation or any non-monetary obligation created or arising under the
Consolidation Agreement, the Mortgage, the Notes, the Assignment of Leases, the
-14-
Assignment of Rents, the Cash Collateral Agreement, the Environmental Indemnity
or under any of the other Loan Documents, the judgment or decree shall be
enforceable against Mortgagor only to the extent of its interest in the
Mortgaged Premises (or the property subject to such other instrument or
agreement described above), and Mortgagee shall not seek or claim recourse
against any other assets of Mortgagor or against any Constituent Party or any
principal, member, officer, director, shareholder or equity owner of any
Constituent Party and any such judgment shall not be subject to execution on,
nor be a lien on, assets of Mortgagor (or of its Constituent Parties or any
principal, member, officer, director, shareholder or other equity owners of its
Constituent Parties) other than the Mortgaged Premises (or the property subject
to such other instrument or agreement described above), provided that the
--------
foregoing shall not relieve Mortgagor or any other Person of any liability for,
nor prejudice or limit the rights of Mortgagee by reason of, any of the
following:
(i) fraud or misrepresentation of Mortgagor, and physical waste
of the Mortgaged Premises arising from the gross negligence
or wilful misconduct of Mortgagor;
(ii) any rents, issues or profits collected more than one (1)
month in advance of their due dates;
(iii) any Misapplication (as hereinafter defined) of loan
proceeds, rents, issues or profits, security deposits, any
other payments from tenants or occupants (including without
limitation, lease termination fees), insurance proceeds or
condemnation awards;
(iv) liability under environmental covenants, environmental
conditions and environmental indemnifications contained
in the Mortgage or in the Environmental Indemnity, or for
the matters set forth in the Environmental Certificate,
dated as of October 30, 1995, delivered by Mortgagor to
Mortgagee, provided that in no event shall Xxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, Gladwater Associates, Vic
Associates, General Chemical and Supply Co., Inc. (or any
principal, officer, director, shareholder or equity owner
of General Chemical and Supply Co., Inc.) or any Permitted
Transferee have any personal liability for the matters
described in this subparagraph (iv);
-15-
(v) personalty or fixtures which Mortgagor, directly or
through an agent, removed from the Mortgaged Premises and
which were not replaced by items of equal or greater
utility than the personalty or fixtures so removed, unless
such personalty or fixtures so removed are unnecessary to
properly operate the Mortgaged Premises or are obsolete,
provided that, for purposes of this subparagraph (v),
neither a receiver for the Mortgaged Premises appointed
solely by or at the request of Mortgagee, an agent
appointed solely by Mortgagee, nor the Mortgagee acting as
mortgagee-in-possession, shall be deemed to be an agent of
Mortgagor;
(vi) any amount equal to the sum of all payments made by
Mortgagor to holders of subordinate mortgages (not
consented to in writing by Mortgagee) on the Mortgaged
Premises during any period in which Mortgagor is in
default of payment of principal or interest under the
Notes or of any escrow payments required under the Mortgage
in respect of real property taxes or assessments; or
(vii) reasonable attorney's fees, court costs and other expenses
incurred by Mortgagee in connection with the successful
enforcement of Mortgagor's personal liability as set
forth herein.
(b) As used in Section 7, the term "Misapplication" shall mean
(1) the distribution or payment of cash flow by Mortgagor to, or for the benefit
of, any of Mortgagor's Constituent Parties, or to any holder of a mortgage on
the Mortgaged Premises subordinate to the Mortgage, which mortgage has not been
consented to in writing by Mortgagee (a "Distribution"), at such time as
------------
Mortgagor has failed to pay or cause to be paid any of the following: (A) the
principal and interest then due under the Notes and Mortgage, (B) any other
amounts then due under the Notes, the Mortgage, the Cash Collateral Agreement,
or any other Loan Documents, or (C) any amounts then due in connection with the
operation, management, maintenance and repair of the Mortgaged Premises,
including (without limitation) amounts then due for tenant improvements or other
capital expenditures, real property taxes or assessments (provided, however,
Mortgagor shall be deemed to have paid real property taxes to the extent of
payments made by Mortgagor into escrow pursuant to the Tax Processing Agreement)
insurance premiums, salaries, service contracts, utilities, or labor or material
-16-
for work performed at or for the benefit of the Mortgaged Premises, or (2) the
use by Mortgagor of security deposits, insurance proceeds, condemnation awards
or other restricted funds for purposes other than the purposes set forth in any
lease, contract or other agreement binding upon Mortgagor and governing the use
of such funds. Notwithstanding the foregoing, the following circumstances alone
shall not constitute a "Misapplication": if Mortgagor shall pay a Distribution,
at such time as there shall be no outstanding Event of Default, and amounts are
then due and owing by Mortgagor either (1) for capital improvement costs, tenant
improvement costs or other items for which Mortgagor has submitted a Withdrawal
Request (as defined in the Cash Collateral Agreement) and for which Mortgagor is
then entitled to receive amounts under the Cash Collateral Agreement (provided
that Mortgagor shall promptly pay such expenditures upon receipt of such funds
from the Cash Collateral Account) or (2) for expenditures incurred for materials
(the cost of which is reimburseable under the Cash Collateral Agreement)
purchased or in fabrication and to be delivered pursuant to binding contracts
reasonably committed to at the time of execution taking into account sums on
deposit in the Cash Collateral Account.
(c) In Section 5.02 of the Mortgage, (i) the words "Limitation on
Mortgagor's Liability" are hereby deleted from the caption of such Section 5.02,
and (ii) the entire second sentence of such Section 5.02 is hereby deleted.
8. Certain Additional Modifications.
--------------------------------
(a) The "Restrictions on Distributions" set forth in Section 2 of
the 1992 Modification Agreement are hereby terminated and are of no further
force or effect.
(b) Section 2.06 of the Mortgage is hereby amended (i) by deleting
subparagraph (c) from Section 2.06 of the Mortgage, and (ii) by deleting the
word "and" before the commencement of such subparagraph 2.06(c) and by
inserting, in lieu thereof, a period.
(c) Section 2.09.7 of the Mortgage shall be amended and restated,
in its entirety, to read as follows:
"2.09.7. Rent Roll. Mortgagor shall furnish to Mortgagee,
---------
together with the annual financial statements of Mortgagor described
in Section 4.04 of this Mortgage, and within ten (10) days after a
written request by Mortgagee to do so, a statement certified by the
managing general partner of Mortgagor (or, by the manager of
Mortgagor if Mortgagor has
-17-
converted to a limited liability company in accordance with the terms
of the Mortgage) containing, for all Space Leases, the name of the
lessee, lease commencement and expiration dates, square footage,
annual rent, operating expenses and real estate tax contributions
(collectively, "rent"), and security deposits, and, if requested in
writing by Mortgagee, true copies of each lease and any amendments
and supplements thereto, provided that Mortgagee shall not make more
than one (1) written request per calendar year for a certified rent
roll in accordance with this Section 2.09.7 in addition to the
certified rent roll delivered by Mortgagor with Mortgagor's annual
financial statements, as provided above."
(d) Section 2.10 of the Mortgage is amended by deleting the first
sentence of Section 2.10.1 and, in lieu thereof, inserting the following:
"Mortgagor shall use and operate the Mortgaged Premises, or shall
cause such Premises to be used and operated, solely as a first-class,
Class A office building with office space (currently consisting of
approximately 000,000 xxxxxx xxxx xx xxxxxxxx xxxx) and retail space
(currently consisting of approximately 31,751 square feet of leasable
area) and for no other purpose."
(e) The Mortgage is hereby amended by adding the following after
the end of Section 2.18.3 of the Mortgage:
"2.19. Modifications to Governing Documents. The Governing
------------------------------------
Documents of Mortgagor shall not be amended, modified or supplemented
in any respect so as to (x) materially change the provisions thereof
governing control over the business, management and operations of
Mortgagor, or (y) impose disproportionate or preferential
allocations, distributions or returns for the benefit of any
Constituent Party of Mortgagor, without the prior written consent of
Mortgagee, which consent shall not be unreasonably withheld, delayed
or conditioned, provided that, within twenty (20) days of Mortgagee's
receipt of written notice from Mortgagor as to any such proposed
modification, Mortgagee shall respond in writing to Mortgagor as to
whether such proposed modification is acceptable to Mortgagee and if
not, setting forth Mortgagee's objections thereto. Notwithstanding
the foregoing, Mortgagor shall have the right, upon prior written
notice to Mortgagee but without the necessity
-18-
of obtaining Mortgagee's consent, to make modifications to the
Governing Documents of Mortgagor in order to specifically reflect the
occurrence of any of the Transfers permitted in Section 5 of this
Agreement.
2.20. Managing or Leasing Agent. Without the prior written
-------------------------
consent of Mortgagee, which consent shall not be unreasonably
withheld, delayed or conditioned, Mortgagor shall not hire or retain
a managing agent, leasing agent, or other firm or company to provide
management or leasing services to the Mortgaged Premises, provided
that the hiring or retention of any Affiliate of a Permitted
Controlling Party to provide such services shall not require
Mortgagee's consent.
2.21. Controlling Party. Notwithstanding anything to the
-----------------
contrary set forth in this Agreement, the Mortgage or in any other
Loan Document, in no event shall the Controlling Party be any Person
other than a Permitted Controlling Party.
2.22. Existence. Mortgagor shall preserve and maintain its
---------
existence as a general partnership (or, if applicable and if in
accordance with this Agreement, as a limited liability company or
limited partnership) under the laws of the State in which it is
organized and its rights, franchises, licenses and privileges
material to its business."
(f) Section 4.04 of the Mortgage shall be amended and restated, in
its entirety, to read as follows:
"4.04. Financial Statements. Mortgagor shall deliver or cause
--------------------
to be delivered to Mortgagee, not later than four (4) months after
the end of each fiscal year of Mortgagor, audited financial
statements in detail reasonably satisfactory to Mortgagee, of annual
income and expenses with respect to the ownership and operation of
the Mortgaged Premises for such fiscal year, setting forth in
comparative form the figures for the previous fiscal year. Such
statements shall be (a) accompanied by a certification from the
managing general partner of Mortgagor (or, by the manager of
Mortgagor if Mortgagor has converted to a limited liability company
in accordance with the terms of the Mortgage), that, to the best of
such Person's knowledge, such statements fairly reflect the financial
condition of Mortgagor
-19-
as of the date thereof, and (b) certified by an independent certified
public accounting firm that is a member of the American Institute of
Certified Public Accountants and that is otherwise approved by
Mortgagee, which approval shall not be unreasonably withheld, delayed
or conditioned. In addition to the foregoing, Mortgagor shall deliver
to Mortgagee, with reasonable promptness, such information and data
with respect to the business, operations, affairs, prospects,
condition, properties and assets of Mortgagor and the Mortgaged
Premises as Mortgagee may reasonably request from time to time.
(g) Section 7.04 of the Mortgage shall be amended and restated, in
its entirety, to read as follows:
"7.04. Notices, etc. All notices, demands, requests, consents,
------------
approvals and other instruments under this Mortgage or the Notes
shall be in writing and shall be deemed to have been actually or
properly given if and when mailed by first-class registered or
certified mail, return receipt requested, postage prepaid, or by
personal delivery (with a receipt obtained therefor) or recognized
overnight courier service, addressed (a) if to Mortgagor, to
-
Mortgagor's address set forth on the first page hereof, or at such
other address as Mortgagor may have designated by notice to
Mortgagee, with a copy to Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxxx & Kuh,
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention, Xxxxxx X.
Xxxxxx, Esq., and to Xxxxxx Xxxxxx Butowsky Xxxxxxx Shalov and Xxxx,
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention Xxxxxxx Hel-
man, Esq. or to such other firms as Mortgagor may direct in writing,
(b) if to Mortgagee originally named herein, to Xxxx Xxxxxxx Mutual
-
Life Insurance Company, Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Real Estate Investment Group, Floor
---------
T-53, or at such other address as Mortgagee may have designated by
notice to Mortgagor, or (c) if to any holder of any Note, other than
-
Mortgagee originally named herein, at such address as such holder may
have designated by notice to Mortgagor, or, until an address is so
designated, to and at the address of the last holder of such Note so
designating an address to Mortgagor. The foregoing insertion of
Mortgagor's mailing address shall be deemed to be a request by
Mortgagor that a copy of
-20-
any notice of default and of any notice of sale hereunder be mailed
to Mortgagor at such address as provided by law."
(h) Mortgagor and Mortgagee covenant and agree that all
representations, warranties, covenants, liabilities and obligations of Mortgagor
under the Environmental Indemnity (attached as Exhibit C hereto) and under any
---------
of the 1995 Modification Documents shall be deemed to be incorporated in the
Mortgage and shall be secured by the lien of the Mortgage and by any lien
created by, or arising under, any other Loan Document.
9. Cross-Defaults. Mortgagor shall comply in all respects with
--------------
Mortgagor's covenants and obligations under this Agreement, the Cash Collateral
Agreement, the Environmental Indemnity, the Assignment of Rents, the Assignment
of Leases, and all of the other Loan Documents, and any default by Mortgagor in
the performance and observance of its covenants and obligations under any of
such documents shall (subject to any notice and cure provisions specifically set
forth in such documents, or, if none are set forth in such documents, subject to
the notice and cure provisions contained in Section 5.01(d) of the Mortgage) be
deemed to be an Event of Default by Mortgagor under the Mortgage.
10. Modification Agreement Governs. In the event of any conflict
------------------------------
or inconsistency between this Agreement and the terms and conditions of the
Mortgage, the Notes, or any other Loan Document, then the terms and conditions
of this Agreement shall govern and prevail, and the conflicting or inconsistent
terms and conditions of the Mortgage, the Notes or such other Loan Document
shall be deemed to be amended accordingly.
11. References to "Mortgage" and "Notes". From and after the date
------------------------------------
hereof, (a) all references herein, in the Consolidation Agreement, the Mortgage,
the Notes or in any other Loan Document to "the Mortgage" and to "this Mortgage"
shall be deemed to refer to the Consolidation Agreement as amended by the 1990
Modification Agreement, the 1992 Modification Agreement, and by this Agreement,
and as hereafter amended, modified or supplemented from time to time, and (b)
all references herein and in the Consolidation Agreement, the Mortgage, the
Notes or in any other Loan Document to "the Notes" or "this Note" shall be
deemed to refer to the Notes, as amended by the 1990 Modification Agreement, the
1992 Modification Agreement, and by this Agreement, and as hereafter amended,
modified or supplemented from time to time.
12. No Offsets or Defenses. Mortgagor hereby represents and
----------------------
warrants that, as of the date hereof, (a) the outstanding principal amount owing
under the Notes and secured by the Mortgage is One Hundred and Eighty Million
Dollars
-21-
($180,000,000.00), which amount Mortgagor covenants to pay in accordance with
all of the terms and provisions of the Notes and the Mortgage; and (b) Mortgagor
has no offsets or defenses to the Mortgage, the Note or any of the Loan
Documents of any kind whatsoever (and Mortgagor hereby expressly waives any and
all of the same).
13. Representations and Warranties.
------------------------------
(a) This Agreement and the other 1995 Modification Documents have
been duly executed by the Mortgagor and each constitutes the legal, valid and
binding obligation of Mortgagor, enforceable against Mortgagor in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
moratorium, reorganization and similar laws affecting the rights of creditors
generally, and except as limited by equitable principles of general application;
(b) No authorization, consent, approval, license or formal
exemption from, nor any filing, declaration or registration with, any federal,
state, local or foreign court, governmental agency or regulatory authority or
any other person or entity is required in connection with the making and
performance by Mortgagor of this Agreement the other 1995 Modification
Documents, except for such consents, approvals and authorizations which have
already been obtained.
(c) Mortgagor hereby restates and reconfirms, as of the date
hereof, all of the representations and warranties contained in Article 6 of the
Mortgage, provided that references therein to "this Mortgage and the
Consolidation Agreement" shall mean, for purposes of such restatement, this Note
and Mortgage Modification and Spreader Agreement and the other 1995 Modification
Documents, except that:
(i) the following shall be added at the beginning of Section
6.03, Section 6.04 and Section 6.13: "To the best of
Mortgagor's knowledge,";
(ii) the second sentence of Section 6.07 and all of Section 6.09
of the Mortgage are deleted;
(iii) at the beginning of each of the two sentences of Section
6.05, there is inserted the following: "Except as previously
disclosed in writing to Mortgagee,";
(iv) in Section 6.07 there is inserted after the word "the" in
line 2 of said Section the word "material";
-22-
(v) in Section 6.10 there is inserted after the word "the" in
line 9 of said Section the word "material"; and
(vi) the periods at the end of the third, fourth and fifth
sentences of Section 6.10 of the Mortgage are deleted and
replaced by the following: ", except as previously disclosed
in writing to Mortgagee."
(d) Mortgagor represents and warrants to Mortgagee that, to the
best of Mortgagor's knowledge, Mortgagor has disclosed to Mortgagee all facts
material to the Mortgaged Premises, the Mortgagor, and the Mortgagor's business
operations.
(e) Mortgagor represents and warrants to Mortgagee that, as of the
date hereof, Xxxxxxx Xxxxxxxxx is the only Controlling Party of Mortgagor.
(f) The reference in Section 5.01(e) of the Mortgage to "any
warranty, representation or other statement made by or on behalf of Mortgagor in
or pursuant to this Mortgage" shall include, without limitation, the
representations and warranties of Mortgagor set forth in this Section 13 (as
reconfirmed and restated) and in the Environmental Indemnity, the Borrower's
Certificate and any other 1995 Modification Document.
(g) A representation or warranty made in this Section 13 "to the
best of Mortgagor's knowledge" means that Mortgagor shall be deemed to have made
a reasonable investigation and inquiry with respect to such representation or
warranty.
(h) The meaning of the term "material", as used in this Section
13, shall be determined solely as of the date of this Agreement.
14. Additional Obligations of Mortgagor.
-----------------------------------
(a) Mortgagor shall obtain, within 90 days after the date hereof,
all consents, approvals or certifications required from any governmental body
under all applicable laws and regulations with respect to the fuel storage tanks
located at the Mortgaged Premises, and Mortgagor shall promptly provide
Mortgagee with a copy of any such approval, consent or certification promptly
after Mortgagor's receipt thereof.
(b) Mortgagor shall obtain, within 120 days after the date hereof,
a temporary certificate of occupancy relating to the sixth (6th) floor of the
Improvements located on the Fee Parcel, and a permanent certificate of occupancy
relating to the entire
-23-
Improvements located on the Fee Parcel, and Mortgagor shall provide Mortgagee
with a copy of such certificates of occupancy promptly after Mortgagor's receipt
thereof, provided that if such temporary or permanent certificate of occupancy
cannot with due diligence and dispatch be obtained with such 120 day period,
then such 120 day period shall be deemed extended for such period as Mortgagor
shall attempt to obtain such temporary or permanent certificate of occupancy
with due diligence and dispatch. Upon request by Mortgagee, Mortgagor shall
provide Mortgagee with written reports as to the status of Mortgagor's efforts
to obtain the certificates of occupancy described in this Section 14(b). In
amplification of, and not in limitation of, the provisions of Section 2.16 of
the Mortgage, Mortgagor shall protect, indemnify, save harmless and defend
Mortgagee from and against any and all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by
or asserted against Mortgagee by reason of Mortgagor's failure to comply with
the provisions of this Section 14(b). The foregoing indemnification obligation
of Mortgagor under this Section 14(b) shall survive any discharge of this
Mortgage and payment in full of the Notes. The provisions of Section 2.16 of the
Mortgage shall be applicable to any action or proceeding brought by Mortgagor
pursuant to this Section 14(b).
(c) In accordance with Section 4.01 of the Mortgage, Mortgagor
shall fully cooperate with any inspection, review or audit conducted by
Mortgagee of the Mortgaged Premises and its operations, and Mortgagor
acknowledges that Mortgagee shall have the right (but not the obligation) to
conduct any such audit, inspection or review as frequently as monthly.
15. Same Indebtedness; Maximum Principal Amount.
-------------------------------------------
(a) Mortgagor and Mortgagee hereby certify that this Agreement
secures the same indebtedness as is secured by the Consolidation Agreement as
amended by the 1990 Modification and 1992 Modification, and no new or further
indebtedness is secured by, or under any contingency may be secured by, the
Mortgage.
(b) Notwithstanding anything to the contrary contained herein or
in the Mortgage, the maximum amount of principal indebtedness secured by the
Mortgage at the time of execution hereof, or which under any contingency may
become secured by the Mortgage at any time hereafter, is One Hundred and Eighty
Million Dollars ($180,000,000).
(c) This Mortgage, in addition to the maximum principal
indebtedness described above, secures interest due under the Notes and
Out-of-Pocket Costs expended by the Mortgagee. As used
-24-
in this Section 15, "Out-of-Pocket Costs" shall mean (i) any and all sums
actually paid or required to be paid by the Mortgagee for real estate taxes,
taxes on rents or rentals or insurance premiums as provided in the Mortgage, and
any and all other sums actually paid or required to be paid by the Mortgagee
pursuant to the terms of the Mortgage to protect and preserve the Mortgaged
Premises or the Mortgagee's interest therein, (ii) any and all sums, including,
without limitation, judgments, settlements or compromises, reasonable attorneys'
fees and other costs and expenses, paid by the Mortgagee in connection with any
suit, action, legal proceeding or dispute of any kind, in which the Mortgagee is
a party or appears, arising from or related to the lien of the Mortgage, and
(iii) any amount, cost or charges with respect to which the Mortgagee becomes
subrogated, upon payment, in respect of any lien which may affect the validity
or priority of the Mortgage, whether under recognized principles of law or
equity, or under express statutory authority.
16. No Waiver. Nothing contained in this Agreement shall be deemed
---------
to constitute a waiver by Mortgagee of its rights under the Mortgage if any
payment is not made strictly in accordance with the terms of the Notes or the
Mortgage, as modified hereby. Nothing contained in this Agreement shall be
deemed to constitute a waiver by Mortgagee of any right or remedy available to
Mortgagee arising out of a default by Mortgagor under the Notes or the Mortgage,
as modified hereby.
17. Recording Fees, etc. Mortgagor will pay or cause to be paid
-------------------
all recording fees and taxes payable in connection with the execution, delivery
and recording of this Agreement, the cost of any endorsement required by
Mortgagee to the title insurance policy held by Mortgagee and the reasonable
fees and expenses of Mortgagee's special counsel in connection with the
preparation, execution and delivery hereof.
18. Application. Mortgagor and Mortgagee agree that each party has
-----------
performed all of its obligations under the Application, and that no obligations
under the Application shall survive the execution and delivery of this
Agreement, except to the extent expressly provided in this Agreement.
19. Ratification. Except as amended or modified hereby, the terms
------------
and conditions of the Mortgage and the Notes are hereby ratified and confirmed
in their entirety.
20. Successors and Assigns. This Agreement and all of the
----------------------
covenants herein shall be deemed to be covenants running with the land and shall
bind and inure to the benefit of the parties hereto and their successors and
assigns.
-25-
21. Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall constitute one and the same instrument.
22. Lien Law. This Agreement is made subject to the trust fund
--------
provisions of Section 13 of the New York Lien Law.
23. Further Assurances. Mortgagor, at its expense, will execute,
------------------
acknowledge and deliver or cause to be executed, acknowledged and delivered all
such instruments and take all such action as Mortgagee from time to time may
reasonably request in order that Mortgagee may obtain the full benefits of this
Agreement, the Notes, the Mortgage, the Consolidation Agreement, the Assignment
of Rents, the Assignment of Leases, the Cash Collateral Agreement, the
Environmental Indemnity and the other Loan Documents, and the full benefits of
the rights, powers and remedies intended to be granted thereby.
[Remainder of page intentionally left blank]
-26-
IN WITNESS WHEREOF, the parties hereto have caused this Note and
Mortgage Modification and Spreader Agreement to be duly executed as of the day
and year first above written.
MORTGAGOR:
KENVIC ASSOCIATES, A New York
General Partnership
By:
-----------------------------------
Xxxxxxx Xxxxxxxxx, General
Partner of Kenvic Associates
By:
-----------------------------------
Xxxxxxx Xxxxxxxxx, General
Partner of Kenvic Associates
By: Gladwater Associates, a
New York Limited Partnership,
as a General Partner of
Kenvic Associates
By:
------------------------------
Xxxxxxx Xxxxxxxxx,
as a General Partner of
Gladwater Associates
By:
------------------------------
Xxxxxxx Xxxxxxxxx,
as a General Partner of
Gladwater Associates
By: Vic Associates, a New York
Limited Partnership, as a
General Partner of Kenvic
Associates
By: General Chemical and
Supply Co., Inc., as a
General Partner of Vic
Associates
By:
---------------------------
Title:
-27-
MORTGAGEE:
XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts
corporation
By:
-------------------------------------
Title:
-00-
XXXXX XX XXX XXXX )
: ss:
COUNTY OF NEW YORK )
On this ___ day of December, 1995, before me personally came
Xxxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, to me known to be the persons who
executed the foregoing instrument, and who, being duly sworn by me, did depose
and say that they are general partners of Kenvic Associates, a general
partnership duly organized under the laws of the State of New York, having its
principal place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and
that they have authority to sign the foregoing instrument as general partners
of, and for and in behalf of, Kenvic Associates, and they acknowledged to me
that they executed the same as the act and deed of said firm.
----------------------------------------
Notary Public
-00-
XXXXX XX XXX XXXX )
: ss:
COUNTY OF NEW YORK )
On this ___ day of December, 1995, before me personally came
Xxxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, to me known to be the persons who
executed the foregoing instrument, and who, being duly sworn by me, did depose
and say that they are the general partners of Gladwater Associates, a limited
partnership duly organized under the laws of the State of New York, having its
principal place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; that
said limited partnership is a general partner of Kenvic Associates, a general
partnership duly organized under the laws of the State of New York, having its
principal place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and
that they have authority to sign the foregoing instrument in the firm name of
Gladwater Associates, as a general partner of, and for and in behalf of, Kenvic
Associates, and they acknowledged to me that they executed the same as the act
and deed of said firms for the uses and purposes therein mentioned.
----------------------------------------
Notary Public
-00-
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On this____day of December, 1995, before me personally
came_____________, to me known, and who, being duly____________ sworn by me,
did depose and say that he resides at________________________________; that he
is the ____________ of General Chemical and Supply Co., Inc., a Delaware
corporation, the general partner of Vic Associates, a limited partnership duly
organized under the laws of the State of New York, having its principal place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; that Vic Associates is a
general partner of Kenvic Associates, a general partnership duly organized under
the laws of the State of New York, having its principal place of business at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; that General Chemical and Supply Co.,
Inc., acting as a general partner of, and for and in behalf of, Vic Associates,
acting as a general partner of, and for and in behalf of, Kenvic Associates,
executed the foregoing instrument as the act and deed of said firms for the uses
and purposes therein mentioned.
----------------------------------------
Notary Public
-00-
XXXXXXXXXXXX XX XXXXXXXXXXXXX )
: ss.:
COUNTY OF SUFFOLK )
On this ____ day of December, 1995, before me personally came
____________, to me known to be the person who executed the foregoing
instrument, and who, being duly sworn by me, did depose and say that he resides
at _____________________; that he is a _______________ of Xxxx Xxxxxxx Mutual
Life Insurance Company, the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he signed his name
thereto by like order.
----------------------------------------
Notary Public
-00-
Xxxxxxx X-0
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Exhibit A-2
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-34-
Exhibit B
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Consolidated Mortgages
----------------------
-35-
Exhibit C
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Amendment and Restatement of First Seven Paragraphs of Notes
------------------------------------------------------------
"FOR VALUE RECEIVED, KENVIC ASSOCIATES (the "Maker"), a general
partnership formed under the laws of the State of New York, promises to pay to
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY (the "Payee") or order, the principal
sum of ONE HUNDRED AND EIGHTY MILLION DOLLARS ($180,000,000) with interest
(computed on the basis of a 360-day year of twelve 30-day months) on the unpaid
balance of such principal amount from and after January 1, 1996, (i) so long as
-
no Event of Default (as defined in the Mortgage referred to below) shall have
occurred and be continuing, at the rate of eight and seventy-five one-hundredths
per centum (8.75%) per annum, and (ii) after such an Event of Default shall have
--
occurred and while it be continuing, at the rate of thirteen and seventy-five
one-hundredths per centum (13.75%) per annum, until such principal amount shall
become due and payable (whether at maturity or on a date fixed for any
installment payment or any prepayment or by declaration or acceleration or
otherwise), payable in installments as provided below, and with interest on any
overdue principal (whether during a grace period, if any, or otherwise)
(including any overdue prepayment of principal) and premium, if any, and (to the
extent permitted under applicable law) on any overdue interest (whether during a
grace period, if any, or otherwise), at the rate of thirteen and seventy-five
one-hundredths per centum (13.75%) per annum until paid, payable as provided
below or, at the option of the holder hereof, on demand.
Payments of principal, premium, if any, and interest in respect of
this Note shall be made in lawful money of the United States of America at the
home office of the above-named Payee at Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000,
Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other place within the United States as
the holder hereof shall have designated to the Maker in writing.
This Note shall be payable by Maker to Payee (i) on January 10,
-
1996, in an amount equal to interest calculated at an annual rate of 9.75% per
annum for the period from December 1, 1995 through and including December 31,
1995, (ii) on the first day of each calendar month commencing on February 1,
--
1996 and ending on January 1, 2000, in installments of interest only in the
amount of One Million Three Hundred Twelve Thousand Five Hundred Dollars
($1,312,500) each, to be applied to accrued interest on the Notes, and (iii) on
---
the first day of each calendar month from and after February 1, 2000 through and
including December 1, 2002, in installments of combined principal and
-36-
interest in the amount of One Million Four Hundred Sixteen Thousand Sixty
Dollars and Seventy-Three Cents ($1,416,060.73), with each of such installments
to be applied first to the payment of accrued interest under the Notes, and then
to the reduction of the outstanding principal amount due under the Notes. On
January 1, 2003, Mortgagor shall pay to Mortgagee the entire outstanding
principal amount due under the Notes, together with all interest accrued
thereon, and all other sums and amounts payable in respect of the Notes and the
Mortgage.
This Note evidences the same principal indebtedness that has been
evidenced and secured by the notes and mortgages defined, respectively, as the
"Existing Notes" and the "Existing Mortgages" in the Consolidation, Extension
and Modification Agreement, dated as of May 11, 1988, between the Maker and the
Payee (the "Consolidation Agreement"), and does not secure any new or further
-----------------------
principal indebtedness. The Existing Notes and the Existing Mortgages were
consolidated, extended and modified by the Consolidation Agreement, and this
Note does not represent any additional principal indebtedness other than the
principal indebtedness which is included or under any contingency may be secured
by the Existing Notes. The Consolidation Agreement, as amended by (i) that
-
certain Modification Agreement, dated as of May 30, 1990, (ii) that certain Note
--
and Mortgage Modification Agreement, dated as of July 23, 1992, and (iii) that
---
certain Note and Mortgage Modification and Spreader Agreement, dated as of
December 29, 1995, and as further amended, modified or supplemented, from time
to time, shall be referred to herein as the "Mortgage".
The holder of this Note is entitled to the benefits of the
security provided for in the Mortgage and 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 holder of this Note and the Maker in
respect of such security. The holder of this Note may enforce the agreements of
the Maker contained in the Mortgage and exercise the remedies provided for
thereby or otherwise in respect thereof, all in accordance with the terms
thereof.
Upon not less than 30 nor more than 90 days' prior written notice
to Payee, Maker may, at its option, prepay the entire (but not less than the
entire) aggregate principal of this Note at the time outstanding, at the
principal amount so prepaid, together with unpaid interest on this Note accrued
to the date of such prepayment plus a premium equal to the greater of
(i) the product obtained by multiplying (x) the difference
-
obtained by subtracting from 8.911% the yield rate
-37-
on United States Treasury Notes due on or about the maturity date
of the Notes as such yield rate is reported in The Wall Street
---------------
Journal or other similar publication on the fifth business day
-------
preceding the prepayment date or, if no yield rate on United
States Treasury Notes is obtainable, at the yield rate of the
issue most closely equivalent to United States Treasury Notes, as
determined by Payee in its reasonable discretion and (y) the
-
number of years and fraction thereof remaining from the prepayment
date to the scheduled maturity date of this Note, and (z) the
-
amount of the prepaid principal balance; and
(ii) 1% of the amount of the prepaid principal balance.
In addition, on October 1, 2002 and on any day thereafter, upon
not less than 30 days' prior written notice, Maker may prepay the entire (but
not less than the entire) aggregate principal of this Note at the time
outstanding, at the principal amount so prepaid, together with unpaid interest
on this Note accrued to the date fixed for such prepayment, without premium.
-38-
Exhibit D
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Environmental Indemnity and Agreement
-------------------------------------
-39-
