SECOND AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS Dated as of May 22, 2014 Among HENRY HUDSON HOLDINGS LLC, 58th STREET BAR COMPANY LLC, HUDSON LEASECO LLC and BEACH HOTEL ASSOCIATES LLC, individually and/or collectively, as the context may...
Exhibit 10.1
SECOND AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN
DOCUMENTS
Dated as of May 22, 2014
Among
XXXXX XXXXXX HOLDINGS LLC, 58th STREET BAR COMPANY LLC, XXXXXX
LEASECO LLC and BEACH HOTEL ASSOCIATES LLC,
individually and/or collectively, as the context may require, as Borrower
and
CITIGROUP GLOBAL MARKETS REALTY CORP. and BANK OF AMERICA, N.A.,
collectively, as Lender
SECOND AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
THIS SECOND AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS, dated as of May 22, 2014 (this “Amendment”), is by and among CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation, having an address at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and/or assigns, “Citi”) and BANK OF AMERICA, N.A., a national banking association, having an address at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and/or assigns, “BOA” and together with Citi and their respective successors and/or assigns, “Lender”) and XXXXX XXXXXX HOLDINGS LLC, a Delaware limited liability company, 00xx XXXXXX BAR COMPANY LLC, a Delaware limited liability company, XXXXXX LEASECO LLC, a New York limited liability company and BEACH HOTEL ASSOCIATES LLC, a Delaware limited liability company, each having its principal place of business at c/o Morgans Hotel Group, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (individually and/or collectively, as the context may require, together with its successors and/or assigns, “Borrower”).
WHEREAS, Lender has made a loan in the original principal amount of Three Hundred Million Dollars ($300,000,000) (the “Loan”) to Borrower pursuant to that certain Loan Agreement, dated as of February 6, 2014, by and between Borrower and Lender, as amended by that certain First Amendment to Loan Agreement and Other Loan Documents, dated as of April 8, 2014, by and between Borrower and Lender (as so amended, the “Original Loan Agreement”), which Loan is evidenced by the Original Loan Agreement and the other Loan Documents (as defined in the Original Loan Agreement); and
WHEREAS, Borrower and Lender now desire to amend the Original Loan Agreement (the Original Loan Agreement, as amended by this Amendment, and as the same may be further amended, replaced, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) and certain other Loan Documents, each as more specifically set forth herein.
NOW, THEREFORE, in consideration of the agreements set forth in this Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows.
Section I. Modification to Original Loan Agreement.
(i) Section 1.1 of the Original Loan Agreement is hereby amended to replace the definition of “Component” in its entirety to read as follows:
“Component” shall mean, individually, any one of Component A, Component B, Component C , Component D or Component E.
(ii) Section 1.1 of the Original Loan Agreement is hereby amended to replace the definition of “Components” in its entirety to read as follows:
“Components” shall mean, collectively, Component A, Component B, Component C, Component D and Component E.
(iii) Section 1.1 of the Original Loan Agreement is hereby amended to delete the definition of “Component F” in its entirety.
(iv) Section 1.1 of the Original Loan Agreement is hereby amended to add the following definition of “LIBOR Spread” in the appropriate alphabetical order:
“LIBOR Spread” shall mean, collectively, the Note A LIBOR Spread and the Note B LIBOR Spread.
(v) Section 1.1 of the Original Loan Agreement is hereby amended to replace the definition of “Note A LIBOR Spread” in its entirety to read as follows:
“Note A LIBOR Spread” shall mean, with respect to each Component, the following amounts, as the same may be reallocated pursuant to Section 11.1(b) hereof:
(a) Component A, 4.27414%;
(b) Component B, 4.21740%;
(c) Component C, 4.11740%;
(d) Component D, 2.01740%; and
(e) Component E, 3.01740%”
(vi) The final sentence of Section 2.6(a) of the Original Loan Agreement is hereby deleted in its entirety and shall be replaced with the following:
“Provided no Event of Default has occurred and is continuing, payments pursuant to this Section 2.6 shall be applied to interest accrued, or to be accrued for the related Interest Accrual Period in which the Monthly Payment Date occurs for each Component of Note A, as follows: (i) first, to the payment of interest then due and payable under Component A; (ii) second, to the payment of interest then due and payable under Component B; (iii) third, to the payment of interest then due and payable under Component C; (iv) fourth, to the payment of interest then due and payable under Component D; and (v) fifth, to the payment of interest then due and payable under Component E.”
(vii) The second sentence of Section 2.7(d) is hereby deleted in its entirety and shall be replaced with the following:
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“Any principal payments received on the Loan when no Event of Default exists shall be applied by Lender between the Components of Note A (a) first, to the reduction of the outstanding principal balance of Component A until reduced to zero, (b) second, to the reduction of the outstanding principal balance of Component B until reduced to zero, (d) third, to the reduction of the outstanding principal balance of Component C until reduced to zero, (e) fourth, the reduction of the outstanding principal balance of Component D until reduced to zero, and (f) fifth, to the reduction of the outstanding principal balance of Component E until reduced to zero.”
(viii) Section 2.11 of the Original Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Section 2.11. Components of the Loan. For the purposes of computing interest payable from time to time on the principal amount of the Note A and certain other computations set forth herein, the principal balance of Note A shall be divided into Components A through E. The principal amount of the Components shall be as follows:
| COMPONENT |
PRINCIPAL AMOUNT | |||
| A |
$ | 95,423,000 | ||
| B |
$ | 39,211,000 | ||
| C |
$ | 29,147,000 | ||
| D |
$ | 38,517,000 | ||
| E |
$ | 55,202,000” | ||
(ix) Amendment to Other Loan Documents. Each of the Loan Documents (other than the Loan Agreement) is hereby amended such that (1) each reference in any of the Loan Documents (other than the Loan Agreement) to the defined terms Component, Components and Note A LIBOR Spread (which defined terms have been modified pursuant to this Amendment) shall be deemed to be a reference to such applicable defined term as so modified, (2) any reference to Component F in any of the Loan Documents (other than the Loan Agreement) shall be deemed to be deleted in its entirety and (3) each reference to the Loan Agreement shall mean the Original Loan Agreement, as modified pursuant to the terms of this Amendment, as the same may be further amended, replaced, restated, supplemented or otherwise modified from time to time.
Section II. Reaffirmation of Guaranty and Environmental Indemnity. In connection with this Amendment, Guarantor hereby:
(a) Consents to and acknowledges this Amendment and acknowledges and agrees that this Amendment shall not impair, reduce or adversely affect the nature of the obligations of Guarantor under the Guaranty or the Environmental Indemnity.
(b) Warrants and represents that there are no defenses, offsets or counterclaims with respect to its obligations under the Guaranty or the Environmental Indemnity.
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(c) Acknowledges that the Guaranty and the Environmental Indemnity and the obligations of Guarantor contained in the Guaranty and the Environmental Indemnity are continuing and in full force and effect.
(d) Hereby reaffirms the Guaranty and the Environmental Indemnity and its obligations thereunder, and acknowledges that this reaffirmation of the Guaranty and the Environmental Indemnity is for the benefit of Lender.
Section III. No Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Lender under the Loan Agreement or any of the other Loan Documents, nor constitute a waiver of any provision of the Loan Agreement or any of the other Loan Documents by any of the parties hereto.
Section IV. No Presumption Against Party Drafting Amendment. Should any provision of this Amendment require judicial interpretation, it is agreed that a court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against any party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared or drafted the same, it being agreed that all parties to this Amendment participated in the preparation hereof.
Section V. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section VI. Ratification. Borrower and Lender hereby ratify and confirm the Loan Agreement, as modified hereby. Except as modified and amended by this Amendment, the Loan, the Loan Agreement and the other Loan Documents and the respective obligations of Lender and Borrower thereunder shall be and remain unmodified and in full force and effect.
Section VII. No Further Modification. No further modification, amendment, extension, discharge, termination or waiver hereof shall be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given.
Section VIII. Governing Law. This Amendment shall be construed and enforced in accordance with the laws of the State of New York (without regard to principles of conflicts of laws). If any provision hereof is not enforceable, the remaining provisions of this Amendment shall be enforced in accordance with their terms.
Section IX. Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
Section X. Entire Agreement. This Amendment constitutes the entire agreement between Borrower and Lender with respect to subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.
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Section XI. Incorporation of Recitals; Defined Terms. The recitals hereto are hereby incorporated into this Amendment as if fully set forth herein. All capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Loan Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their duly authorized representatives, all as of the day and year first above written.
| BORROWER: | ||
| XXXXX XXXXXX HOLDINGS LLC, a Delaware limited liability company | ||
| By: Xxxxxx Xxxxxx Senior Mezz LLC, a Delaware limited liability company, its Managing Member | ||
| By: Xxxxxx Xxxxxx Junior Mezz LLC, a Delaware limited liability company, its Managing Member | ||
| By: Morgans Group LLC, a Delaware limited liability company, its Managing Member | ||
| a Delaware corporation, its Managing Member | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxx | ||
| Title: Chief Financial Officer | ||
[SIGNATURES CONTINUED ON NEXT PAGE]
| 00XX XXXXXX BAR COMPANY LLC, | ||
| a Delaware limited liability company | ||
| By: Xxxxxx Pledgor LLC, a Delaware limited liability company, its Managing Member | ||
| By: Xxxxx Xxxxxx Holdings LLC, a Delaware limited liability company, its Managing Member | ||
| By: Xxxxxx Xxxxxx Senior Mezz LLC, a Delaware limited liability company, its Managing Member | ||
| By: Xxxxxx Xxxxxx Junior Mezz LLC, a Delaware limited liability company, its Managing Member | ||
| By: Morgans Group LLC, a Delaware limited liability company, its Managing Member | ||
| a Delaware corporation, its Managing Member | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxx | ||
| Title: Chief Financial Officer | ||
[SIGNATURES CONTINUED ON NEXT PAGE]
| XXXXXX LEASECO LLC, | ||
| a New York limited liability company | ||
| By: Xxxxxx Managing Member LLC, a Delaware limited liability company, its Managing Member | ||
| By: Xxxxx Xxxxxx Holdings LLC, a Delaware limited liability company, its Managing Member | ||
| By: Xxxxxx Xxxxxx Senior Mezz LLC, a Delaware limited liability company, its Managing Member | ||
| By: Xxxxxx Xxxxxx Junior Mezz LLC, a Delaware limited liability company, its Managing Member | ||
| By: Morgans Group LLC, a Delaware limited liability company, its Managing Member | ||
| a Delaware corporation, its Managing Member | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxx | ||
| Title: Chief Financial Officer | ||
[SIGNATURES CONTINUED ON NEXT PAGE]
| BEACH HOTEL ASSOCIATES LLC, | ||
| a Delaware limited liability company | ||
| By: Xxxxxx Xxxxxx Senior Mezz LLC, a Delaware limited liability company, its Managing Member | ||
| By: Xxxxxx Xxxxxx Junior Mezz LLC, a Delaware limited liability company, its Managing Member | ||
| By: Morgans Group LLC, a Delaware limited liability company, its Managing Member | ||
| a Delaware corporation, its Managing Member | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxx | ||
| Title: Chief Financial Officer | ||
[SIGNATURES CONTINUED ON NEXT PAGE]
| LENDER: | ||
| CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation | ||
| By: | /s/ Xxx Xxxx Xxxxxxx | |
| Name: Xxx Xxxx Xxxxxxx | ||
| Title: Vice President | ||
[SIGNATURES CONTINUED ON NEXT PAGE]
| LENDER: | ||
| BANK OF AMERICA, N.A., a national banking association | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: Managing Director | ||
[NO FURTHER TEXT ON THIS PAGE]
The undersigned hereby acknowledges and consents to Section II of this Second Amendment to Loan Agreement and Other Loan Documents.
| GUARANTOR: | ||
| a Delaware corporation | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxx | ||
| Title: Chief Financial Officer | ||