LOAN EXTENSION AGREEMENT
Exhibit 10.23
Loan Nos: 304101142, 300801023,
301941001 and 301941002
This LOAN EXTENSION AGREEMENT (this “Agreement”) is made effective as of February 9, 2016, by and among DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee in trust for Holders of CGBAM Commercial Mortgage Trust 2014-HD, Commercial Mortgage Pass‑Through Certificates, Series 2014-HD, in its capacity as the current holder of Note A-1 and Note A-2 (each as defined below), on its own behalf (in such capacity, the “Note A Holder”) and on behalf of the current Note B Holder (as defined below) in accordance with the terms of and as authorized under the TSA and Co-Lender Agreement (each as defined below) and XXXXX XXXXXX HOLDINGS LLC, a Delaware limited liability company (“Xxxxxx Holdings Borrower”), 58th STREET BAR COMPANY LLC, a Delaware limited liability company (“58th Street Bar Borrower”), XXXXXX LEASECO LLC, a New York limited liability company (“Xxxxxx Leaseco Borrower”), and BEACH HOTEL ASSOCIATES LLC, a Delaware limited liability company (“Delano Borrower”, together with Xxxxxx Holdings Borrower, 58th Street Bar Borrower and Xxxxxx Leaseco Borrower, individually and/or collectively, “Borrower”).
RECITALS:
A.Capitalized terms used but not defined herein shall have the meanings assigned such terms in that certain Loan Agreement dated as of February 6, 2014, between Borrower and Citigroup Global Markets Realty Corp. (“Citi”) and Bank of America, N.A. (“BofA” and individually and collectively with Citi, “Original Lender”), as amended pursuant to that certain First Amendment of Loan Agreement and Other Loan Documents dated as of April 8, 2014, and that certain Second Amendment to Loan Agreement and Other Loan Documents, dated as of May 22, 2014 (collectively, as amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”).
B.The Loan is evidenced by: (i) that certain Promissory Note A-1 by Borrower in favor of Citi in the original principal amount of $125,000,000.00 (“Note A-1”); (ii) that certain Promissory Note A-2 by Borrower in favor of BofA in the original principal amount of $125,000,000.00 (“Note A-2” and collectively with Note A-1, “Note A”); (iii) that certain Promissory Note B-1 by Borrower in favor of Citi in the original principal amount of $25,000,000.00 (“Note B-1”); and (iv) that certain Promissory Note B-2 by Borrower in favor of BofA in the original principal amount of $25,000,000.00 (“Note B-2” and collectively with Note B-1, “Note B”).
C.Original Lender assigned, sold and transferred its interest in the Loan and all Loan Documents (exclusive of Note B-1 and Note B-2) to Note A Holder and Note A Holder is the current holder of all of Original Lender’s interest in such portion of the Loan and such Loan Documents.
D.Athene Annuity and Life Company is the current holder of Note B (together with its successor and assigns, the “Note B Holder”) and Note B Holder is the current holder of all of Original Lender’s interest in Note B.
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E.Pursuant to the terms and conditions of that certain Co-Lender Agreement dated as of April 8, 2014, by and between Citi, as the initial holder of Note A-1 and Note B-1, and BofA as the initial holder of Note A-2 and Note B-2 ( the “Co-Lender Agreement”), and the terms of that certain Trust and Servicing Agreement, dated as of May 9, 2014 (the “TSA”), Xxxxx Fargo Bank, National Association, in its capacity as Master Servicer, is authorized to act on behalf of the Note A Holder and Note B Holder (individually and collectively and together with each of their respective successors and/or assigns, “Lender”) and to service and administer the Loan in accordance with terms of the TSA and Co-Lender Agreement.
F.As provided in Section 2.9 of the Loan Agreement, Borrower has elected to exercise the first Extension Option (the “First Extension”) and extend the Maturity Date to the first Extended Maturity Date, February 9, 2017 (the “First Extended Maturity Date”).
G.Lender is willing to acknowledge the First Extension, upon and subject to all covenants, terms and conditions herein provided, and on the basis of the facts and statements contained in the foregoing recitals.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Lender and Borrower agree as follows:
1.First Extension.
a.Subject to the conditions stated in Subsection 1c below, Lender and Borrower agree that the Maturity Date is extended from the stated Maturity Date to the First Extended Maturity Date. All references to the Maturity Date in the Loan Documents are hereby changed to refer to the Stated Maturity Date as extended to the First Extended Maturity Date.
b.Borrower agrees that Borrower shall continue to make monthly payments as provided under the Loan Agreement and Note on each Monthly Payment Date up to and including the First Extended Maturity Date.
c.The Lender’s consent to the First Extension is subject to the satisfaction of the following conditions, all of which shall be satisfied on or before 5:00 pm EST on February 9, 2016, other than the condition set forth below in subsection iv which shall be satisfied on or before 5:00 pm EST on February 24, 2016:
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An original copy of this Agreement executed by Borrower shall be delivered to Lender (provided, that Lender shall accept an electronic copy with an original to follow by overnight delivery); |
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Borrower has provided to Lender one or more Replacement Interest Rate Cap Agreements from a Counterparty reasonably acceptable to Lender having the Minimum Counterparty Rating which shall be effective commencing on the first day of the first Extension Period and shall have a maturity date not earlier than the last day of the Interest Accrual Period related to the First Extended Maturity Date; |
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Borrower has provided an acceptable replacement opinion from counsel for the Counterparty for the Replacement Interest Rate Cap Agreement meeting the requirements of Section 2.8(f) of the Loan Agreement; |
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Borrower shall have delivered a principal prepayment of $18,798,030.13 to Lender (together with any applicable Interest Shortfall), which the parties acknowledge and agree will enable Borrower to meet a Debt Yield of not less than 7.25% as required under Section 2.9(e) of the Loan Agreement; |
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Lender shall have received satisfactory evidence that Mezzanine A Borrower has exercised the first Mezzanine A Extension Option in accordance with the terms of the Mezzanine A Loan Agreement; |
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Lender shall have received satisfactory evidence that Mezzanine B Borrower has exercised the first Mezzanine B Extension Option in accordance with the terms of the Mezzanine B Loan Agreement; and |
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Borrower shall have paid all amounts due and payable by Borrower pursuant to the Loan Documents as of the stated Maturity Date and all outstanding out-of-pocket costs and expenses of Lender incurred in connection with the First Extension, including reasonable legal fees and expenses of the Lender’s counsel. Lender’s wiring instructions for the payment of the amounts due under Subsection (v) above and this Subsection (viii) are attached hereto as Exhibit A. |
2.References; No Further Modifications. All references in the Loan Documents to the Note shall be deemed to be references to the Note as extended hereby. Except as extended hereby, the Note and other Loan Documents shall remain unchanged and in full force and effect.
3.No Event of Default; Payment of TLG Promissory Notes and Convertible Notes. Borrower, by its execution of this Agreement, represents and warrants that, as of the date hereof: (i) no Event of Default has occurred and is continuing; and (ii) the TLG Promissory Notes and Convertible Notes have been paid in full.
4.Reaffirmation of Borrower. Borrower hereby renews, reaffirm, ratifies and confirms the Loan Documents to which they are a party and acknowledge and agree that the Loan Documents remain in full force and effect without impairment and without modification (except as specifically provided herein), and that no rights or remedies of Lender under the Loan
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Documents have been waived. Borrower agrees to continue to pay, perform, and discharge each and every obligation of payment and performance under, pursuant to and as set forth in the Loan Documents to which it is a party at the time, in the manner and otherwise in all respects as therein provided. Borrower hereby acknowledges, agrees and warrants that there are no rights of set-off or counterclaim, nor any defenses of any kind, whether legal, equitable or otherwise, which would enable Borrower to avoid or delay timely performance of its obligations under the Loan Documents.
6.Amendment and Waiver. No term, covenant, agreement or condition of this Agreement may be amended unless in a writing executed by all of the parties hereto. No waiver of any term, covenant, agreement or condition of this Agreement by a party shall be effective unless in a writing executed by the waiving party.
7.Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not, except that the assignment of the rights and obligations of the Borrower hereunder shall be subject to the restrictions on transfers and assignments contained in the Loan Documents.
8.Counterparts. This Agreement may be executed by one or more of the parties to this Agreement in any number of separate counterparts, each of which, when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one and the same instrument.
9.Integration and Severability; Release. This Agreement, taken together with the Loan Documents, embodies the entire agreement and understanding between the Lender and the Borrower with respect to the matters addressed herein, and supersedes all prior agreements and understandings relating to the subject matter hereof. In case any one or more of the provisions contained in this Agreement or in any instrument contemplated hereby, or any application thereof, shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein, and any other application thereof, shall not in any way be affected or impaired thereby.
10.Conflict with Existing Loan Documents. Notwithstanding any provision to the contrary contained in this Agreement or any of the Loan Documents, if any of the provisions of the Loan Documents conflict with or are inconsistent with the provisions of this Agreement, this Agreement shall control and govern.
11.Captions. The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.
12.Governing Law. WITH RESPECT TO ANY ACTION OR DISPUTE BETWEEN BORROWER AND LENDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH SECTION 17.2 OF THE LOAN AGREEMENT.
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13.Loan Extension Agreement. It is the intention and understanding of the parties hereto that this Agreement shall act as an extension of the Loan and that this Agreement shall not act as a novation of such Loan.
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Loan Nos: 304101142, 300801023,
301941001 and 301941002
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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LENDER: |
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee in trust for Holders of CGBAM Commercial Mortgage Trust 2014-HD, Commercial Mortgage Pass‑Through Certificates, Series 2014-HD, in its capacity as the current Note-A Holder, on its own behalf and on behalf of the current Note B Holder |
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By: |
XXXXX FARGO BANK, NATIONAL ASSOCIATION, in its capacity as Master Servicer as authorized under the Co-Lender Agreement and TSA |
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/s/ Xxxxxx Xxxxxx |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Asset Manager |
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BORROWER: |
XXXXX XXXXXX HOLDINGS LLC, |
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a Delaware limited liability company |
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Xxxxxx Xxxxxx Senior Mezz LLC, |
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a Delaware limited liability company, |
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its Managing Member |
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Xxxxxx Xxxxxx Junior Mezz LLC, |
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a Delaware limited liability company, |
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its Managing Member |
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By: |
Morgans Group LLC, |
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a Delaware limited liability company, |
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its Managing Member |
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a Delaware corporation, |
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its Managing Member |
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By: |
/s/ Xxxxxxx Xxxxxxxxx |
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Name: |
Xxxxxxx Xxxxxxxxx |
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Title: |
Chief Financial Officer |
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Loan Nos: 304101142, 300801023,
301941001 and 301941002
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00XX XXXXXX BAR COMPANY LLC, |
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a Delaware limited liability company |
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Xxxxxx Pledgor LLC, |
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a Delaware limited liability company, |
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its Managing Member |
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Xxxxx Xxxxxx Holdings LLC, |
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its Managing Member |
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Xxxxxx Xxxxxx Senior Mezz LLC, |
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a Delaware limited liability company, |
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its Managing Member |
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Xxxxxx Xxxxxx Junior Mezz LLC, |
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a Delaware limited liability company, |
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its Managing Member |
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Morgans Group LLC, |
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a Delaware limited liability company, |
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its Managing Member |
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a Delaware corporation, |
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its Managing Member |
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Xxxxxxx Xxxxxxxxx |
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Chief Financial Officer |
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LEGAL02/36162779v3
Loan Nos: 304101142, 300801023,
301941001 and 301941002
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XXXXXX LEASECO LLC, |
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a New York limited liability company |
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Xxxxxx Managing Member LLC, |
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a Delaware limited liability company, |
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its Managing Member |
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Xxxxx Xxxxxx Holdings LLC, |
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Xxxxxx Xxxxxx Senior Mezz LLC, |
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Xxxxxx Xxxxxx Junior Mezz LLC, |
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Morgans Group LLC, |
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Xxxxxxx Xxxxxxxxx |
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Chief Financial Officer |
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LEGAL02/36162779v3
Loan Nos: 304101142, 300801023,
301941001 and 301941002
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BEACH HOTEL ASSOCIATES LLC, |
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a Delaware limited liability company |
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Xxxxxx Xxxxxx Senior Mezz LLC, |
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a Delaware limited liability company, |
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its Managing Member |
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Xxxxxx Xxxxxx Junior Mezz LLC, |
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a Delaware limited liability company, |
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its Managing Member |
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Morgans Group LLC, |
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a Delaware limited liability company, |
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a Delaware corporation, |
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Name: |
Xxxxxxx Xxxxxxxxx |
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Chief Financial Officer |
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LEGAL02/36162779v3
Loan Nos: 304101142, 300801023,
301941001 and 301941002
Wire Instructions
LEGAL02/36162779v3
