MODIFICATION AGREEMENT
Exhibit
10.20.1
THIS MODIFICATION AGREEMENT, dated as of July 31, 2007 (as amended, restated, replaced,
supplemented or otherwise modified from time to time, this “Agreement”), between COLUMN FINANCIAL,
INC., having an address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Lender”), CSE CASABLANCA
HOLDINGS II LLC having its principal place of business at 0000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxx Xxxxx, XX 00000 (“Borrower”).
RECITALS
A. Lender made a certain mezzanine loan (the “Loan”) to Borrower in the original principal
amount of $36,140,981.00 subject to and in accordance with the terms of that certain Mezzanine Loan
Agreement dated as of July 31, 2007 (the “Existing Loan Agreement”).
B. The Loan is evidenced by that certain Promissory Note dated as of July 31, 2007 in the
principal amount of $36,140,981.00 (the “Note”), and is secured by, among other things, that
certain Pledge and Security Agreement (Mezzanine Loan) dated as of July 31, 2007 executed by
Borrower in favor of Lender (the “Pledge”).
C. Lender and Borrower desire to modify the Existing Loan Agreement subject to and in
accordance with the terms and provisions of this Agreement.
AGREEMENT
1. Definitions. All capitalized terms used but not defined in this Agreement shall
have the meanings given to them in the Existing Loan Agreement.
2. Modifications to Existing Loan Agreement.
(a) Article I of the Existing Loan Agreement is hereby amended as follows:
(i) The definition of “Bankruptcy Action” is modified by deleting the word
“Collateral” in clause (d) and inserting in its place the word “Property”.
(ii) The last sentence within the definition of “Indebtedness” is modified by deleting
the word “Borrower” and inserting in its place the word “Owner”.
(iii) The definition of “Liabilities” is hereby deleted in its entirety.
(iv) The definition of “Lien” is modified by inserting the word “Owner,” immediately
prior to the word “Borrower”.
(v) The definition of “Liquidation Event” is modified by adding to the beginning of
clause (i) “any Casualty, or”.
(vi) The definition of “Net Liquidation Proceeds after Debt Service” is modified by
(1) inserting the words “or Borrower” after the word “Owner”, in the first instance where
the word “Owner” is used therein, and (2) by inserting the words “or Senior Lender’s” after
the word “Lender’s” in clause (i) thereof.
(vii) The definition of “Permitted Encumbrances” is modified by inserting the word
“Senior,” within clause (d) immediately prior to the words “Loan Documents”.
(viii) The definition of “Principal” is hereby deleted in its entirety and replaced
with the following: “shall mean (i) with respect to Borrower, the Special Purpose Entity
which is the managing member of Borrower, and (ii) with respect to Owner, the Special
Purpose Entity which is the (a) the managing member of Owner in the event that such Owner
is a limited liability company, or (b) general partner of Owner in the event such Owner is
a limited partnership.”
(ix) The definition of “Special Purpose Entity” is modified as follows:
(A) By inserting the phrase “since the date of its formation, and” immediately
following the phrase “which at all times”;
(B) By deleting the word “Properties” in clause (c) and inserting in its place
the word “Collateral”; and
(C) By deleting the phrase “or in name franchised or licensed to it by an
entity other than an Affiliate of Borrower” in clause (p).
(x) The following new definition is hereby added to Article I of the Existing Loan
Agreement:
Term: shall mean the entire term of this Agreement,
including any applicable extension periods, which shall
expire upon repayment in full of the Debt and full
performance of each and every obligation to be performed by
Borrower pursuant to the Loan Documents.
(b) All references in the Existing Loan Agreement to the “Interest Rate Cap Agreement” shall
have the meaning ascribed to the term in the Collateral Assignment of Interest Rate Cap Agreement
(Mezzanine Loan) dated as of July 31, 2007 by CSE Mortgage LLC (“CSE Mortgage”) in favor of Lender.
(c) The following sentence is hereby added to Section 1.2 of the Existing Loan Agreement
before the fourth sentence: “The words “Borrower shall cause Owner to” or “Borrower shall cause
Owner not to” or “Borrower shall not permit Owner to” (or words of
similar meaning), as used herein, shall mean Borrower shall cause or permit Owner, or shall
cause or permit the Principal of Owner to cause or permit Owner, to act or not to so act, as
applicable.”
(d) Section 2.1.4 of the Existing Loan Agreement is hereby modified by inserting at the end
thereof the phrase “for the purposes permitted under the Senior Loan Documents”.
(e) Section 2.2.7(a) of the Existing Loan Agreement is hereby modified by deleting the word
“Lockbox” in clause (iii) thereof and inserting in its place the words “Cash Management”.
(f) Section 2.4.2(a) is hereby amended by inserting the words “due to a Casualty or
Condemnation” at the end thereof.
(g) Section 2.5.2 of the Existing Loan Agreement is hereby modified by deleting the word
“Mortgage” and inserting in its place the word “Pledge”.
(h) Section 2.6.1(c) of the Existing Loan Agreement is hereby amended by deleting the words
“Senior Cash Management Account” and inserting in its place the words “Senior Lockbox Account”.
(i) Section 2.8(l) is hereby amended by inserting the words “(as defined in the Senior Loan
Agreement”) after the words “Special Purpose Entity”.
(j) All references in section 2.8(s) of the Existing Loan Agreement to the term “Substituted
Collateral” are deleted and replaced with the term “Substitute Collateral”.
(k) Section 4.1.30(a) of the Existing Loan Agreement is hereby amended by deleting the word
“is” in clause (i) and inserting in its place the words “and Owner are”.
(l) Section 5.1.11(c) of the Existing Loan Agreement is hereby amended by deleting the words
“and the Rollover Reserve Fund” in clause (ii).
(m) All references in the Existing Loan Agreement to the term “Alteration” are deleted and
replaced with the term “alteration”.
(n) Section 5.1.12 of the Existing Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“Business and Operations. Borrower will, and will
cause Owner to, continue to engage in the businesses presently
conducted by it as and to the extent the same are necessary,
for the ownership, maintenance, management, and operation of
the Collateral and the Property. Borrower will, and will
cause Owner to, qualify to do business and will remain in good
standing under the laws of each jurisdiction as and to the
extent
the same are required for the ownership, maintenance,
management, and operation of the Collateral and the Property.”
(o) Section 5.1.17 of the Existing Loan Agreement is hereby amended by adding the following at
the end thereof:
“Borrower shall in a timely manner cause Owner to observe,
perform and fulfill each and every covenant, term and
provision of each Senior Loan Document executed and delivered
by, or applicable to, Owner, and shall not permit Owner to
enter into or otherwise suffer or permit any amendment,
waiver, supplement, termination or other modification of any
Senior Loan Document executed and delivered by, or applicable
to, Owner without the prior consent of Lender.”
(p) Section 5.1.23(a)(v) of the Existing Loan Agreement is hereby amended by deleting the
phrase “To the extent Borrower has such right under the applicable Operating Lease” in the third
(3rd) sentence and inserting in its place the phrase “To the extent Owner has such right
under the applicable Operating Lease”.
(q) Section 5.1.23(k) of the Existing Loan Agreement is hereby amended by deleting the phrase
“or impose remedies upon Borrower” and inserting in its place the phrase “or impose remedies upon
Owner”.
(r) Section 7.1 of the Existing Loan Agreement is hereby amended by (1) inserting the phrase
“and the Senior Loan Documents” at the end of the first parenthetical, and (2) deleting the words
“Cash Management Agreement” and inserting in its place the words “Cash Management Account”.
(s) Section 8.1(a)(iv) of the Existing Loan Agreement is hereby amended by deleting the words
“Article 6 of the Mortgage” and inserting in its place the words “the Pledge”.
(t) The second to last paragraph of Section 9.4 is hereby modified as follows:
(A) By deleting the phrase “the additional covenant to comply with any assumption in
the Insolvency Opinion in any Additional Insolvency Opinion” in clause (ii) thereof and
inserting in its place the phrase “any additional covenant set forth in the Insolvency
Opinion and in any Additional Insolvency Opinion which is not otherwise set forth herein”.
(B) By inserting the phrase “or Owner” after the phrase “if Borrower”, and by inserting
the phrase “or the Collateral” after the phrase “Individual Properties” in the first
instance the phrase “Individual Properties” is used, and by
inserting the word “to” after the phrase “part of the Collateral”, in each instance in
clause (iii) thereof.
(u) Section 10.3(A) of the Existing Loan Agreement is hereby amended by deleting the
following:
“EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION,
PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY
INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER
LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING
TO THE LAW OF THE STATE IN WHICH THE APPLICABLE INDIVIDUAL
PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE
FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW
OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION,
VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF
THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER”.
(v) All references in the Existing Loan Agreement to the term “Pledged Company Interests” are
deleted and replaced with the term “Pledged Collateral”.
(w) All references in the Existing Loan Agreement to the Loan Agreement shall mean the
Existing Loan Agreement, as modified by this Agreement.
3. Representations and Warranties. Without limiting in any way any representation or
warranty in any Loan Document, Borrower represents and warrants to Lender as follows:
(a) The execution and delivery by Borrower of this Agreement and Borrower’s performance of its
obligations hereunder provided for in this Agreement (i) have been duly authorized by all requisite
action on the part of Borrower, (ii) will not violate any provision of any applicable legal
requirements, any order, writ, decree, injunction or demand of any court or other governmental
authority, any organizational document of Borrower or any indenture or agreement or other
instrument to which Borrower is a party or by which the Borrower is bound, (iii) will not be in
conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a
default under, or result in the creation or imposition of any lien of any nature whatsoever upon
any of the property or assets of the Borrower pursuant to, any indenture or agreement or instrument
and (iv) have been duly executed and delivered by Borrower. Except for those obtained or filed on
or prior to the date hereof, the
Borrower is not required to obtain any consent, approval or authorization from, or to file any
declaration or statement with, any governmental authority or other agency in connection with or as
a condition to the execution, delivery or performance of this Agreement. This Agreement has been
duly authorized, executed and delivered by Borrower.
(b) This Agreement is a legal, valid and binding obligation of Borrower, enforceable against
the Borrower in accordance with its terms, subject to bankruptcy, insolvency and other limitations
on creditors’ rights generally and to equitable principles.
(c) There are no existing claims or causes of action by Borrower against Lender relating to or
arising out of the Loan, and the Loan Documents and there are no offsets or defenses by Borrower to
the payment of any amounts required to be paid by Borrower under the Loan Documents, or otherwise
to the enforcement by Lender of the Loan Documents.
(d) Borrower agrees that in the event Borrower elects to extend the Loan beyond April 9, 2009
in accordance with the Loan Documents, (i) Borrower shall deliver to Lender an Interest Rate Cap
Agreement and an assignment of such Interest Rate Cap Agreement for the benefit of Lender for such
extended term, each in the form executed by CSE Mortgage LLC in connection with the initial closing
of the Loan, and (ii) Lender shall not be required to accept an Interest Rate Cap Agreement or any
assignment to Lender thereof from any entity or Person other than Borrower.
4. Miscellaneous.
(a) All references in the Loan Documents to the “Loan Agreement” shall hereafter mean the
Existing Loan Agreement, as modified by this Agreement, and as it may be amended, modified,
restated, consolidated or supplemented from time to time after the date hereof.
(b) This Agreement constitutes the entire agreement among the parties concerning its subject
matter. This Agreement shall inure to the benefit of and be binding upon the parties and their
respective heirs, successors and assigns. This Agreement may be executed in two or more
counterparts and by facsimile each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
(c) Borrower and Lender confirm and ratify the terms and provisions of the Loan Documents, as
modified hereby, and agree that the Loan Documents, as so modified, remain in full force and effect
as of the date hereof, and nothing herein contained shall be construed to impair the security or
affect the first priority of the lien of the Pledge, nor impair any rights or powers which Lender
or its successors may have for nonperformance of any term of any of the Loan Documents. Borrower
and Lender further reaffirm and ratify their respective obligations to be bound by and perform all
of the terms of the Loan Documents.
(d) This Agreement shall be governed by and construed in accordance with the laws of the State
of New York (without giving effect to New York’s principles of conflict of law).
(Signatures on following page)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
duly authorized representatives, all as of the day and year first above written.
| BORROWER: CSE CASABLANCA HOLDINGS II LLC, a Delaware limited liability company |
||||
| By: | /S/ XXXXX X. XXXXXXXXXX | |||
| Name: | Xxxxx X. Xxxxxxxxxx | |||
| Title: | President | |||
| LENDER: COLUMN FINANCIAL, INC. |
||||
| By: | /S/ XXXXX XXXXX | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President | |||
{Signatures continue on the next page}
CSE Mortgage LLC hereby joins in this
Agreement for the purposes of acknowledging
the terms hereof and agreeing to abide by the
terms hereof to the extent applicable.
CSE MORTGAGE LLC, a Delaware limited
liability company
liability company
By:
|
/S/ XXXXX X. XXXXXXXXXX | |||
| Name: Xxxxx X. Xxxxxxxxxx | ||||
| Title: Co-President |
[End of Signatures]
