LEASEHOLD MORTGAGE MODIFICATION AND EXTENSION AGREEMENT
made between
MENDIK REAL ESTATE LIMITED PARTNERSHIP
c/o Mendik Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Mortgagor
and
FGH REALTY CREDIT CORP.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Mortgagee
Dated: As of September 9, 1996
After Recording, Return to
▇▇▇▇▇▇▇▇ & Worcester
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Premises:
550 and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Block: 482
Lots: 72, 27
County: Westchester
Town: Harrison
LEASEHOLD MORTGAGE MODIFICATION AND EXTENSION AGREEMENT
THIS LEASEHOLD MORTGAGE MODIFICATION AND EXTENSION AGREEMENT (this
"Agreement"), dated as of September 9, 1996, between MENDIK REAL ESTATE LIMITED
PARTNERSHIP, a New York limited partnership, having an address at c/o Mendik
Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Mortgagor") and
FGH REALTY CREDIT CORP., a Delaware corporation (formerly known as
Friesch-Groningsche Hypotheekbank Realty Credit Corporation), having an address
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Mortgagee").
W I T N E S S E T H :
WHEREAS, the Mortgagor executed and delivered to the Mortgagee a Promissory
Note, dated as of September 25, 1991 in the original principal amount of
$6,500,000.00 (the "Original Note"), which Original Note evidences a loan in
the original principal amount of up to $6,500,000.00 made by the Mortgagee to
the Mortgagor pursuant to that certain Loan Agreement dated September 25, 1991
between the Borrower and the Lender (the "Original Loan Agreement");
WHEREAS, the Original Note is secured by a certain Leasehold Mortgage and
Security Agreement, dated as of September 25, 1991, from the Mortgagor in favor
of the Mortgagee and recorded on October 2, 1991 in the Office of the Clerk of
the County of Westchester, State of New York (the "Clerk's Office") in Liber
14863, Page 55 (the "Original Mortgage"), which Original Mortgage encumbers
Mortgagor's interest as tenant in the ground leases, (collectively, the "Ground
Lease") described on Schedule A attached hereto, which Ground Lease affects the
property located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ and more particularly described on Schedule B
attached hereto and made a part hereof (the "Mortgaged Property");
WHEREAS, simultaneously with the execution of this Agreement, the Mortgagor
and Mortgagee have modified and extended the terms of the Original Note and the
Original Loan Agreement pursuant to a Promissory Note and Loan Agreement
Modification and Extension Agreement (the Original Note, as so modified and
extended, is hereinafter referred to as the "New Note", and the Original Loan
Agreement, as so modified and extended, is hereinafter referred to as the "Loan
Agreement", and the New Note and the Loan Agreement together with the Original
Mortgage, as amended hereby, and any and all other documents executed in
connection herewith or therewith, the "Loan Documents"); and
WHEREAS, the Mortgagor has requested, and the Mortgagee has agreed, to
modify the terms of the Original Mortgage as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Mortgagor and the Mortgagee
hereby agree as follows:
A. DEFINED TERMS. All capitalized terms used herein, unless otherwise
defined, shall have the meaning set forth in the Original Mortgage.
B. EXTENSION OF TERM. The scheduled maturity of the Original Mortgage is
hereby extended to September 25, 1997.
C. AMENDMENT OF ORIGINAL MORTGAGE. The terms, covenants and provisions of
the Original Mortgage are hereby modified and amended to the extent set forth
below and, except as set forth below, the terms of the Original Mortgage shall
remain unchanged and in full force and effect and the Original Mortgage as so
modified and amended is hereby confirmed in all respects by the Mortgagor:
1. The Original Mortgage is hereby amended by replacing the definition of
"Note" set forth in first recital thereof appearing on page 1 of the Original
Mortgage with the definition of the New Note set forth in this Agreement.
Furthermore, any and all references to "Note" set forth in the Original
Mortgage shall mean the New Note. The Original Mortgage, as modified and
extended by this Agreement, shall secure the New Note with the same force and
effect as the Original Mortgage did, and shall be afforded the same priority as
the Original Mortgage had, with the Original Note.
2. The Original Mortgage is hereby amended by inserting the following
after the word "agreements" appearing in the fifth line of the Granting Clause
on page 2 of the Original Mortgage:
"including, without limitation, the Loan Agreement, as amended by the
Promissory Note and Loan Agreement Modification and Extension Agreement, dated
September 9, 1996 between Mortgagor and Mortgagee,"
3. The Original Mortgage is hereby amended by adding the following after
paragraph 1.04.6(a) appearing on page 12 of the Original Mortgage:
"Particular Insurance Provisions. In addition to the insurance
requirements set forth above, the Mortgagor shall comply with the requirements
set forth below. If the provisions set forth below conflict with the terms set
forth elsewhere in this Mortgage, the terms set forth below shall control.
(a) Coverage Provisions.
(i) All risk/open perils special form property insurance shall be
in force with limits of one hundred percent (100%) replacement cost. If a
coinsurance clause shall be in effect, an agreed amount endorsement shall be
required. Blanket policies shall include limits by property location. The
coverage shall insure the Mortgaged Property and all tangible personal
property.
(ii) Broad form boiler and machinery coverage, including a form
of business income coverage, shall be in force if any such items are located on
or about the Mortgaged Property.
(iii) If available, flood insurance shall be in force if the
Mortgaged Property is located in a special flood hazard area according to the
most current flood insurance rate map issued by the Federal Emergency
Management Agency. The coverage shall include the Mortgaged Property and the
tangible personal property.
(iv) A form of business income coverage shall be in force in the
amount of eighty percent (80%) of one year's business income from the Mortgaged
Property. Blanket policies shall include limits by property location.
(v) Comprehensive/general liability coverage shall be in force
with a one million dollar ($1,000,000.00) combined single limit per occurrence
with a minimum aggregate limit of two million dollars ($2,000,000.00).
Umbrella/excess liability insurance may be used to satisfy this requirement.
(vi) Liquor liability coverage shall be in force if applicable law
may impose liability on those selling, serving or giving alcoholic beverages to
others and if such beverages will be sold, served or given on the Mortgaged
Property.
(b) How Mortgagee shall be Named. On all property policies and
coverages (including coverage against loss of business income), the Mortgagee
shall be named as "first mortgagee" under a standard mortgage clause. On all
liability policies and coverages, the Mortgagee shall be named as an
"additional insured." The Mortgagee shall be referred to verbatim as follows:
"FGH Realty Credit Corp. and its successors, assigns and affiliates; as their
interests may appear; c/o AEGON USA Realty Advisors, Inc.; Mortgage Loan Dept.;
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇".
(c) Rating. The insurance carrier shall be rated A, Class XII, or
better by Best's Rating Service, without regard to its parent's or any
reinsurer's rating.
(d) Deductible. The maximum deductible on all coverages and policies
shall be twenty-five thousand dollars ($25,000.00).
(e) Notices Changes and Renewals. All policies shall require the
insurance carrier to give the Mortgagee a minimum of thirty (30) days' notice
in the event of cancellation or non-renewal. Any vacancy, change of title,
tenant occupancy or use, physical damage or contract shall be reported to the
Mortgagee immediately. An original or certified copy of each policy shall be
required upon renewal. If no such copy is available, the Mortgagee shall
accept a binder for a period not to exceed ninety (90) days. All binders,
certificates of insurance and original or certified copies of policies shall
name the Mortgagee as a named insured, or as an additional insured, shall
include the complete and accurate property address and shall bear the original
signature of the issuing insurance agent."
4. The Original Mortgage is hereby amended by deleting paragraph 5.02
in its entirety appearing on page 42 of the Original Mortgage and inserting the
following paragraph 5.02 in its place:
"5.02 Addresses for Notices. Etc.
(a) Any notice, report, demand or other instrument authorized or
required to be given or furnished shall be deemed given or furnished (i) when
addressed to the party intended to receive the same, at the address of such
party set forth below, and delivered at such address (against a signed
receipt), (ii) three days after the same is deposited in the United States
mail as first class certified mail, return receipt requested, postage paid,
(iii) when delivered by nationwide commercial courier service, one business day
after the date of delivery of such notice to the courier service (provided that
overnight delivery service is used), or (iv) when transmitted by telecopy to
the telecopier number set forth below, to the party intended to receive same,
provided that such transmission is confirmed by duplicate notice in such other
manner as permitted above, upon receipt at such telecopier number:
Mortgagee: FGH Realty Credit Corp.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Special Servicing Department
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Mortgagor: Mendik Real Estate Limited Partnership
c/o Mendik Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: Proskauer, Rose, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Any party may change the address to which any such notice,
report, demand or other instrument is to be delivered or mailed, by furnishing
written notice of such change to the other parties, but no such notice of
change shall be effective unless and until received by such other parties.
Rejection or refusal to accept, or inability to deliver because of changed
address or because no notice of changed address was given, shall be deemed to
be receipt of any such notice."
5. As used in the New Note, the Original Mortgage and the other Loan
Documents, the term "Mortgage" shall mean the Original Mortgage, as amended
hereby.
D. OTHER ASSURANCES. The Mortgagor shall promptly cause this
Agreement, and such other agreements as the Mortgagee shall reasonably require,
to be filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully
to protect the lien of the Original Mortgage, as amended hereby, upon, and the
interest of the Mortgagee in, the Mortgaged Property. The Mortgagor will pay
all filing, registration and recording fees, and all expenses incident to the
preparation, execution and acknowledgment of this Agreement, and all Federal,
state, county and municipal taxes, duties, imposts, assessments and charges
arising out of or in connection with the filing, registration, recording,
execution and delivery of this Agreement and shall hold harmless and indemnify
the Mortgagee against any liability incurred by reason of the imposition of any
tax on the issuance, making, filing, registration, recording or enforcement of
this Agreement.
E. CHANGES ONLY IN WRITING. The Mortgagor acknowledges that this
Agreement and all instruments referred to herein can be extended, modified or
amended only in a writing executed by the Mortgagee and the Mortgagor and that
none of the rights or benefits of the Mortgagee can be waived permanently
except in a written document executed by the Mortgagee. The Mortgagor further
acknowledges the Mortgagor's understanding that no officer or administrator of
the Mortgagee has the power or the authority from the Mortgagee to make an oral
extension or modification or amendment of any such instrument or agreement on
behalf of the Mortgagee.
F. BINDING NATURE. This Agreement shall be binding upon and inure to
the benefit of the Mortgagor and the Mortgagee and their respective successors
and assigns.
G. DUPLICATE ORIGINALS AND COUNTERPARTS. This Agreement may be executed
in any number of duplicate originals and each such duplicate original shall be
deemed to constitute but one and the same instrument. This Agreement may be
executed in one or more counterparts each of which shall be an original and all
of which shall constitute but one instrument.
H. PARTIAL INVALIDITY. If any term, covenant or condition of this
Agreement shall be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be construed without such provision.
I. WAIVER OF JURY TRIAL. EACH OF THE MORTGAGOR AND THE MORTGAGEE HEREBY
WAIVES ANY RIGHT WHICH IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY
LITIGATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE ORIGINAL
NOTE, THE NEW NOTE, THE ORIGINAL MORTGAGE, AS AMENDED HEREBY, AND THE OTHER
LOAN DOCUMENTS.
J. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement the
day and year first above written.
MORTGAGEE:
FGH REALTY CREDIT CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
MORTGAGOR:
MENDIK REAL ESTATE LIMITED PARTNERSHIP,
a New York limited partnership
By: Mendik Corporation,
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
By: NY Real Estate Services 1, Inc.
(f/k/a ▇▇▇▇▇▇ Real Estate Services XV, Inc.),
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19th day of September, 1996, before me personally came ▇▇▇▇▇ ▇.
▇▇▇▇, to me known, who, being duly sworn, did depose and say that she resides
at c/o ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, that she is a Vice President of
FGH REALTY CREDIT CORP., a Delaware corporation, the corporation described in
and which executed the foregoing instrument; and that she signed her name
thereto by authority of the board of directors of said corporation.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public, State of New York
No. 01MU5050744
Qualified in Bronx County
Commission Expires October 16, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On this 9th day of September, 1996, before me personally came ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, to me known to be the individual who executed the foregoing
instrument and, who, being duly sworn by me, did depose and say that he is the
president of MENDIK CORPORATION, which is general partner of MENDIK REAL ESTATE
LIMITED PARTNERSHIP, a New York general partnership, and that he executed the
foregoing instrument in the partnership name of MENDIK REAL ESTATE LIMITED
PARTNERSHIP, and that he had authority to sign the same, and acknowledged that
he executed the same as the act and deed of said partnership.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01MA4987374
Qualified in Bronx County
Commission Expires October 15, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On this 9th day of September, 1996, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, to me known to be the individual who executed the foregoing instrument
and, who, being duly sworn by me, did depose and say that he is the president
of NY REAL ESTATE SERVICES 1, INC.(f/k/a ▇▇▇▇▇▇ Real Estate Services XV, Inc.),
which is general partner of MENDIK REAL ESTATE LIMITED PARTNERSHIP, a New York
general partnership, and that he executed the foregoing instrument in the
partnership name of MENDIK REAL ESTATE LIMITED PARTNERSHIP, and that he had
authority to sign the same, and acknowledged that he executed the same as the
act and deed of said partnership.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in New York City
Commission Expires July 6, 1997
SCHEDULE A
[GROUND LEASE]
Lease dated September 30, 1977 made between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, S. ▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, as trustees under the Last Will and Testament of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as lessor and the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation, as
lessee, a memorandum of which lease, dated September 30, 1977 was recorded on
October 13, 1977 in Liber 7425, Cp. 760, as assigned by Assignment and
Assumption of Lease made from 550/600 Mamaroneck Company, dated September 4,
1986 and recorded October 9, 1986 in Liber 8583 Cp. 7.
Lease dated September 30, 1977 made between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, S. ▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, as trustees under the Last Will and Testament of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as lessor and the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation, as
lessee, a memorandum of which lease, dated September 30, 1977 was recorded on
October 13, 1977 in Liber 7425, Cp. 754, as assigned by Assignment and
Assumption of Lease made from 550/600 Mamaroneck Company, dated September 4,
1986 and recorded October 9, 1986 in Liber 8583 Cp. 15.
SCHEDULE B
LEGAL DESCRIPTION
PARCEL I
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Town of Harrison, County of Westchester and State of New York, being more
particularly bounded and described as follows:
BEGINNING at a point formed by the intersection of the southerly side of Union
Avenue with the easterly side of Mamaroneck Avenue;
RUNNING THENCE along the southerly side of Union Avenue the following two (2)
courses and distances:
1. South 86 degrees 51 minutes 45 seconds East, 206.69 feet
2. Southerly on a curve to the right having a radius of 575
feet a distance of 466.46 feet to a point;
THENCE South 3 degrees 08 minutes 15 seconds West, 345.05 feet to a point;
THENCE North 86 degrees 51 minutes 45 seconds West, 623.67 feet to the easterly
side of Mamaroneck Avenue;
THENCE along the said easterly side of Mamaroneck Avenue North 3 degrees 08
minutes 15 seconds East, 524.14 feet to the point or place of BEGINNING.
PARCEL II
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Town of Harrison, County of Westchester and State of New York being more
particularly bounded and described as follows:
BEGINNING at a point on the easterly side of Mamaroneck Avenue distant 524.14
feet southerly as measured along the same from its intersection with the
southerly side of Union Avenue;
RUNNING THENCE along the said easterly side of Mamaroneck Avenue the following
two courses and distances:
1. South 3 degrees 08 minutes 15 seconds West, 231.12 feet
to a point;
2 South 3 degrees 08 minutes 20 seconds West, 374.85 feet
to a point;
THENCE South 61 degrees 59 minutes 42 seconds East, 74.98 feet to a point;
THENCE South 86 degrees 51 minutes 45 seconds East, 291.97 feet to a point;
THENCE North 48 degrees 08 minutes 15 seconds East, 372.87 feet to a point;
THENCE North 3 degrees 08 minutes 15 seconds East, 373.84 feet to a point;
THENCE North 86 degrees 51 minutes 45 seconds West, 623.67 feet to point or
place of BEGINNING.
