NOTE MODIFICATION AGREEMENT
THIS AGREEMENT dated as of December 1, 2003 between PORT BAY
ASSOCIATES, LLC ("Maker"), having an office c/o Acadia Realty Trust, 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxx Xxxx 00000, and FLEET NATIONAL
BANK ("Payee"), having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
W I T N E S S E T H:
WHEREAS, Payee is the owner and holder of the Amended and Restated
Mortgage Note (the "Note") from Maker dated July 19, 2000 in the original
principal amount of $10,000,000; and
WHEREAS, Maker and Payee desire to extend and modify the Note;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, Maker and Payee hereby agree as follows (capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Note):
1. The Maturity Date of the Note is hereby extended to August 1, 2008.
2. References in the Note to Extended Term shall mean two (2) one-year
extensions, the first of which, if exercised in accordance with the Note, will
end on August 1, 2009 (the "First Extension") and the second of which, if
exercised in accordance with the Note, will end on August 1, 2010 (the "Second
Extension").
3. References in the Note to "Extension Fee" shall mean 0.125% of the
principal balance of the Note at the Maturity Date with respect to the First
Extension and 0.125% of the principal balance of the Note on the Extended
Maturity Date with respect to the Second Extension.
4. Subparagraph 3(b)(iii) is modified by reducing the "floor rate" to
8.0% from 8.50% and in addition to the conditions in 3(b) of the Note which must
be satisfied for the First Extension and the Second Extension, the Second
Extension shall be conditioned upon the renewal of the lease with CSC Soundview
Cinema or a substitute lease with a tenant approved by Payee, in either case, on
terms and conditions reasonably acceptable to Payee.
5. The definition of "LIBOR Option" is amended by the addition of the
following at the end of the first sentence thereof:
"provided, however, that during an applicable Interest Period
where the Debt Service Coverage Ratio is 1.50 to 1 or greater
and the outstanding principal balance of the Loan is not more
than 55% of the appraised value of the Mortgaged Property,
LIBOR Option shall mean a rate per annum equal to one hundred
forty basis points (1.40%) plus the LIBOR Rate."
6. The definition of "Change in Control" is amended by deleting the
words "of Xxxx Xxxxxxx as Chief Executive Officer of Acadia and of".
7. The first two sentences of subparagraph 2(a) of the Note are deleted
and the following is substituted therefor:
"(a) The Principal Amount of this Note shall be payable in
accordance with the following provisions: Commencing on January 1, 2004
and on the first day of each month thereafter, Maker will pay, on
account of the Principal Amount, the fixed sum of $10,350.50 (the
"Fixed Principal Payment") until the making of an Additional Advance.
Upon the making of an Additional Advance, the Fixed Principal Payment
shall be recalculated based upon the new Principal Amount, including
the Additional Advance, a twenty-five year loan maturity, less the
number of months which have elapsed since December 1, 2003 and an
assumed interest rate of 8% per annum and such recalculated Fixed
Principal Payment shall be applicable to the payment due on the first
day of the month following the making of the Additional Advance and
each month thereafter unless and until another Additional Advance is
made at which time the Fixed Principal Payment shall be further revised
in accordance herewith."
2
8. Subparagraph 5(f) of the Note is modified by deleting references to
the capped 18 month funding period for the Earn-Out and subparagraph 5(e) of the
Note is modified by reducing the "floor rate" to 8.0% from 8.50%.
9. Paragraph 9 of the Note is hereby modified as follows:
(i) the "Debt Service Coverage Ratio" referred to in (b) shall
be 1.30 to 1 and the "floor rate" is reduced to 8.0% from 8.50%;
(ii) the "Net Worth" of Acadia in (c) shall be $100,000,000;
and
(iii) the minimum liquidity required in (d) shall be
$7,000,000.
10. Except as modified hereby, the Note remains unmodified and in full
force and effect and Payee hereby covenants, represents and warrants that the
principal amount of $8,609,864.83 is outstanding as of the date hereof with
$1,000,000 remaining to be advanced under the Note and there exist no causes of
action, offsets, counterclaims or defenses with respect to Payee's obligation
under the Note, as modified hereby.
[Remainder of page intentionally left blank.]
3
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
PORT BAY ASSOCIATES, LLC
By: Acadia Realty Limited Partnership,
its managing member
By: Acadia Realty Trust, its general partner
By
---------------------------------------
Xxxxxx Xxxxxxx
Senior Vice President
FLEET NATIONAL BANK
By
---------------------------------------
Xxxxxx X. Xxxxx
Vice President
4
