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Exhibit 10.1
▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P.
and
NEW GREEN 1140 REALTY LLC
(Borrower)
and
▇▇ ▇▇▇▇▇ REALTY CORP. (REIT)
and
▇▇▇▇▇▇ BROTHERS HOLDINGS INC., D/B/A
▇▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
(Lender)
__________________________
LOAN AGREEMENT
__________________________
Dated: As of August 20, 1997
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THIS LOAN AGREEMENT made as of the 20/th/ day of August, 1997,
between ▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P., a Delaware limited partnership,
having an office at ▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as the "Partnership"), NEW GREEN 1140 REALTY LLC, a
New York limited liability company, having an office at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("LLC"; LLC, together the Partnership, the "Borrower"),
▇.▇. ▇▇▇▇▇ REALTY CORP., a Maryland corporation having an office at ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "REIT") and ▇▇▇▇▇▇ BROTHERS HOLDINGS
INC. D/B/A LEHMAN CAPITAL, A DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC., a
Delaware corporation, having an office at Three World Financial Center, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Lender");
RECITALS:
1. Partnership is the fee owner of the premises described in
Exhibit A-1 attached hereto (the "Fee Premises");
2. LLC is the owner of a leasehold estate in the premises
described in Exhibit A-2 attached hereto (the "Leasehold Premises"; together
with the Fee Premises, the "Properties");
3. At the request of Borrower, in connection with the
initial public offering of Borrower and the REIT, Lender has purchased those
certain notes (collectively, as may be consolidated, amended, increased,
modified or supplemented, the "Notes") and mortgages (collectively,
as may be consolidated, amended, increased, modified or supplemented, the
"Mortgages") and the related loan documents more particularly described
on Exhibit B attached hereto (the Notes and the Mortgages, together with
the related loan documents, the "Loan Documents") which encumber the
Properties. The Loan
Documents have been assigned to Lender and Lender is now the owner and holder
of the Loan Documents;
4. The assignments of the Loan Documents will be recorded in the
Office of the City Register, New York County, New York;
5. There is now owing on the Notes and Mortgages the aggregate
unpaid principal sum of $49,150,000.00 with interest thereon as more
particularly set forth as Exhibit C attached hereto; and
6. Borrower and Lender have agreed to modify the time and the
manner of payment and the terms and the provisions of the Notes.
In consideration of the foregoing and the payment of $49,150,000.00
by Lender (the "Loan Amount") to the prior holders of the loans evidenced and
secured by the Loan Documents (the "Loans") to purchase the Loans, and other
good of valuable consideration, the receipt of which is hereby acknowledged
the parties hereto agree as follows:
A. DEFINED TERMS. As used in this Agreement, the
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following terms shall have the following meanings:
"Collateral Account": shall have the meaning set forth
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in the Collateral Account Agreement (hereinafter defined).
"Collateral Account Agreement": shall mean the
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Collateral Account Agreement dated the date hereof executed by the
Borrower in favor of the Lender.
"Collateral": shall mean the Collateral Account and
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all funds, securities, monies and credit balances from time to time
held in the Collateral Account and any other property or assets of the
Borrower or any other Person (hereinafter defined) given as security for the
Loans, including without limitation, the Properties.
"Debt": shall mean: (i) the whole of the principal
----
sum of the Notes and Mortgages, (ii) interest, default interest, late
charges and other sums, as provided in the Notes, the Mortgages or the other
Loan Documents as modified by this Agreement and the Collateral Account
Agreement, (iii) all other monies agreed or provided to be paid by
Borrower in the Notes, the Mortgagor or the other Loan Documents and this
Agreement and the Collateral Account Agreement, (iv) all sums advanced
pursuant to the Mortgages to protect and preserve the Properties and the
lien and the security interests created thereby, and (v) all sums advanced
and costs and expenses incurred by Lender in connection with the Debt or
any part thereof, any renewal, extension, or change of or substitution for
the Debt or any part thereof, or the acquisition or perfection of the
security therefor, whether made or incurred at the request of Borrower or
Lender (all the sums referred to in (i) through (v) above shall collectively
be referred to as the "Debt").
"Default Rate": shall mean a rate per annum equal to
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the lesser of (i) the Applicable Interest Rate (hereinafter defined) plus
4% or (ii) the maximum rate permitted by law.
"ERISA": shall mean the Employee Retirement Income
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Security Act of 1974, as amended from time to time.
"ERISA Group": shall mean the Borrower and all members
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of a controlled group of corporations and all trades or businesses (whether
or not incorporated) under common control which, together with each such
Borrower, are treated as a single employer under Section 414 of the Code
or Section 4001 of ERISA.
"Material Adverse Effect": shall mean any (i) material
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adverse effect whatsoever upon the validity or enforceability of this
Agreement or any of the Loan Documents or any of the transactions
contemplated hereby or thereby, (ii) material adverse effect upon the
properties, business, prospects or condition (financial or otherwise) of the
Borrower or (iii) material adverse effect upon the ability of Borrower or any
other Person to fulfill any of their obligations under this Agreement or any
of the Loan Documents.
"Multi-Employer Plan": shall mean a plan (hereinafter
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defined) which is a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
"PBGC": shall mean the Pension Benefit Guaranty
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Corporation established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Liens": shall mean only those liens,
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encumbrances and charges that are shown as exceptions in the title insurance
policies insuring the liens of the Mortgages and which have been approved by
Lender.
"Person": shall mean and include any individual,
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partnership, joint venture, firm, corporation, association, company, trust
or other enterprise or any government or political subdivision or
agency, department or instrumentality thereof.
"Plan": shall mean a plan which is not a multi-employer
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plan as defined in Section 4001(a)(3) of ERISA.
B. MODIFICATION OF THE NOTES, MORTGAGES AND LOAN
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DOCUMENTS. The terms, covenants and provisions of the Notes,
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Mortgages and other Loan Documents are hereby modified and amended so that
henceforth the terms, covenants and provisions of this Agreement shall
supersede the terms, covenants and provisions of the Notes, Mortgages
and other Loan Documents. Except as expressly modified by this
Agreement, the Notes, Mortgages and other Loan Documents shall continue
in full force and effect. In the event of any ambiguity between the
terms, events and provisions of this Agreement and those of the Notes,
Mortgages and other Loan Documents, the terms, covenants and provisions of
this Agreement shall control. The Notes, Mortgages and other Loan
Documents, as herein modified and amended, are hereby ratified and confirmed
in all respects by Borrower.
C. PAYMENT TERMS. Notwithstanding anything to the
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contrary in the Notes, the Mortgages, or the other Loan Documents:
(i) The Borrower and the REIT hereby assume, jointly
and severally, subject to Section G hereof, the payment and performance of
all obligations under the Notes, the Mortgages and the other Loan Documents,
and hereby promise to pay the Debt to Lender as follows:
(a) The Borrower and REIT agree to pay interest on the unpaid
principal amount of the Loans from time to time outstanding from and
including the date hereof to and including the date on which the Loans are
paid in full at a rate per annum equal to the per annum rate of interest
payable on the United States Treasury securities held from time to time in
the Collateral Account (the "Applicable Interest Rate"). Interest on the
Loans shall be payable, in arrears, on September 20, 1997 (the "Maturity
Date").
(b) The Borrower and REIT agree to pay to Lender the
outstanding principal amount of the Loans together with all accrued and
unpaid interest thereon and all other sums due and payable on the Notes, the
Mortgages, the other Loan Documents, this Agreement and the Collateral
Account Agreement on or prior to the Maturity Date.
(ii) Interest on the Loans shall be calculated on the basis of a
360-day year and the actual number of days elapsed. In computing the amount
of interest payable in respect of any period, the first day and the last day
of such period shall be included. Each determination of an interest rate by
the Lender shall be conclusive and binding on the Borrower absent manifest
error.
D. PREPAYMENT.
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Borrower may prepay the Loans in whole or in part provided that
Borrower pays to Lender, together with such prepayment, the interest accrued
and unpaid on the amount of principal being prepaid and an amount equal to
any loss or expense incurred by Lender in connection with the liquidation of
the Collateral, including without limitation any decline in the market value
of such Collateral. Any prepayment shall be applied pro-rata to the
outstanding principal balance under each of the Notes or otherwise as Lender
in its sole discretion shall elect.
E. NO SALE/ENCUMBRANCE. Borrower agrees that
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Borrower shall not, without the prior written consent of Lender, sell,
convey, mortgage, grant, bargain, encumber, pledge, assign, or otherwise
transfer any of the Properties or any part thereof or permit any of the
Properties or any part thereof to be sold, conveyed, mortgaged, granted,
bargained, encumbered, pledged, assigned, or otherwise transferred. A
sale, conveyance, mortgage, grant, bargain, encumbrance, pledge,
assignment, or transfer within the meaning of this Section E shall be
deemed to include, but not limited to, (i) an installment sales agreement
wherein Borrower agrees to sell the Property or any part thereof for a price
to be paid in installments; (ii) an agreement by Borrower leasing all or a
substantial part of any Property for other than actual occupancy by a space
tenant thereunder or a sale, assignment or other transfer of, or the grant
of a security interest in, Borrower's right, title and interest in and to
any leases or any rents; (iii) if Borrower or any general partner or
limited partner of Borrower is a corporation, the voluntary or
involuntary sale, conveyance, transfer or pledge of such corporation's
stock or the stock of any corporation directly or indirectly controlling
such corporation by operation of law or otherwise (other than transfers
of shares in the REIT), or the creation or issuance of new stock by which an
aggregate of more than 10% of such corporation's stock shall be vested in
a party or parties who are not now stockholders (other than stock of the
REIT); (iv) if Borrower or any general partner or limited partner of
Borrower is a limited or general partnership or joint venture, the change,
removal or resignation of a general partner, managing partner or limited
partner, or the transfer or pledge of the partnership interest of any general
partner, managing partner or limited partner or any profits or proceeds
relating to such partnership interest whether in one transfer or a series of
transfers (other than, in each case, limited partnership interests in the
Partnership) and (v) if Borrower, or any general or limited partner or member
of Borrower, is a limited liability company, the change, removal or
resignation of a managing member or the transfer of the membership interest
of any managing member of any profits or proceeds relating to such membership
interest or the voluntary or involuntary sale, conveyance, transfe or pledge
of membership interests (or the membership interests of any limited liability
company directly or indirectly controlling such limited liability company by
operation of law or otherwise) or the creation or issuance of new membership
interests, by which an aggregate of more than 10% of such membership
interests are held by parties who are not currently members. Notwithstanding
the foregoing, transfer by devise or descent or by operation of law upon the
death of a partner or stockholder of Borrower or any general partner thereof
shall not be deemed to be a sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer within the meaning of this
Section E.
F. INSURANCE AND CONDEMNATION.
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(i) Insurance. Notwithstanding anything to the
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contrary in the Notes, the Mortgages or the other Loan Documents:
(a) Partnership or LLC, as the case may be, will keep the
respective Properties insured against loss or damage by fire, flood and such
other hazards, risks and matters, including without limitation, business
interruption, rental loss, public liability, and boiler damage and liability,
as Lender may from time to time require in amounts required by Lender, and
shall pay the premiums for such insurance (the "Insurance Premiums") as the
same become due and payable. All policies of insurance (the "Policies")
shall be issued by insurers acceptable to Lender and shall contain the
standard New York mortgagee non-contribution clause naming Lender as the
person to which all payments made by such insurance company shall be paid.
Partnership and LLC will assign and deliver the respective Policies to
Lender. Not later than fifteen (15) days prior to the expiration date of
each of the Policies, Partnership and LLC will deliver evidence satisfactory
to Lender of the renewal of each of the Policies.
(b) If any Property shall be damaged or destroyed, in whole
or in part, by fire or other casualty, Borrower shall give prompt notice
thereof to Lender. Sums paid to Lender by any insurer may be retained and
applied by Lender, after deduction of Lender's reasonable costs and expenses
of collection, toward payment of the Debt in such priority and proportions as
Lender in its discretion shall deem proper or, at the discretion of Lender,
either in whole or in part, to Borrower for such purposes as Lender shall
designate. In the event of any conflict, inconsistency or ambiguity between
the provisions of this paragraph F(i)(b) and the provisions of subsection 4
of Section 254 of the Real Property Law of New York covering the insurance of
buildings against loss by fire, the provisions of this paragraph F shall
control.
(ii) Condemnation. Borrower shall promptly give Lender
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notice of the actual or threatened commencement of any condemnation or
eminent domain proceeding and shall deliver to Lender copies of any and all
papers served in connection with such proceedings. Notwithstanding any
taking by any public or quasi-public authority through eminent domain or
otherwise (including but not limited to any transfer made in lieu of or
in anticipation of the exercise of such taking), Borrower shall continue to
pay the Debt at the time and in the manner provided for this Agreement
and the Debt shall not be reduced until any award or payment therefor shall
have been actually received and applied by Lender, after the deduction of
expenses of collection, to the reduction or discharge of the Debt. Lender
shall not be limited to the interest paid on the award by the condemning
authority but shall be entitled to receive out of the award interest at the
rate or rates provided herein. Lender may apply any such award or payment to
the reduction or discharge of the Debt whether or not then due and
payable. If any Property is sold, through foreclosure or otherwise,
prior to the receipt by Lender of such award or payment, Lender shall
have the right, whether or not a deficiency judgment on the respective
Note shall have been sought, recovered or denied, to receive said award or
payment, or a portion thereof sufficient to pay the Debt.
G. RECOURSE.
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The Loans and each obligation of Borrower contained in the Notes,
the Mortgages and the other Loan Documents shall be fully recourse to
Borrower; however, no personal liability or personal deficiency judgment
shall be asserted or enforced against the REIT except as a result and to the
extent of (i) fraud or intentional misrepresentation by Borrower or the REIT;
(ii) Borrower's or the REIT's misapplication or misappropriation of rent or
other income derived from the Properties; (iii) the misapplication or the
misappropriation of insurance proceeds or condemnation awards; or (iv) the
occurrence of an Event of Default under Section J(g) or (h) of this
Agreement. Notwithstanding the foregoing, the agreement of Lender to not
assert or enforce personal liability or a personal deficiency judgment
against the REIT SHALL BECOME NULL AND VOID and shall be of no further force
and effect in the event that there is any breach of Section E or of Sections
J(j) or (k) of this Agreement.
H. COMMITMENT FEE. Simultaneously with the
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execution and delivery of this Agreement, the Borrower and the REIT shall
pay to Lender a commitment fee equal to 0.25% of the Loan Amount.
I. SERVICING FEE. Simultaneously with the execution
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and delivery of this Agreement, Borrower and the REIT shall pay to Lender
a servicing fee in connection with the administration of the
Collateral Account equal to 0.02% of the Loan Amount.
J. EVENTS OF DEFAULT. Each of the following
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events shall constitute an "Event of Default":
(a) Borrower shall fail to pay (i) any principal of or interest on
the Loans when due (whether at stated maturity or by prepayment or otherwise)
in accordance with the terms hereof, (ii) any other amount payable under the
Collateral Agreement when due or (iii) any other amount payable hereunder or
under any Loan Document within five (5) Business Days of when such payment is
due in accordance with the terms hereof or thereof;
(b) Any representation or warranty made or deemed made by the
Borrower in this Agreement, the Notes, the Mortgages, the other Loan
Documents or the Collateral Agreement or in any certificate, document or
financial or other statement furnished at any time under or in connection
with this Agreement, shall prove to have been incorrect on or as of the date
made or deemed made or shall be breached in any respect, and such
incorrectness or breach has a Material Adverse Effect;
(c) The Borrower violates or does not comply with any other
provisions of Section E of this Agreement;
(d) If any default occurs under the Notes or Mortgages or
other Loan Documents (as the same may have been modified by this Agreement)
beyond the expiration of any applicable notice or cure period;
(e) Borrower or the REIT shall (i) apply for or consent to the
appointment of a receiver, trustee, custodian, intervenor or liquidator of
itself or of all or a substantial part of such Person's assets, (ii) file a
voluntary petition in bankruptcy, admit in writing that such Person is unable
to pay such Person's debts as they become due, or generally not pay such
Person's debts as they become due, (iii) make a general assignment for the
benefit of creditors, (iv) file a petition or answer seeking reorganization
or an arrangement with creditors or to take advantage of any bankruptcy or
insolvency laws, (v) file an answer admitting the material allegations of, or
consent to, or default in answering, a petition filed against such Person in
any bankruptcy, reorganization or insolvency proceeding, or (vi) take
corporate action for the purpose of effecting any of the foregoing;
(f) An involuntary petition or complaint shall be filed against
Borrower or the REIT seeking bankruptcy relief or reorganization or the
appointment of a receiver, custodian, trustee, intervenor or liquidator of
such Person, or all or substantially all of such Person's assets and such
petition or complaint shall not have been dismissed within sixty (60) days of
the filing thereof, or an order, order for relief, judgment or decree is
entered by any court of competent jurisdiction or other competent authority
approving or ordering any of the foregoing;
(g) Both the following events shall occur: (i) either (x)
proceedings shall have been instituted to terminate, or notice of termination
shall have been filed with respect to, any Plan by the Borrower, the PBGC or
any representative of any thereof, or any such Plan shall be tehe imposition
of a lien under Section 4069 of ERISA, shall have occurred with respect to
any Plan and be continuing for a period of sixty (60) days; and (ii) the sum
of the estimated liability to the PBGC under Section 4062 of ERISA and the
currently payable obligations of the Borrower to fund liabilities (in excess
of amounts required to be paid to satisfy the minimum funding standard of
Section 412 of the Code) under the Plan or Plans subject to such event shall
exceed ten percent (10%) of the Borrower's net worth at such time;
(h) Any or all of the following events shall occur with respect to
any Multi-employer Plan to which Borrower contributes or has contributed on
behalf of its employees: (i) the Borrower incurs a withdrawal liability
under Section 4201 of ERISA; or (ii) any such plan is "in reorganization" as
that term is defined in Section 2441 of ERISA; or (iii) any such Plan is
terminated under Section 4041A of ERISA, and the Lender determines in good
faith that the aggregate liability likely to be incurred by the Borrower
thereof, as a result of all or any of the events specified in subparagraphs
(i), (ii) and (iii) above occurring, shall have a Material Adverse Effect; or
(i) Lender does not have or ceases to have a valid and perfected
first priority security interest in the Collateral, or this Agreement the
Notes, the Mortgages, the other Loan Documents or the Collateral Account
Agreement shall cease for any reason to be in full force and effect in
accordance with their terms or any Person obligated thereunder shall so
assert in writing or the Mortgages shall cease to be effective to grant the
liens purported to be granted thereby in favor of the Lender or such liens
shall cease to be enforceable or superior to and prior to the rights of any
other Persons (subject to Permitted Liens); or
(j) The REIT shall cease to own, either directly or indirectly,
100% of the issued and outstanding membership interests in the LLC;
(k) The REIT shall cease to be the sole general partner of the
Partnership;
(l) Any "Event of Default" (as defined in the Collateral Account
Agreement) shall occur under the Collateral Account Agreement; and
(m) If for more than ten (10) days after notice from
Lender, Borrower shall continue to be in default under any other term,
covenant or condition of this Agreement.
K. REMEDIES. If any Event of Default shall occur and
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be continuing, then, and in any such event, (a) if such event is an Event
of Default specified in Section J(f) or (g) of this Agreement, the Loans
(with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes, the Mortgages, the other Loan Documents or the
Collateral Account Agreement shall immediately become due and payable, and
(b) if such event is any other Event of Default, the Lender may, by notice
of default to the Borrower, declare the Loans (with accrued interest thereon)
and all other amounts owing under this Agreement and the Notes, the
Mortgages, the other Loan Documents or the Collateral Account Agreement
to be due and payable forthwith, whereupon the same shall the immediately
become due and payable, (c) Borrower will pay, from the date of that Event
of Default, interest on the unpaid principal balance of the Notes at the
Default Rate and (d) Lender shall have the right to exercise any and all
rights and remedies available at law and in equity. Except as expressly
provided above in this Section K, presentment, demand, protest and all
other notices of any kind are hereby expressly waived.
Lender, upon the occurrence of an Event of Default or in any action
to foreclose the Mortgages or upon the actual or threatened waste to any part
of any Property, shall be entitled to the appointment of a receiver without
notice and without regard to the value of such Property as security for the
Debt, or the solvency or insolvency of any person liable for the payment of
the Debt.
L. NO WAIVER; CUMULATIVE REMEDIES. No failure to
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exercise and no delay in exercising, on the part of the Lender, of any
right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided at law, in equity or otherwise.
M. PAYMENT OF LENDER'S EXPENSES, INDEMNITY, ETC.
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Borrower shall:
(a) whether or not the transactions hereby contemplated are
consummated, pay all out-of-pocket costs and expenses of the Lender in
connection with the purchase of the Loans pursuant to this Agreement in
accordance with the terms of that certain commitment letter dated August 20,
1997 between Borrower and the REIT;
(b) pay, and hold the Lender harmless from and against, any and
all present and future stamp, excise and other similar taxes and hold the
Lender harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable
to the Lender) to pay such taxes; and
(c) indemnify the Lender, its officers, directors, employees,
representatives and agents and any persons or entities owned or controlled
by, owning or controlling, or under common control or affiliated with Lender
(each an "Indemnitee")
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from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages, expenses, obligations, penalties, he actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitee in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto) that may
at any time (including, without limitation, at any time following the payment
of the Debt) be imposed on, asserted against or incurred by any Indemnitee as
a result of, or arising out of, or in any way related to or by reason of, (i)
any of the transactions contemplated under, or the execution, delivery or
performance of, this Agreement, the Notes, the Mortgages, the other Loan
Documents and the Collateral Account Agreement, (ii) the breach of any of the
Borrower's, or the REIT's representations and warranties or of any of their
respective agreements or obligations hereunder or under, the Notes, the
Mortgages, the other Loan Documents and the Collateral Account Ading, without
limitation, foreclosure) under this Agreement, the Notes, the Mortgages, the
other Loan Documents and the Collateral Account Agreement, (but excluding, as
to any Indemnitee, any such losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements to
the extent incurred solely by reason of the gross negligence or willful
misconduct of such Indemnitee as finally determined by a court of competent
jurisdiction). Borrower's obligations under this subsection shall survive
the termination of this Agreement and the payment of the Debt.
N. NOTICES.
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All notices or other written communications hereunder shall be
deemed to have been properly given (i) upon delivery, if delivered in person
or by facsimile transmission with receipt acknowledged by the recipient
thereof, (ii) one (1) Business Day (defined below) after having been
deposited for overnight delivery with any reputable overnight courier
service, or (iii) five (5) Business Days after having been deposited in any
post office or mail depository regularly maintained by the U.S. Postal
Service and sent by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to Borrower: ▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P.
▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Greenberg, Traurig, Hoffman, Lipoff,
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Lender: ▇▇▇▇▇▇ Brothers Holdings Inc.
d/b/a Lehman Capital, a division of
▇▇▇▇▇▇ Brothers Holdings Inc.
Three World Financial Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇ Philips
Suite 2300 Marquis Two Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or addressed as such party may from time to time designate by written notice
to the other parties.
Either party by notice to the other may designate additional
or different addresses for subsequent notices or communications.
For purposes of this Subsection, "Business Day" shall mean a day on
which commercial banks are not authorized or required by law to close in New
York, New York.
O. THIS AGREEMENT.
--------------
(i) Borrower will pay all Federal, state, county and
municipal taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of this Agreement and Borrower
shall hold harmless and indemnify Lender against any liability incurred by
reason of the imposition of any tax on the issuance, making, execution or
delivery of this Agreement, the Collateral Account Agreement or the
Mortgages.
(ii) Borrower shall, and shall cause each of its affiliates
to, make, execute, or endorse, and acknowledge and deliver or file or cause
the same to be done, all such notices, certificates and additional
agreements, undertakings, conveyances, transfers, assignments or other
assurances, and take any and all such other action, as Lender may, from time
to time, deem reasonably necessary or proper in connection with this
Agreement, any of the Loan Documents or the Collateral Account Agreement or
the obligations of Borrower or its affiliates hereunder or thereunder.
(iii) Borrower represents, warrants and covenants that
there are no offsets, counterclaims or defenses against the Debt, this
Agreement, the Notes, the Mortgages or the other Loan Documents, or the
Collateral Account Agreement that Borrower (and the undersigned
representative of Borrower, if any) has full power, authority and legal right
to execute this Agreement and to keep and observe all of the terms of this
Agreement on Borrower's part to be observed or performed, and that this
Agreement, the Notes, the Mortgages, the other Loan Documents, and the
Collateral Account Agreement constitute valid and binding obligations of
Borrower.
(iv) Borrower represents and warrants that there is now due
and owing on the Notes, Mortgages and the other Loan Documents the aggregate
unpaid principal sum of $49,150,000.00 or more particularly set forth in
Exhibit C attached hereto;
(v) Borrower hereby waives, to the extent permitted by law,
the benefit of all appraisement, valuation, stay, extension, reinstatement
and redemption laws now or hereafter in force and all rights of marshalling
in the event of any sale hereunder of one or more of the Properties or the
Collateral or any part thereof or any interest therein. Further, Borrower
hereby expressly waives any and all rights of redemption from sale under any
order or decree of foreclosure of any Mortgage on behalf of Borrower, and on
behalf of each and every person acquiring any interest in or title to any
Property subsequent to the date of the related Mortgage and on behalf of all
persons to the extent permitted by applicable law.
(vi) This Agreement, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally
or by any act or failure to act on the part of Borrower or Lender, but only
by an agreement in writing signed by the party against whom the enforcement
of any modification, amendment, waiver, extension, change, discharge or
termination is sought.
(vii) This Agreement shall be binding upon and inure to the
benefit of Borrower and Lender and their respective successors and
assigns.
(viii) This Agreement may be executed in any number of
duplicate originals and each duplicate original shall be deemed to be an
original. This Agreement may be executed in several counterparts, each of
which counterparts shall be deemed an original instrument and all of which
together shall constitute a single agreement. The failure of any party
hereto to execute this Agreement, or any counterpart hereof, shall not
relieve the other signatories from their obligations hereunder.
(ix) 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.
(x) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York and the applicable laws of
the United States of America.
(xi) Except as otherwise provided to the contrary herein, all
defined terms shall have the meaning given to such terms in the above body of
this Agreement and all references to the "Notes," the "Mortgages," or any
other "Loan Document" shall refer to the Notes, Mortgages and other Loan
Documents as modified and amended pursuant to the provisions of this
Agreement.
(xii) Except as expressly modified pursuant to this
Agreement, all of the terms, covenants and provisions of the Notes, the
Mortgages and the other Loan Documents shall continue in full force and
effect. In the event of any conflict or ambiguity between the terms,
covenants and provisions of this Agreement and those of the Notes, the
Mortgages and the other Loan Document, the terms, covenants and provisions of
this Agreement shall control.
P. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS
--------------------
AGREEMENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY
AS TO ANY ISSUE RELATING TO THIS AGREEMENT, THE NOTES, THE MORTGAGES, THE
OTHER LOAN DOCUMENTS AND THE COLLATERAL ACCOUNT AGREEMENT.
(NO FURTHER TEXT ON THIS PAGE)
IN WITNESS WHEREOF, THIS AGREEMENT has been executed by Borrower on
Lender the day and year first above written.
▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: ▇▇ ▇▇▇▇▇ REALTY CORP., a
Maryland corporation, its
general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇ ▇▇▇▇▇ REALTY CORP., a Maryland
corporation, its general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
NEW GREEN 1140 REALTY LLC, a
New York limited liability company
By: ▇▇ ▇▇▇▇▇ REALTY CORP., a
Maryland corporation, its sole
member
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇ BROTHERS HOLDINGS INC., D/B/A
▇▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇
BROTHERS HOLDINGS INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
EXHIBIT A-1 (Fee Premises)
(Description of Land)
ALL of that certain lot, piece or parcel of and, with the
buildings and improvements thereon, situate, lying and being
EXHIBIT A-2 (Leasehold Premises)
EXHIBIT B
Notes and Mortgages
EXHIBIT C
Oustanding Principal Balance of the Mortgages and Notes
Property Address Assigning Lender Outstanding
Principal Balance
1140 Avenue of the General Electric $9,485,865.11
Americas Capital Corporation
▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ $6,552,000
Street
1414 Avenue of the LSOF $9,648,182.95
Americas
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $1,033,333.20
South South Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Holdings $12,000,000
South Co., L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Operating $1,000,000
Partnership
50 West 23/rd/ ▇▇▇▇▇▇ Brothers $9,430,618.74
Street Holdings Inc.
TOTAL OUSTANDING PRINCIPAL AMOUNT: $49,150,000.00
FIRST MODIFICATION OF LOAN AGREEMENT
AND COLLATERAL ACCOUNT AGREEMENT
This First Modification of Loan Agreement (the "Modification") is made
as of September 15, 1997 between ▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P. and NEW
GREEN 1140 REALTY LLC (collectively, "Borrower"), ▇▇ ▇▇▇▇▇ REALTY CORP. (the
"REIT") and ▇▇▇▇▇▇ BROTHERS HOLDINGS INC. D/B/A ▇▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇ BROTHERS HOLDINGS INC. ("Lender"). All capitalized words and phrases
not otherwise defined herein shall have the meanings set forth in that
certain Loan Agreement dated as of August 20, 1997 between Borrower and the
Lender (the "Loan Agreement").
RECITALS:
A. Borrower and Lender desire to amend the Loan Agreement and that certain
Collateral Account Agreement dated as of August 20, 1997 between
Borrower, the REIT and Lender (the "Collateral Account Agreement").
B. The Partnership is the fee owner of the premises described on Schedule 1
attached hereto.
C. At the request of Borrower, Lender has purchased those certain notes and
mortgages (as each may be further consolidated, amended, increases
modified a supplemented, the "New Note" and "New Mortgage",) described
more fully on Schedule 2 attached hereto (the "110 ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
Documents"). The ▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇ Documents have been assigned to
Lender and Lender is now the owner and holder of the ▇▇▇ ▇▇▇▇ ▇▇/▇▇/
▇▇▇▇▇▇ Documents.
D. The assignments of the ▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇ Documents will be recorded
in the Office of the City Register, New York County, New York.
E. There is now owing on the ▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇ Documents the aggregate
unpaid principal sum of $20,326,915.38 with interest thereon as more
particularly set forth on Schedule 3 attached hereto.
F. Borrower and Lender have agreed to modify the time and the manner of
payment and the terms and provisions of the New Note in accordance with
the provisions of the Loan Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and in and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto consent and agree as follows:
1. Exhibit A-1 of the Loan Agreement is modified to include the real
property description attached to hereto as Schedule 1.
2. Exhibit B of the Loan Agreement is modified to include the New Note
and New Mortgage described on Schedule 2 attached hereto.
3. Exhibit C of the Loan Agreement is deleted in its entirety and
replaced with Schedule 3 attached hereto.
4. Recital 5 of the Loan Agreement is deleted in its entirety and
replaced with the following:
5. There is now owing on the Notes and Mortgages the aggregate unpaid
principal sum of $69,476,915.38 with interest thereon as more
particularly set forth as Exhibit C attached hereto; and
5. The dollar amount "$49,150,000.00" in the first paragraph following
Recital 6 of the Loan Agreement and in Section O, paragraph (iv) of
the Loan Agreement is deleted and replaced with "$69,476,915.38".
6. The New Note is hereby modified in accordance with the terms of the
Loan Agreement relating to the Notes and Mortgages.
7. On the date hereof, Borrower shall deposit the additional sum of
$20,326,915.38 in the Collateral Account (as defined in the Collateral
Account Agreement), and such sum may be invested in United States
Treasury securities having a maturity most closely approximating
the Maturity Date of the Loans. All references to Collateral
Account in the Collateral Account Agreement shall hereinafter be
deemed to also include all funds deposited in such account pursuant
to the terms of this Modification.
8. All of the representations and warranties contained herein, in the
Loan Agreement (as the same may have been modified by this
Modification) and in the other Loan Documents (other than
representations and warranties which expressly speak only as of a
different date other than the Closing Date) are true and correct in
all material respects as of the date hereof.
9. Borrower represents, warrants and covenants that there are no
offsets, counterclaims or defenses against the Loans, this
Modification, the Loan Agreement or any of the Loan Documents and that
Borrower has full power, authority and legal right to execute this
Modification and to keep and observe all of the terms of this
Modification on its part to be observed or performed.
10. Except as expressly modified pursuant to this Modification, all of
the terms, covenants and provisions of the Loan Agreement and the
other Loan Documents shall continue in full force and effect. In
the event of any conflict or ambiguity between the terms, covenants
and provisions of this Modification and those of the Loan Agreement
and the other Loan Documents, the terms, covenants and provisions of
this Modification shall control.
11. This Modification may not be modified, amended, waived, changed or
terminated orally, but only by an agreement in writing signed by the
party against whom the enforcement of the modification, amendment,
waiver, change or termination is sought.
12. This Modification shall be binding upon and inure to the benefit of
Borrower, Lender, all future holders of the Notes and their
respective successors and assigns.
13. This Modification 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 Modification may
be executed in several counterparts, each of which counterparts
shall be deemed an original instrument and all of which together
shall constitute a single Modification. The failure of any party
hereto to execute this Modification, or any counterpart thereof,
shall not relieve the other signatories from their obligations
hereunder.
14. If any term, covenant or condition of this Modification shall be
held to be invalid, illegal or unenforceable in any respect, this
Modification shall be construed without such provision.
15. In the event of any conflict between the terms of the Loan Agreement
or the Collateral Account Agreement and the terms of this
Modification, the terms of this Modification shall prevail.
16. This Modification shall be governed by and construed in accordance
with the laws of the State of New York and the applicable laws of the
United States of America.
IN WITNESS WHEREOF, THIS MODIFICATION has been executed by Borrower
on Lender the day and year first above written.
▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership
By: ▇▇ ▇▇▇▇▇ REALTY CORP., a Maryland corporation, its
general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇ ▇▇▇▇▇ REALTY CORP., a Maryland corporation, its
general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
NEW GREEN 1140 REALTY LLC, a
New York limited liability company
By: ▇▇ ▇▇▇▇▇ REALTY CORP., a Maryland corporation, its
sole member
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇ BROTHERS HOLDINGS INC., D/B/A ▇▇▇▇▇▇ CAPITAL, A
DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Schedule 1
(Description of Land)
ALL of that certain lot, piece or parcel of land, with the buildings
and improvements thereon, situate, lying and being
Schedule 2
Additional Notes and Mortgages
Schedule 3
Outstanding Principal Balance of the Mortgages and Notes
Outstanding
Property Address Assigning Lender Principal Balance
1140 Avenue of the General Electric Capital $9,485,865.11
Americas Corporation
▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ $6,552,000
1414 Avenue of the LSOF $9,648,182.95
Americas
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ $1,033,333.20
Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Holdings Co., $12,000,000
L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Operating $1,000,000
Partnership
▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Brothers Holdings $9,430,618.74
Inc.
▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, $_______________
FSB
TOTAL OUTSTANDING PRINCIPAL AMOUNT: $____________.00
