PROMISSORY NOTE AND LOAN
AGREEMENT MODIFICATION AND EXTENSION AGREEMENT
made between
MENDIK REAL ESTATE LIMITED PARTNERSHIP
c/o Mendik Corporation
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Borrower
and
FGH REALTY CREDIT CORP.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Lender
Dated: As of September 9, 1996
PROMISSORY NOTE AND LOAN
AGREEMENT MODIFICATION AND EXTENSION AGREEMENT
THIS PROMISSORY NOTE AND LOAN AGREEMENT MODIFICATION AND EXTENSION AGREEMENT
(this "Agreement"), dated as of September 9, 1996, by and among MENDIK REAL
ESTATE LIMITED PARTNERSHIP, a New York limited partnership, having an office at
c/o Mendik Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (the
"Borrower") and FGH REALTY CREDIT CORP., a Delaware corporation (formerly known
as Friesch-Groningsche Hypotheekbank Realty Credit Corporation), having an
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (the "Lender").
W I T N E S S E T H :
WHEREAS, the Borrower executed and delivered to Lender a Promissory Note,
dated September 25, 1991, in the original principal amount of up to
$6,500,000.00, (the "Original Note"), which Original Note evidences a loan in
the original principal amount of $6,500,000.00 (the "Loan") made by the Lender
to the Borrower 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, among other things a Leasehold
Mortgage and Security Agreement, dated as of September 25, 1991, made by the
Borrower to the Lender, and recorded on October 2, 1991 in the Office of the
Clerk of the County of Westchester in Liber 14863, Page 55 (the "Original
Mortgage"), which Original Mortgage encumbers the Ground Lease (as defined in
the Original Mortgage) and the leasehold estate created thereby in certain real
property located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ of New York and as more particularly described in the
Original Mortgage (the "Property"). The Original Note, the Original Mortgage
and the Original Loan Agreement and any and all other documents executed in
connection with the Original Loan, shall be hereinafter collectively referred
to as the "Original Loan Documents";
WHEREAS, the Borrower has requested, and the Lender has agreed, to modify
and extend the terms of the Original Note and the Original Loan Agreement as
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Lender
hereby agree as follows:
A. DEFINED TERMS. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Original Loan Agreement.
B. CONFIRMATION OF INDEBTEDNESS. The Borrower hereby confirms and reaffirms
its promise to pay the principal amount of the Loan and all advances thereof,
plus interest thereon, to the Lender subject to and in accordance with the
terms and limitations of the Original Note, as modified and extended hereby.
C. MODIFICATION AND EXTENSION OF ORIGINAL NOTE. The terms, covenants and
provisions of the Original Note are hereby modified and extended as follows:
1. Increase in Libor Option Interest Rate. Effective from and after
March 25, 1997, Section 2(ii) of the Original Note shall be deleted in its
entirety and replaced with the following:
From and after March 25, 1997, interest shall be payable in respect to
the outstanding principal amount of the Loan at a rate per annum equal
to three percentage points (3.0%) in excess of the Libor Rate for the
relevant Interest Period.
2. Interest Period. The definition of the term "Interest Period" set
forth in Section 1 of the Original Note is hereby amended by deleting the
following from the first line thereof ", six or twelve." In addition, the
first two (2) sentences of Section 3 of the Original Note are hereby deleted in
their entirety, it being the intention of the parties hereto that only three
(3) month Interest Periods shall be available to the Borrower.
3. Fixed Option Termination. Section 4 of the Original Note is hereby
deleted in its entirety, it being the intention of the parties hereto that the
Borrower shall no longer have the right to elect the Fixed Option (as such is
defined in the Original Note).
4. Extension of Maturity Date. The Maturity Date (as such term is
defined in the Original Note) is hereby extended from September 25, 1996 to
September 25, 1997 and accordingly, the definition of "Maturity Date" of the
Original Note is hereby deleted and replaced with "September 25, 1997."
5. Original Mortgage Definition. The definition of Mortgage appearing
on page 4 of the Note is deleted in its entirety and replaced by the following:
"That certain Leasehold Mortgage and Security Agreement, dated September
25, 1991 made by Borrower to Lender, as modified by that certain
Leasehold Mortgage Modification and Extension Agreement, dated
September 9, 1996, as same may be amended, modified, recast or
replaced."
6. Modification of Original Note. As used in the Original Note, the
Original Mortgage, the Original Loan Agreement and the other Original Loan
Documents, the term "Note" shall mean the Original Note, as modified hereby.
D. MODIFICATION AND EXTENSION OF ORIGINAL LOAN AGREEMENT. The Original Loan
Agreement is hereby modified as follows:
1. Funding Commitment Termination. Notwithstanding anything to the
contrary contained in the Original Loan Agreement, as amended hereby, from and
after December 31, 1996, Lender shall have no further obligation to make any
advances of Loan proceeds under the Original Loan Agreement, as amended hereby.
2. Extension of Maturity Date. The Maturity Date (as such term is
defined in the Original Loan Agreement) is hereby extended from September 25,
1996 to September 25, 1997 and accordingly, the definition of "Maturity Date"
set forth in the Original Loan Agreement is hereby deleted and replaced with
"September 25, 1997."
3. Modification of Usage Fee. The Original Loan Agreement is hereby
amended as follows:
(a) the definition of "Usage Fee" appearing on page 14 of the
Original Loan Agreement is amended by inserting the phrase "until September 25,
1996" following the phrase "A non-refundable fee payable monthly" appearing in
the first line of such definition.
(b) Section III(5)(g) appearing on page 22 of the Original Loan
Agreement is hereby amended by inserting the phrase "until September 25, 1996"
at the end of the sentence.
4. Addition of Funding Fee. The Original Loan Agreement is hereby
amended as follows:
(a) The following definition is hereby inserted, in appropriate
alphabetical order, in the definition section of the Original Loan Agreement:
"Funding Fee" - A non-refundable fee payable upon, and as a
condition to, each Loan advance made after September 25, 1996,
which Funding Fee shall be equal to the amount of interest which
would have been earned on such Loan advance (assuming for purposes
of computing said Funding Fee that such Loan Advance was made on
September 25, 1996) for the period (the "Fee Period") from
September 25, 1996 until the date such advance is actually made at
a rate per annum equal to 2.9% provided that such deemed interest
rate shall be computed on the basis of a 360 day year over the
actual number of days in the Fee Period.
(b) The following is hereby inserted at the end of Article III,
Section (5)(g) appearing on page 22 of the Original Loan Agreement:
(h) the Funding Fee, upon each advance of Loan proceeds after
September 25, 1996 in accordance with the terms hereof.
(c) The following is hereby inserted at the end of Article IV,
Section (l)(a) appearing on page 29 of the Original Loan Agreement:
(v) the Funding Fee, in accordance with the provisions hereof.
(d) The following phrase is hereby inserted at the end of Article
VII, Section 5(iv) appearing on page 42 of the Original Loan Agreement:
(v) the Funding Fee, to the extent that it is due in accordance
with the terms hereof.
5. Agent for Service. Pursuant to Section XI(4) of the Loan Agreement,
Borrower appoints Proskauer, Rose, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, LLP, whose present
address is ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, to serve as successor agent
to ▇▇▇▇ & ▇▇▇▇▇ as Borrower's agent for service of process in the State of New
York.
6. Notices. The Original Loan Agreement is hereby amended by deleting
Article VIII, Section (6) in its entirety appearing on page 44 of the Original
Loan Agreement and inserting the following in its place:
(6) 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:
Lender: FGH Realty Credit Corp.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Special Servicing Department
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇▇▇ & Worcester LLP
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Borrower: Mendik Real Estate Limited Partnership
c/o Mendik Corporation
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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. Modification of Original Loan Agreement. As used in the Original
Note, the Original Mortgage and the Original Loan Agreement, and all the other
Original Loan Documents, the term "Loan Agreement" shall mean the Original Loan
Agreement, as amended hereby.
E. REPRESENTATIONS. ETC. The Borrower represents, warrants and covenants to
the Lender that as of the date hereof:
1. there are no offsets, counterclaims or defenses under the Ground Lease
or against the indebtedness evidenced by the Original Note, as
modified hereby, the Original Loan Agreement, as modified hereby, or
secured by the Original Mortgage, as modified by the Leasehold
Mortgage Modification and Extension Agreement, dated the date hereof,
by Borrower to Lender (the "Mortgage Modification") (the Original
Note, as modified hereby, the Original Mortgage, as modified by the
Mortgage Modification, and the Original Loan Agreement, as modified
hereby, and any and all other documents executed in connection with
the Loan are hereinafter, collectively, referred to as the "Loan
Documents");
2. that the outstanding principal amount of the Loan on the date hereof
is $5,223,285.03;
3. that the Borrower has full power, authority and legal right to execute
this Agreement and all of the other loan documents executed in
connection herewith (this Agreement and such other documents are
hereinafter, collectively, referred to as the "Modified Loan
Documents") and to keep and observe all of the terms of this
Agreement, the Modified Loan Documents and the Loan Documents to be
observed or performed by the Borrower;
4. that there are no actions, suits or proceedings pending or, to the
knowledge of the Borrower threatened against or affecting the Borrower
or the Ground Lease or the Property, which could have a material
adverse effect on the Borrower or the Ground Lease and/or the Property
or involving the validity or enforceability of the Original Mortgage,
as modified by the Mortgage Modification, or the priority of the lien
thereof, at law or in equity, and the Borrower is not operating under,
or subject to, or in default of, or in violation with respect to any
order, writ, injunction, decree or demand of any court or any
governmental authorities except set forth on Schedule A attached
hereto and a part hereof;
5. that there has been no material adverse change in the financial
condition of the Borrower since the date of the last financial
statement delivered to the Lender in connection with the Loan:
6. (i) to the best of Borrower's knowledge, there is no default existing
under the Ground Lease with respect to the landlord thereunder and
(ii) there is no default by the Borrower existing under the Ground
Lease, the Original Note, as modified hereby, the Original Mortgage,
as modified by the Mortgage Modification, the Original Loan Agreement,
as modified hereby, the other Modified Loan Documents or the Loan
Documents or any event which with the giving of notice or the passage
of time or both could constitute a default thereunder; and
7. the Ground Lease is in full force and effect and have not been
modified or changed since the date of the Original Note.
F. CHANGES ONLY IN WRITING. The Borrower acknowledges that this Agreement
and all instruments referred to herein can be extended, modified or amended
only in writing executed by the Lender and the Borrower and that none of the
rights or benefits of the Lender can be waived permanently except in a written
document executed by the Lender. The Borrower further acknowledges the
Borrower's understanding that no officer or administrator of the Lender has the
power or the authority from the Lender to make an oral extension or
modification or amendment of any such instrument or agreement on behalf of the
Lender.
G. BINDING NATURE. This Agreement shall be binding upon and inure to the
benefit of the Borrower and the Lender and their respective successors and
assigns.
H. DUPLICATE ORIGINALS. 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.
I. 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.
J. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE LENDER 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, AS
MODIFIED HEREBY, THE ORIGINAL MORTGAGE, AS MODIFIED BY THE MORTGAGE
MODIFICATION, THE ORIGINAL LOAN AGREEMENT, AS MODIFIED HEREBY, AND THE OTHER
LOAN DOCUMENTS.
K. 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.
LENDER:
FGH REALTY CREDIT CORP., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
BORROWER:
MENDIK REAL ESTATE LIMITED PARTNERSHIP,
New York limited partnership,
By: Mendik Corporation,
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
ATTEST: By: NY Real Estate Services 1, Inc.
(f/k/a ▇▇▇▇▇▇ Real Estate Services XV, Inc.),
general partner
__________________________ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary/Assistant Secretary President
The undersigned hereby irrevocably accepts the
appointment as agent for service of process in
accordance with Article IX(4) of the Loan Agreement
and Section D(3) hereof, and the undersigned
acknowledges that the Lender is relying on the
acceptance of this appointment by the undersigned
in making the Loan.
Proskauer, Rose, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, LLP
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Partner
SCHEDULE A
[Litigation]
▇▇▇▇▇ Sword et al. ▇. ▇▇▇▇▇▇ Brothers Holdings, Inc. et al.,Civil Act No.
WMN ▇▇-▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇.
