EXHIBIT 10.21
RECOGNITION AGREEMENT
by and among
THE FIRST NATIONAL BANK OF BOSTON,
individually and as agent
WELLSFORD REAL PROPERTIES, INC.,
COLUMN FINANCIAL, INC.,
PARK AVENUE FINANCING COMPANY, LLC,
PAMC CO-MANAGER, INC.
and
000 XXXX XXXXXX, LLC
Dated as of April 25, 1997
000 Xxxx Xxxxxx
Section 5, Block 1302, Lots 1001-1049 (inclusive)
County of New York
State of New York
After recording, please return to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx X. Xxxx, Esq.
RECOGNITION AGREEMENT
THIS RECOGNITION AGREEMENT (this "Agreement"), made as
of April 25, 1997, by and among THE FIRST NATIONAL BANK OF
BOSTON, a national banking association ("BOB" or, in its capacity
as agent for the Holding Company Lenders under the terms of the
Credit Agreement (as such terms are hereinafter defined), or any
successor agent under the Credit Agreement approved in accordance
with the terms of this Agreement, the "Agent"), having an address
at 000 Xxxxxxxxx Xxxxxx Xxxxx, XX, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000, WELLSFORD REAL PROPERTIES, INC., a Maryland corporation
("Wellsford"; BOB, Wellsford and the other entities that may
become party to the Credit Agreement (as hereinafter defined) are
hereinafter collectively referred to as the "Holding Company
Lenders"), having an address at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, COLUMN FINANCIAL, INC., a Delaware corpora-
tion (together with its successors and assigns, "Mortgage Lend-
er"), having an address at 0000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx,
Xxxxxxx 00000-0000, as mortgagee under the Mortgage (as herein-
after defined), PARK AVENUE FINANCING COMPANY, LLC, a Delaware
limited liability company (the "Holding Company"), having an
address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, PAMC CO-
MANAGER INC., a Delaware corporation (the "Co-Manager"; the
Holding Company and the Co-Manager are, together, the "Holding
Company Borrowers"), having an address at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and 000 XXXX XXXXXX, XXX, a Delaware
limited liability company (the "Mortgage Borrower"), having an
address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H :
WHEREAS, the Mortgage Borrower is the owner of certain
fee, leasehold and reversionary interests in and to real property
located in the City, County and State of New York and commonly
known as 000 Xxxx Xxxxxx, as more particularly described in
Exhibit "A" attached hereto and made a part hereof, and all
buildings and improvements located thereon (collectively, the
"Premises");
WHEREAS, the Mortgage Lender has agreed to make a loan
(the "Mortgage Loan") to the Mortgage Borrower in the aggregate
principal amount of Three Hundred Forty-Five Million Dollars
($345,000,000) (the "Mortgage Loan Amount") evidenced by that
certain Consolidated, Amended and Restated Promissory Note, dated
as of the date hereof (the "Mortgage Note"), made payable by the
Mortgage Borrower, as maker, in favor of the Mortgage Lender, as
payee, in the original principal amount of $345,000,000, and se-
cured by, among other things, (i) that certain Consolidated,
Amended and Restated Mortgage, Security Agreement and Assignment
of Rents (the "Mortgage"), dated as of the date hereof and
intended to be recorded in the Office of the City Register, New
York County, New York (the "Recording Office") prior to the
recordation hereof, given by the Mortgage Borrower, as mortgagor,
for the benefit of the Mortgage Lender, as mortgagee, which Xxxx-
xxxx consolidates the mortgages set forth on Exhibit "B" attached
hereto and made a part hereof, (ii) that certain Cash Management
and Collateral Account Security, Pledge and Assignment Agreement
(the "Cash Management Agreement"), dated as of the date hereof,
between the Mortgage Borrower and the Mortgage Lender, (iii) that
certain Assignment of Leases and Rents (the "Assignment of
Rents"), dated as of the date hereof and intended to be recorded
in the Recording Office prior to the recordation hereof, given by
the Mortgage Borrower, as assignor, for the benefit of the Xxxx-
xxxx Lender, as assignee, and (iv) other related collateral. The
Mortgage Note, the Mortgage, the Cash Management Agreement, the
Assignment of Rents and all other agreements executed and
delivered in connection with the Mortgage Loan, including,
without limitation, the Loan Documents (as defined in the Xxxx-
xxxx), the Private Placement Agency Agreement, of even date here-
with, among the Mortgage Borrower, Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation and 000 Xxxx Xxxxxx Finance Corp. (the
"Depositor") and all other agreements executed for the benefit of
the Mortgage Lender in connection with the Mortgage Loan are
sometimes herein referred to collectively as the "Mortgage Loan
Documents" and all obligations arising from or incurred in
connection with the Mortgage Loan and the offering for sale by
the Depositor of commercial mortgage pass-through certificates
relating to the Mortgage Loan (the "Securitization") as specified
in any or all of the Mortgage Loan Documents, including without
limitation, indemnification and other obligations arising under
the Mortgage Loan Documents or in connection with the Securi-
tization, are sometimes herein referred to collectively as the
"Mortgage Loan Obligations";
WHEREAS, as set forth in that certain Credit Agreement
(the "Credit Agreement"), dated as of the date hereof, by and
among the Holding Company Borrowers, the Holding Company Lenders,
Agent and certain other parties, the Holding Company Lenders have
agreed to make a loan (the "Affiliate Loan") to the Holding
Company Borrowers, as joint and several obligors, in the aggre-
gate principal amount of Eighty Million Dollars ($80,000,000)
evidenced by one (1) or more promissory notes, each dated as of
the date hereof (collectively, and together with each other
promissory note that may be issued by the Holding Company
Borrowers under the Credit Agreement, the "Affiliate Note"), made
payable by the Holding Company Borrowers, as maker, in favor of
each Holding Company Lender, as payee, in the aggregate original
principal amount of $80,000,000, and secured by, among other
things, (i) those certain Stock Pledge Agreements (the "Stock
Pledge Agreements") made by Xxxxxxx Xxxxx in favor of the Agent
with respect to 100% of the capital stock of each of Park Avenue
Management Corporation ("PAMC"), Co-Manager and PAFC Management,
Inc. (the "Holding Company Managing Member") and all dividends
and distributions in respect thereof, (ii) that certain Assign-
ment of Member's Interest (the "Membership Pledge Agreement No.
1") made by the Co-Manager and the Holding Company in favor of
the Agent with respect to the Co-Manager's 0.001% co-managing
membership interest in the Mortgage Borrower and all distribu-
tions in respect thereof and the Holding Company's 99.998% non-
managing membership interest in the Mortgage Borrower and all
distributions in respect thereof, (iii) that certain Assignment
of Member's Interest (the "Membership Pledge Agreement No. 2")
made by the Holding Company Managing Member and Xxxxxxx Xxxxx in
favor of the Agent with respect to the Holding Company Managing
Member's .001% managing member interest in the Holding Company
and all dividends and distributions in respect thereof and Xxxx-
ley Xxxxx'x 99.999% non-managing membership interest in the Ho-
lding Company and all dividends and distributions in respect
thereof, (iv) that certain Cash Collateral Account Security,
Pledge and Assignment Agreement (the "Affiliate Cash Management
Agreement"), by and among the Mortgage Borrower, the Holding
Company Borrowers, PAMC, Xxxxxxx Xxxxx and the Agent, (v) that
certain Conditional Guaranty of Payment and Performance (the
"Conditional Guaranty") made by Xxxxxxx Xxxxx in favor of the
Holding Company Lenders and the Agent, and (vi) that certain
Indemnity Agreement re: Hazardous Materials (the "Indemnity
Agreement") made by Xxxxxxx Xxxxx and the Holding Company Bor-
rowers in favor of the Holding Company Lenders and the Agent,
each dated as of the date hereof (the Affiliate Note, the Credit
Agreement, the Stock Pledge Agreements, the Membership Pledge
Agreement No. 1, the Membership Pledge Agreement No. 2, the
Affiliate Cash Management Agreement, the Conditional Guaranty,
the Indemnity Agreement and any other documents relating thereto
executed and delivered in connection therewith are sometimes col-
lectively referred to herein as the "Affiliate Loan Documents"
and all of the obligations evidenced and secured thereby, whether
now or hereafter existing, whether for principal, premium, if
any, interest, fees, expenses, indemnification obligations or
otherwise, under the Affiliate Loan Documents, are sometimes
collectively referred to herein as the "Holding Company
Obligations";
WHEREAS, the Agent and the Holding Company Lenders have
agreed to acknowledge and recognize that the Holding Company
Obligations are not in any way obligations of the Mortgage
Borrower or PAMC;
WHEREAS, Mortgage Lender has agreed to recognize
certain rights of the Agent and the Holding Company Lenders under
the Affiliate Loan Documents as provided herein; and
WHEREAS, it is a condition to the Mortgage Lender's
making of the Mortgage Loan and the Holding Company Lender's
making of the Affiliate Loan that the parties hereto make, exe-
cute and deliver this Agreement;
NOW, THEREFORE, in consideration of the premises and in
consideration of other good and valuable consideration, the re-
ceipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Defined Terms. Except as otherwise noted, all
initially capitalized terms used but not otherwise defined herein
shall have the respective meanings ascribed thereto in the
Mortgage or in that certain Trust and Servicing Agreement (the
"Trust and Servicing Agreement"), dated on or about the date
hereof, among the Depositor, The Chase Manhattan Bank, as trustee
(the "Trustee"), and GE Capital Asset Management Corporation, as
servicer (the "Servicer").
2. No Liability for Affiliate Loan. The Holding
Company Lenders hereby acknowledge and agree that none of the
Mortgage Borrower, PAMC or the Depositor will ever have any lia-
bility or obligation whatsoever with respect to the Affiliate
Note or otherwise in connection with the payment of the Affiliate
Loan.
3. Characterization of Affiliate Loan. The Agent and
the Holding Company Lenders acknowledge and agree, without
diminishing their rights under Section 8(a) hereof, that:
(a) the Affiliate Loan does not constitute or
impose, and shall not be deemed or construed as constituting or
imposing, a lien or encumbrance upon, or security interest in,
the Mortgaged Property or any portion thereof (other than a
pledge of certain stock and limited liability company membership
interests in the Mortgage Borrower and certain of its affiliates
as set forth in the Affiliate Loan Documents) or otherwise grant-
ing to the Agent or the Holding Company Lenders the status as a
creditor of the Mortgage Borrower, PAMC or the Depositor;
(b) neither the Agent nor the Holding Company
Lenders shall assert, claim or raise as a defense, any such lien,
encumbrance or security interest in the Mortgaged Property or any
status as a creditor of the Mortgage Borrower, PAMC or the Depos-
itor in any action or proceeding, including any insolvency or
bankruptcy proceeding commenced by or against the Mortgage
Borrower or the Holding Company Borrowers; and
(c) neither the Agent nor the Holding Company
Lenders shall assert, pursue, confirm or acquiesce in any way to
any recharacterization of the Affiliate Loan as having conferred
upon the Agent or the Holding Company any lien or encumbrance
upon, or security interest in, the Mortgaged Property or any
portion thereof or as having conferred upon the Agent or the
Holding Company Lenders the status of a creditor of the Mortgage
Borrower, PAMC or the Depositor.
4. Consent to Pledges; Receipt of Instruction Letter.
(a) The Mortgage Lender hereby consents to the
granting by Xxxxxxx Xxxxx, the Co-Manager, the Holding Company
and the Holding Company Managing Member to the Agent of a securi-
ty interest in certain stock and limited liability company mem-
bership interests in the Mortgage Borrower and certain of its
affiliates pursuant to the terms of the Stock Pledge Agreements,
the Membership Pledge Agreement No. 1 and the Membership Pledge
Agreement No. 2. The granting by the Mortgage Lender of such
consent shall be limited to the security interests described in
the Stock Pledge Agreements, the Membership Pledge Agreement No.
1 and the Membership Pledge Agreement No. 2 and shall not relieve
or be construed to relieve the Mortgage Borrower from the re-
quirement of obtaining the Mortgage Lender's prior express writ-
ten consent to any other or further Transfers required under the
Mortgage Loan Documents.
(b) The Mortgage Lender hereby acknowledges
receipt of a copy of an instruction letter (the "Instruction
Letter") of even date herewith from each of the Mortgage Borrower
and the Agent with respect to the disbursement of Excess Cash
Flow (as defined in the Cash Management Agreement) and other
amounts pursuant to Section 3(i) of the Cash Management
Agreement, if any, to the Agent and agrees that, unless otherwise
jointly instructed in writing by the Agent and the Mortgage
Borrower, all Excess Cash Flow and all other amounts pursuant to
Section 3(i) of the Cash Management Agreement, if any, required
or permitted to be released to the Agent under the terms of the
Cash Management Agreement shall be disbursed to the Agent in
accordance with the Instruction Letter and the Cash Management
Agreement.
5. Notice and Cure Rights. The Mortgage Lender
hereby agrees with and for the benefit of the Agent and the
Holding Company Lenders that, when giving notice to the Mortgage
Borrower with respect to a default or Event of Default under the
Mortgage Loan Documents or an acceleration of the Mortgage Loan,
the Mortgage Lender will also give a copy of any such notice to
the Agent and, except in connection with the Mortgage Borrower's
failure to repay the Mortgage Loan in full on the Scheduled
Maturity Date (as defined in the Mortgage Note), the Agent and
the Holding Company Lenders shall thereafter be afforded an op-
portunity, prior to the acceleration of the Mortgage Loan by the
Mortgage Lender, but without waiving the Event of Default, within
thirty (30) days of the giving of such notice by the Mortgage
Lender to the Agent, to cure curable monetary and non-monetary
Events of Default under the Mortgage Loan Documents, subject, in
the case of any non-monetary default that is not susceptible of
being cured within such thirty (30) day period, to an extension
of such thirty (30) day period provided that the cure of such
non-monetary default is being diligently and continuously pursued
to completion by or on behalf of the Holding Company Lenders.
Throughout such thirty (30) day cure period (as the same may be
extended in accordance with the immediately preceding sentence in
the case of certain non-monetary defaults) and for so long as the
cure of the Mortgage Borrower's default is being diligently and
continuously pursued to completion by the Agent or the Holding
Company Lenders, the Mortgage Lender shall forbear from acceler-
ating the Mortgage Loan. In the event that the Agent or the
Holding Company Lenders shall cure any Event of Default under the
Mortgage Loan Documents pursuant to the cure rights granted to
such parties hereunder, then the same shall constitute a
Permitted Cure as defined in and contemplated by the Cash
Management Agreement.
6. Purchase Option. The Mortgage Lender hereby
agrees with and for the benefit of the Holding Company Lenders
that, in the case of an Event of Default under the Mortgage Loan
Documents resulting in an acceleration of the Mortgage Loan by
the Mortgage Lender, the Holding Company Lenders shall have a one
(1) time right, exercisable on written notice (an "Exercise
Notice") given by the Holding Company Lenders to the Mortgage
Lender within ten (10) Business Days after receipt by the Agent
of notice of such acceleration, without waiving or curing the
Event of Default, to purchase all right, title and interest of
the Mortgage Lender in and to the Mortgage Loan in its entirety
at a price equal to the greater of (x) the fair market value of
the Mortgage Loan and (y) the aggregate of the principal, all ac-
crued and unpaid interest (including, if applicable, interest at
the default rate), late charges, prepayment premiums and all
other amounts due from the Mortgage Borrower under the Mortgage
Loan Documents as set forth by the Mortgage Lender in a notice
given to the Holding Company Lenders within five (5) Business
Days after the Mortgage Lender's receipt of the Exercise Notice,
as such notice may be updated through the closing date of the
purchase of the Mortgage Loan. The closing of the purchase of
the Mortgage Loan by the Holding Company Lenders pursuant to the
Exercise Notice shall take place within fifteen (15) Business
Days after delivery of the Exercise Notice at such place in New
York County, New York as shall be reasonably designated by the
Mortgage Lender. At any such closing the Mortgage Lender shall,
upon receipt of (i) the applicable purchase price therefor and
(ii) an Opinion of Counsel to the effect that such purchase
constitutes a "qualified liquidation" (as such term is defined in
Section 860F(a)(4) of the Code), assign and transfer to the Hold-
ing Company Lenders all right, title and interest of the Mortgage
Lender in and to the Mortgage Loan and all Mortgage Loan Docu-
ments and lender's title insurance policies then held by the
Mortgage Lender pursuant to such instruments of assignment
(which, in the case of any recorded Mortgage Loan Documents,
shall be in recordable form) as shall be reasonably acceptable to
the Mortgage Lender and the Holding Company Lenders. Any sale of
the Mortgage Loan by the Mortgage Lender to the Holding Company
Lenders pursuant to the foregoing purchase option shall be with-
out any representation by and/or recourse to the Mortgage Lender,
except for representations from the Mortgage Lender that it has
good title to the Mortgage Loan and has all requisite right and
authority to sell and assign the same to the Holding Company
Lenders. In the event that the purchase price for the Mortgage
Loan shall be based upon the fair market value thereof and the
Holding Company Lenders shall dispute the Mortgage Lender's
calculation of the fair market value of the Mortgage Loan by
written notice to the Mortgage Lender (a "Dispute Notice") within
five (5) Business Days after the delivery by the Mortgage Lender
of its fair market value determination, then the parties shall
use good faith efforts for a period of up to five (5) Business
Days after the delivery of the Dispute Notice to agree upon the
fair market value of the Mortgage Loan and, in the event no such
agreement is reached, neither party shall have any further
obligation to the other in connection with the sale and purchase
of the Mortgage Loan. The Holding Company Lenders will pay all
costs and expenses incurred by the Mortgage Lender in connection
with the Holding Company Lender's exercise of their rights under
this Section 6.
7. Status as Permitted Owner.
(a) The Mortgage Lender hereby acknowledges that,
for so long as the Agent (or its successor by merger or any
successor agent approved in accordance with the terms of this
Agreement) shall be the agent for the Holding Company Lenders
under the Credit Agreement, the Holding Company Lenders, the
Agent or their nominee shall be recognized by the Mortgage Lender
as a Permitted Owner in the event that the Agent, the Holding
Company Lenders or their nominee shall succeed to beneficial
ownership of the Mortgage Borrower by UCC foreclosure sale or
otherwise in the exercise of their rights under the Affiliate
Loan Documents and, in such event, (i) no other consent of the
Mortgage Lender shall be required as a condition precedent to a
transfer of beneficial ownership of the Mortgage Borrower to the
Holding Company Lenders, the Agent or their nominee and (ii) the
Holding Company Lenders (in lieu of the Mortgage Borrower) shall
comply with the requirements of Section 12(f) of the Mortgage.
Notwithstanding the foregoing, for so long as the Mortgage Loan
shall be subject to the Securitization, the Mortgage Lender shall
not recognize as a Permitted Owner any subsequent transferee of
the Holding Company Lenders, the Agent or their nominee following
the transfer of beneficial ownership of the Mortgage Borrower to
the Holding Company Lenders, the Agent or their nominee by UCC
foreclosure sale or otherwise in the exercise of their rights
under the Affiliate Loan Documents unless the Rating Agency
shall, within twenty (20) Business Days after written request,
confirm in writing that, based upon a standard of commercial
reasonableness, no withdrawal, qualification or downgrading of
the then current rating of the Certificates shall result solely
as a result of any such transfer by the Holding Company Lenders,
the Agent or their nominee.
(b) The Mortgage Lender hereby acknowledges that
if, in connection with a prosecution by the Agent or the Holding
Company Lenders of a foreclosure action under the UCC or other
realization by the Agent or the Holding Company Lenders upon the
collateral for the Affiliate Loan following a default by the
Holding Company Borrowers or any other party under the Affiliate
Loan Documents, Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc. ("DLJ, Inc.")
should exercise its first offer right to purchase the Affiliate
Loan, then DLJ, Inc. shall be recognized by the Mortgage Lender
as a Permitted Owner. Notwithstanding the foregoing, for so long
as the Mortgage Loan shall be subject to the Securitization, the
Mortgage Lender shall not recognize as a Permitted Owner any
subsequent transferee of DLJ, Inc. unless the Rating Agency shall
confirm to the Mortgage Lender in writing, within ten (10)
Business Days after written request therefor, that, based on a
standard of commercial reasonableness, no withdrawal, qualifica-
tion or downgrading of the then current rating of the Certifi-
xxxxx shall result from any such transfer by DLJ, Inc.
(c) In connection with the enforcement of the
Affiliate Loan Documents by the Agent of the Holding Company
Lenders or otherwise upon the written request of the Agent or the
Holding Company Lenders, the Mortgage Lender shall cause the Rat-
ing Agency to furnish to the Holding Company Lenders the Rating
Agency's approval or disapproval of the identity of any one (1)
or more (x) proposed transferees of the collateral for the Affil-
iate Loan, (y) Permitted Owners and/or (z) Qualifying Managers,
in each case within ten (10) Business Days after written request
therefor and submission to the Rating Agency of such information
as may reasonably be required by the Rating Agency in order to so
furnish its approval or disapproval of such transferees, which
approval, in the case of a transferee of the collateral for the
Affiliate Loan or as to a proposed Permitted Owner, shall not be
unreasonably withheld based on a standard of commercial reason-
ableness, and in any event, any such Rating Agency approval shall
be evidenced by the Rating Agency's confirmation of no with-
drawal, qualification or downgrading of the then current rating
of the Certificates solely as a result of any such transfer. The
Holding Company Lenders will pay all costs and expenses incurred
by the Mortgage Lender in connection with the Holding Company
Lender's exercise of their rights under this Section 7.
8. Bankruptcy Matters.
(a) The Mortgage Lender hereby agrees that if a
voluntary or involuntary bankruptcy filing or any other insol-
vency proceeding under any local, state or federal law, shall be
commenced with respect to the Mortgage Borrower or any of its di-
rect or indirect beneficial owners (a "Bankruptcy Filing"), then
the Mortgage Lender shall not challenge or object to (A) the
standing of the Agent to be recognized in any Bankruptcy Filing
as a party-in-interest of the Mortgage Borrower through its rela-
tionship as a creditor and/or party in interest of the Holding
Company Borrowers and their direct and indirect beneficial owners
and (B) the exercise by the Agent of its right to exercise all
voting and other management or approval rights and powers of the
Mortgage Borrower and its direct and indirect beneficial owners
either in its capacity as a secured creditor of the Holding Com-
pany Borrowers or their direct or indirect beneficial owners or
as successor to such parties by UCC foreclosure.
(b) The Holding Company Lenders will not, in
their capacity as creditors of the Holding Company Borrowers,
file a petition in bankruptcy with respect to the Mortgage
Borrower or PAMC or seek to consolidate the Mortgage Borrower or
PAMC in the bankruptcy proceeding of any member or other direct
or indirect beneficial owner of the Mortgage Borrower, including
any of the Holding Company Borrowers.
(c) The Mortgage Lender will not declare an Event
of Default solely as a result of the occurrence of any of the
events described in clauses (f) or (g) of the definition of
"Event of Default" in the Mortgage with respect to any member of
the Mortgage Borrower unless such event shall cause a dissolution
of the Mortgage Borrower or a disruption of the payment of debt
service or other amounts payable under the Mortgage Note and the
other Mortgage Loan Documents.
(d) If the Holding Company Lenders, in violation
of the express provisions hereof, shall commence, prosecute or
participate in any suit, action, case or proceeding against the
Mortgage Borrower, the Mortgage Lender may intervene and inter-
pose such defense or plea as it shall elect, including that of
bad faith filing by the Agent and/or the Holding Company Lenders,
and shall, in any event, be entitled to restrain, the actions
relating to the Mortgaged Property or the Mortgage Borrower in
the same suit, action, case or proceeding or in any independent
suit, action, case or proceeding.
9. Selection of Property Manager. Following the oc-
xxxxxxxx of an event of default under the Affiliate Loan
Documents beyond any applicable notice and cure period, the
Holding Company Lenders or the Agent (in lieu of the Mortgage
Borrower) shall have the right to select a new Manager of the
Mortgaged Property, subject to the terms of the Mortgage with
respect thereto, including, without limitation, that such new
Manager be or employ a Qualifying Manager.
10. Estoppel Certificates.
(a) The Mortgage Lender shall, from time to time
(but not more than twice in any six (6) month period), upon
twenty (20) days' prior written request by the Agent of the
Holding Company Lenders, execute, acknowledge and deliver to the
Holding Company Lenders a certification signed by an authorized
officer or officers of the Mortgage Lender setting forth (a) the
amount of accrued and unpaid interest and the outstanding prin-
cipal amount of the Mortgage Note and (b) either that, to the
actual knowledge of the signer of such certificate and based on
no independent investigation, no Event of Default exists or, if
any Event of Default shall then exist and be continuing, speci-
fying any such Event of Default of which the Mortgage Lender has
actual knowledge.
(b) The Agent shall, from time to time (but not
more than twice in any six (6) month period), upon twenty (20)
days' prior written request by the Mortgage Lender, execute, ac-
knowledge and deliver to the Mortgage Lender a certification
signed by an authorized officer or officers of the Agent setting
forth (a) the amount of accrued and unpaid interest and the out-
standing principal amount of the Affiliate Note and (b) either
that, to the actual knowledge of the signer of such certificate
and based on no independent investigation, no event of default
exists or, if any event of default shall then exist and be
continuing under the Affiliate Loan Documents, specifying any
such event of default of which the Agent has actual knowledge.
11. Substitute Agent. Except in connection with a
merger of the Agent with and into another Person, if the Mortgage
Loan is the subject of the Securitization neither the Agent nor
the Holding Company Lenders shall seek, cause, suffer or permit
the substitution for the Agent of a new agent under the Credit
Agreement unless and until the Holding Company Lenders shall have
received written confirmation from the Rating Agency that, based
on a standard of commercial reasonableness, such substitution
will not result in the withdrawal, qualification or downgrading
of the then current ratings assigned to the Certificates by the
Rating Agency. In the event that the Agent or the Holding Compa-
ny Lenders shall seek to obtain the Rating Agency's confirmation
as to any proposed substitution of a new agent in place of the
current Agent under the Credit Agreement, then, within ten (10)
Business Days after written request by the Agent and/or the
Holding Company Lenders to the Rating Agency and the submission by
the Agent and/or the Holding Company Lenders to the Mortgage
Lender and the Rating Agency of all information and materials
reasonably necessary in connection with such request, the Rating
Agency shall indicate its consent to or disapproval of such
substitution (based on a standard of commercial reasonableness),
failing which the Rating Agency shall be deemed to have disap-
proved of such proposed substitution. The granting by the Rating
Agency of any such consent shall not be construed to relieve the
Holding Company Lenders, the Agent and/or any new agent under the
Credit Agreement from the requirement of obtaining the Rating
Agency's prior express written confirmation with respect to any
other or further substitution for the agent under the Credit
Agreement.
12. No Increase in Principal Indebtedness. The
Mortgage Lender and the Mortgage Borrower shall not enter into
any amendment or modification of the Mortgage Loan Documents
providing for any increase in the principal indebtedness out-
standing under the Mortgage Note in excess of the then unamor-
tized principal balance thereof; provided, however, that neither
the foregoing nor any of the other terms and conditions hereof
shall prohibit or restrict:
(a) any increase in the principal indebtedness out-
standing under the Mortgage Note (i) in connection with any
disbursement by the Mortgage Lender of such sums as the
Mortgage Lender deems reasonably necessary or appropriate to
protect the Mortgage Lender's interest in the Mortgaged
Property (including, but not limited to, disbursement of
reasonable attorneys' fees and disbursements, costs relating
to the entry upon the Mortgaged Property to make repairs or
the taking of other action to protect the security of or
enforce the terms and provisions of the Mortgage, and the
payment, purchase, contest or compromise of any encumbrance,
charge or lien which in the judgment of the Mortgage Lender
appears to be prior or superior to the Mortgage), P&I Ad-
vances and Servicing Advances (as defined in the Trust and
Servicing Agreement) (whether by the Servicer, the Trustee
or otherwise) or (ii) in connection with the capitalization
of accrued and unpaid interest under the Mortgage Note or
the re-setting of the interest rate payable thereunder fol-
lowing the occurrence of any Event of Default;
(b) the right of the Mortgage Lender, the Trustee, the
Servicer and/or the Special Servicer to extend the maturity
date of the Mortgage Note for a period of up to two (2)
years after the initially scheduled maturity date thereunder
in accordance with the terms of the Trust and Servicing
Agreement; and
(c) subject to Section 5 of this Agreement, the exer-
cise by the Mortgage Lender, the Trustee, the Servicer
and/or the Special Servicer at any time following and during
the continuance of an Event of Default of any of its or
their rights under the Mortgage Loan Documents.
13. Amendment of Cash Management Agreement. Unless
and until the Affiliate Loan shall have been paid in full, the
Mortgage Lender and the Mortgage Borrower shall not enter into
any amendment or modification of (a) the Cash Management Agree-
ment or (b) any of the transfer restrictions, provisions relating
to the approval of Managers of the Premises or monetary terms of
the Mortgage without the prior written consent of the Agent (or
the then holders of a majority in principal amount of the then
outstanding Affiliate Note); provided, however, that the monetary
terms of the Mortgage and/or any of the provisions thereof
relating to the approval of Managers of the Premises and/or any
of the terms of the Cash Management Agreement may be modified
after and during the continuance of any Event of Default in the
sole discretion of the Mortgage Lender and without being required
to obtain the consent or approval of, or being required to give
any notice to, the Agent or the Holding Company Lenders.
14. Transfer Restrictions. In connection with any
prosecution by the Agent or the Holding Company Lenders of a
foreclosure action under the UCC or other realization by the
Agent or the Holding Company Lenders upon the collateral for the
Affiliate Loan, the Holding Company Lenders shall not cause any
Event of Default by failing to comply with the transfer restric-
tions set forth in the Mortgage with respect to direct and indi-
rect ownership interests in the Mortgage Borrower and the Mort-
gaged Property, shall expressly advise each bidder for and/or
proposed transferee of such collateral as to the Permitted Owner
provisions and other Transfer restrictions in the Mortgage and
shall request of any such party as may succeed to ownership of
the collateral for the Affiliate Loan that such party act under
the Affiliate Loan Documents in a manner consistent with such
provisions and restrictions.
15. Successors and Assigns. All of the covenants,
agreements and provisions contained in this Agreement shall be
binding upon all of the parties hereto and inure to the benefit
solely of (i) Mortgage Lender and its successors and assigns,
including the Trustee, the Servicer and the Special Servicer,
(ii) BOB, Wellsford and future holders of Affiliate Notes and
their respective successors and assigns, in their capacity as
Holding Company Lenders, (iii) the Agent and its successor by
merger, in its capacity as agent under the Credit Agreement, and
(iv) any successor agent to the Agent approved by the Rating
Agency in accordance with Section 11 hereof. No other person
(including, without limitation, the Mortgage Borrower or the
Holding Company Borrowers) shall have standing to require compli-
ance with such covenants, agreements and provisions or be deemed,
under any circumstances, to be a beneficiary of such covenants,
agreements and provisions.
16. Modification. This Agreement may not be changed
orally, but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification or
discharge is sought.
17. Governing Law. This Agreement shall be governed
by, construed and enforced in accordance with the laws of the
State of New York.
18. Securitization. The rights of Mortgage Lender
under this Agreement are intended to be assigned on the date
hereof, together with the other Mortgage Loan Documents, to the
Depositor, and immediately thereafter Depositor will deposit the
Loan Documents into a trust to be held by the Trustee as an asset
in a Securitization for the benefit of the holders of the
Certificates. The Holding Company Lenders hereby consent to such
assignments in connection with the Securitization and agree that
the terms and provisions hereof shall inure to the benefit of and
be binding upon each such assignees as though each such assignee
were the named Mortgage Lender herein.
19. Permitted Acts of Mortgage Lender. The Holding
Company Lenders hereby agree that the Mortgage Lender may, from
time to time, at its sole discretion and without notice to or
consent of or from the Holding Company Lenders, and without af-
fecting the obligations of the Holding Company Lenders herein,
take any or all of the following actions:
(a) retain or obtain a lien or security interest
in any property (other than the collateral described in the
Affiliate Loan Documents) to secure all or any part of the Xxxx-
xxxx Loan;
(b) consistent with the provisions of Section 12
hereof, change the maturity date, manner, place or terms of
payments or interest rates or change or extend the time of
payment of, renew or alter, all or any part of the Mortgage Loan,
any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the provisions hereof shall
apply to the Mortgage Loan as so changed, extended, renewed or
altered;
(c) sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Mortgage Loan (including,
without limitation, the Mortgaged Property) or any part thereof
or any other liabilities incurred directly or indirectly in
respect thereof or hereof, and/or any offset with respect
thereto;
(d) exercise, refrain from exercising or release
any of its rights and/or remedies against the Mortgage Borrower
or other Persons (including, without limitation, any guarantor of
the Mortgage Loan Obligations) or otherwise act or refrain from
acting; and
(e) settle or compromise the Mortgage Loan or
any part thereof or any security therefor, or any liability
incurred directly or indirectly in respect thereof or hereof, and
may subordinate the payment of all or any part thereof to the
payment of any liability (whether due or not) of the Mortgage
Borrower.
20. Specific Performance. The Mortgage Lender, the
Agent and the Holding Company Lenders are each hereby authorized
to demand specific performance of this Agreement and each hereby
irrevocably waive any defense based on the adequacy of a remedy
at law, which might be asserted as a bar to such remedy of
specific performance.
21. Obligations Hereunder Not Affected. All rights,
interests and obligations of the parties under this Agreement
shall remain in full force and effect irrespective of:
(i) any lack of validly or enforceability of
the Mortgage, the Mortgage Note or any of the other Mortgage
Loan Documents;
(ii) any change in the time, manner or place
of payment of, or in any other term of, all or any of the
Mortgage Loan or any other amendment or waiver of or any
consent to or departure from the Mortgage, the Mortgage Note
or any of the other Mortgage Loan Documents made in
accordance with the terms hereof;
(iii) any exchange, release or non-
perfection of any collateral for all or any of the Mortgage
Loan; or
(iv) any other circumstance which might
otherwise constitute a defense available to a subordinated
creditor.
This Agreement shall continue to be effective or be reinstated,
as the case may be, if at any time any payment on account of the
Mortgage Loan is rescinded or must otherwise be returned by the
Mortgage Lender upon the insolvency, bankruptcy or reorganization
of the Mortgage Borrower or otherwise in any legal proceeding,
all as though such payment had not been made.
22. No Interference. The Holding Company Lenders, in
their capacity as lenders to the Holding Company Borrowers and
without diminishing their rights under Section 8(a)hereof, agree
not to contest, obstruct, hinder, challenge, question, seek to
enjoin or otherwise interfere with in any manner the Mortgage
Lender in the exercise of its rights or remedies in respect of
the Mortgage Loan, in any settlement or "work-out" discussions or
in any sale, auction or transfer of any portion of the Mortgaged
Property pursuant to such remedies or discussions.
23. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original,
but such counterparts together shall constitute one and the same
instrument.
24. Severability. All rights, powers and remedies
provided in this Agreement may be exercised only to the extent
that the exercise thereof does not violate any applicable law and
are intended to be limited to the extent necessary to avoid
rendering this Agreement invalid, illegal or unenforceable. In
the event that any of the terms, covenants, conditions or other
provisions of this Agreement shall be deemed invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining terms, covenants, conditions and
other provisions of this Agreement shall in no way be affected,
prejudiced or disturbed thereby.
25. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered, sent by overnight courier,
mailed postage prepaid, or transmitted by facsimile transmission,
and confirmed by a similar writing delivered by any method
aforesaid, and addressed as follows:
If to the Holding Company Lenders:
The First National Bank of Boston,
individually and as Agent
000 Xxxxxxxxx Xxxxxx Xxxxx, XX
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No: (000) 000-0000
-and to-
The First National Bank of Boston,
individually and as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Real Estate Division
Facsimile No: (000) 000-0000
-and to-
Wellsford Real Properties, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
with a copy in each case to:
Long Xxxxxxxx Xxxxxx L.L.P.
5300 Suntrust Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
-and to-
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, LLP
1290 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Mortgage Lender:
The Chase Manhattan Bank, as trustee,
assignee of the Mortgage Lender
Global Trust Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Holding Company Borrowers:
Park Avenue Financing Company LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
-and to-
PAMC CO-Manager Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
with a copy in each case to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Mortgage Borrower:
000 Xxxx Xxxxxx, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Rating Agency:
Duff & Xxxxxx Credit Rating Co.
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Structured Finance - Commercial Real
Estate Monitoring
Facsimile No.: (000) 000-0000
or to such other address as any of the foregoing parties or
entities may designate in writing to the other parties hereto.
Any such notice, demand or communication given hereunder by hand
or overnight courier shall be effective upon delivery, except
that if a notice is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such
notice shall be deemed to have been delivered on the date of such
refusal or inability to deliver, or, with respect to certified
mail, three (3) days after mailing as aforesaid and in the case
of notices sent by facsimile transmission, upon "answer back",
provided notices of default or acceleration shall only be deemed
given or served as of the date of delivery, except that if a
notice is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice shall
be deemed to have been delivered on the date of such refusal or
inability to deliver.
26. Conflict. In the event of any inconsistency
between this Agreement, on the one hand, and the Affiliate Loan
Documents and/or the Mortgage Loan Documents, on the other hand,
then it is expressly understood and agreed that, as among the
Agent, the Holding Company Lenders, the Mortgage Lender and the
Mortgage Borrower, the terms and provisions of this Agreement
shall govern and prevail.
27. Termination. Upon repayment in full of the
indebtedness evidenced by the Mortgage Loan Documents and the
Affiliate Loan Documents, the parties hereto agree to execute,
acknowledge and deliver a termination of this Agreement in
recordable form.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have each executed
this Agreement as of the day and year first written above.
THE FIRST NATIONAL BANK OF BOSTON, in-
dividually and as agent
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
WELLSFORD REAL PROPERTIES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
COLUMN FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title:
PARK AVENUE FINANCING COMPANY, LLC
By: PAFC Management, Inc.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title:
PAMC CO-MANAGER INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title:
000 XXXX XXXXXX, LLC
By: Park Avenue Management
Corporation
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title:
By: PAMC Co-Manager Inc.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title:
STATE OF NEW YORK )
) : ss.
COUNTY OF NEW YORK )
On this 25th day of April, 1997 before me personally
came Xxxx X. Xxxxxx, to me known, who being by me duly sworn, did
depose and say that he resides at ___________________ that he is
a Managing Director of THE FIRST NATIONAL BANK OF BOSTON, the
national banking association described in and which executed the
above instrument; and that he signed his name thereto by
authority of the board of directors of said national banking
association.
_______________________________
Notary Public
STATE OF NEW YORK )
) : ss.
COUNTY OF NEW YORK )
On this 25th day of April, 1997 before me personally
came __________, to me known, who being by me duly sworn, did
depose and say that he resides at ___________________ that he
is a ________________ of WELLSFORD REAL PROPERTIES, INC., the
corporation described in and which executed the above instrument;
and that he signed [ his / her ] name thereto by authority of
the board of directors of said corporation.
_______________________________
Notary Public
STATE OF NEW YORK )
) : ss.
COUNTY OF NEW YORK )
On this 25th day of April, 1997 before me personally
came __________, to me known, who being by me duly sworn, did
depose and say that he resides at ___________________ that he
is a ________________ of THE COLUMN FINANCIAL, INC., the
corporation described in and which executed the above instrument;
and that he signed [his / her ] name thereto by authority of
the board of directors of said corporation.
_______________________________
Notary Public
STATE OF NEW YORK )
) : ss.
COUNTY OF NEW YORK )
On this 25th day of April, 1997 before me personally
came __________, to me known, who being by me duly sworn, did
depose and say that he resides at ___________________ that he is
a ________________ of PAFC Management Inc., a corporation de-
scribed in and which is the managing member of PARK AVENUE
FINANCING COMPANY, LLC, the limited liability company that exe-
cuted the foregoing instrument; and that this instrument has been
duly executed by such corporation as the act and deed of PARK
AVENUE FINANCING COMPANY, LLC; and that said _________________
executed the same.
_______________________________
Notary Public
STATE OF NEW YORK )
) : ss.
COUNTY OF NEW YORK )
On this 25th day of April, 1997 before me personally
came __________, to me known, who being by me duly sworn, did
depose and say that he resides at ___________________ that he
is a ________________ of THE PAMC CO-MANAGER, INC., the corpora-
tion described in and which executed the above instrument; and
that he signed [ his / her ] name thereto by authority of the
board of directors of said corporation.
_______________________________
Notary Public
STATE OF NEW YORK )
) : ss.
COUNTY OF NEW YORK )
On this 25th day of April, 1997 before me personally
came __________, to me known, who being by me duly sworn, did
depose and say that he resides at ___________________ that he is
a ________________ of Park Avenue Management Corporation and a
__________ of PAMC Co-Manager Inc., the corporations described in
and which are the managing members of 000 XXXX XXXXXX, LLC, the
limited liability company that executed the foregoing instrument;
and that this instrument has been duly executed by such corpora-
tions as the act and deed of 000 XXXX XXXXXX, LLC; and that said
_________________ executed the same.
_______________________________
Notary Public
Exhibit A
(Real Property Description)
Exhibit B
(Description of the Mortgage)
