NOTE CONSOLIDATION AND MODIFICATION AGREEMENT
EXHIBIT
4.4
THIS
AGREEMENT (this “Agreement”) made as of this 9th day
of October, 2002, between DEUTSCHE BANC MORTGAGE CAPITAL, L.L.C., having an
address at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Lender”) and URBAN DEVELOPMENT
PARTNERS (61), LLC, a Connecticut limited liability company, whose address is
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Borrower”).
WITNESSETH
WHEREAS,
Lender is the lawful owner and holder of the notes (collectively, the “Notes”)
secured by the mortgages more particularly described in Schedule A hereto
which Notes evidence Borrower’s obligation to pay the aggregate principal amount
of $15,850,000 (the “Consolidated
Indebtedness”), together with interest
thereon; and
WHEREAS,
Lender and Borrower have agreed to consolidate and modify the Notes as
hereinafter set forth.
NOW,
THEREFORE, in consideration of the agreements herein expressed and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
1. The
Notes and the indebtedness evidenced thereby are hereby consolidated so that
together they shall hereafter evidence a single indebtedness in the aggregate
principal amount of the Consolidated Indebtedness together with interest
thereon.
2. Borrower
hereby acknowledges that it is indebted to Lender in accordance with the Notes
and that the aggregate principal amount of the Notes is
$15,850,000.
3. Borrower
agrees that the Notes are hereby modified and promises to pay to Lender the
Consolidated Indebtedness in accordance with the terms, covenants and conditions
of the note attached hereto as Exhibit A, which
terms, covenants and conditions supersede all provisions of the Notes, and
hereby represents and warrants to Lender that there exist no defenses, offsets
or counterclaims with respect to Borrower’s obligations thereunder.
SCHEDULE
A
Existing
Notes
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1.
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Mortgage
made by 306 East 61 Corp. -to- Excelsior Savings Bank, in the amount of
$240,000.00, dated 8/16/62 and recorded on 8/20/62 in Liber 6080 mp
190. (Mortgage Tax Paid
$1,200.00.)
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(a)
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Assignment
of Mortgage made by Excelsior Empire Savings Bank f/k/a Excelsior Savings
Bank -to- The Western Savings Fund Society of Philadelphia, dated 10/23/67
and recorded on 10/26/67 in Record Liber 236 cp 46. Assigns
mortgage 1.
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2.
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Mortgage
made by 306 East 61 Corp -to- The Western Savings Fund Society of
Philadelphia, in the amount of $538,556.49, dated 10/25/67 and recorded on
10/31/67 in Record Liber 237 cp 221. (Mortgage Tax Paid
$2,693.00.)
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(a)
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Consolidation
and Extension Agreement made between The Western Savings Fund Society of
Philadelphia -and- 306 East 61 Corp., dated as of 10/25/67 and recorded on
10/31/67 in Record Liber 237 page 230. Consolidates
mortgages 1 and 2 to form a single lien of
$750,000.00.
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(b)
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Extension
Agreement made between The Western Savings Fund Society of Philadelphia
-and- 306 East 61 Corp., dated 10/1/72 and recorded on 2/26/73 in Reel 269
page 1259. Extends Mortgages 1 and 2, as
consolidated.
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(c)
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Assignment
of Mortgage made by The Philadelphia Savings Fund Society, successor by
merger to The Western Savings Fund Society of Philadelphia -to- ▇▇▇▇ ▇▇▇▇▇
Life Insurance Company, dated as of 9/23/83 and recorded on 8/16/84 in
Reel 824 page 3. Assigns mortgages 1 and 2, as
consolidated.
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(d)
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Extension
Agreement made between ▇▇▇▇ ▇▇▇▇▇ Life Insurance Company -▇▇▇-▇▇▇ ▇▇▇▇ 61
Corp., dated as of 10/1/87 and recorded on 1/14/88 in Reel 1347
page 1887. Extends Mortgages 1 and 2, as
consolidated.
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(e)
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Assignment
of Mortgage made by ▇▇▇▇ ▇▇▇▇▇ Life Insurance Company -to- Apple Bank for
Savings, dated 11/1/88 and recorded on 11/28/88 in Reel 1498 page
2408. Assigns Mortgages 1 and 2, as
consolidated.
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3.
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Mortgage
made by 306 East 61 Corp. -to- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, in the
amount of $2,000,000.00, dated 12/14/84 and recorded on 12/18/84 in Reel
857 page 512. (Mortgage Tax Paid
$45,000.00.)
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(a)
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Extension
Agreement made between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ -and- 306 East 61
Corp., dated 11/4/88 and recorded on 11/28/88 in Reel 1498 page
2416. Extends Mortgage
3.
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Sch.
A-1
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(b)
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Extension
Agreement made between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ -and- 306 East 61
Corp., dated 3/22/95 and recorded on 8/4/95 in Reel 2230 page
1973. Extends Mortgage
3.
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(c)
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Assignment
of Mortgage made by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executor of the Estate of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ deceased -to- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, dated 11/17/97 and recorded on
5/26/98 in Reel 2574 page 1752. Assigns mortgage
3.
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(d)
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Assignment
of Mortgage made by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -to- Apple Bank for Savings, dated
12/1/98 and recorded on 12/31/98 in Reel 2784 page
2315. Assigns mortgage
3.
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(e)
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Assignment
of Mortgage made by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ -to- Apple Bank for Savings, dated
12/1/98 and recorded on 12/31/98 in Reel 2784 page
2310. Assigns mortgage
3.
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4.
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Mortgage
made by 306 East 61 Corp. -to- Apple Bank for Savings, in the amount of
$635,259.80, dated 11/4/88 and recorded on 11/28/88 in Reel 1498 page
2374. (Mortgage Tax Paid
$14,294.25.)
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(a)
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Consolidation
and Extension Agreement made between 306 East 61 Corp. -and-Apple Bank for
Savings, dated 11/4/88 and recorded on 11/28/88 in Reel 1498 page
2381. Consolidates mortgages 1, 2 and 4 to form a single lien
of $1,000,000.00.
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(b)
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Modification
& Extension Agreement made between 306 East 61 Corp., -and-Apple Bank
for Savings, dated as of 12/1/93 and recorded on 8/4/95 in Reel 2230 page
1928. Modifies and Extends Mortgages 1, 2 and 4, as
consolidated.
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5.
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Mortgage
made by 306 East 61 Corp. -to- Apple Bank for Savings, in the amount of
$150,000.00. dated 12/1/98 and recorded on 12/31/98 in Reel 2784 page
2320. (Mortgage Tax Paid
$3,000.00.)
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(a)
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Consolidation
and Extension Agreement made between 306 East 61 Corp. -and-Apple Bank for
Savings, dated as of 12/1/98 and recorded on 12/31/98 in Reel 2784 page
2327. Consolidates mortgages 1, 2, 3, 4 and 5 to form a single
lien of $3,150,000.00.
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(b)
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Assignment
of Mortgage made by Apple Bank for Savings -to- Builders Bank, recorded on
5/21/01 in Reel 3292 Page 1630. Assigns mortgages #1 through
#5, as consolidated.
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
Sch.
A-2
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6.
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Mortgage
made by Urban Development Partners (61) LLC -to- Builders Bank, in the
amount of $10,120,746.39, dated 5/10/01 and recorded on 5/21/01 in Reel
3292 Page 1640. (Mortgage Tax Paid
$278,319.25.)
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(a)
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Consolidation,
Amended and Restated Mortgage Agreement made between Urban Development
Partners (61) LLC -and- Builders Bank, dated 5/10/01 and recorded on
5/21/01 in Reel 3292 Page 1651. Consolidates mortgages #1
through #6 to form a single lien of
$13,150,000.00.
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(b)
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Assignment
of Mortgage made by Builders Bank, 10/9/02 and recorded
_____/ _____/02 in Reel _______, page _______. Assigns
mortgages #1 through #6, as
consolidated.
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7.
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Gap
Mortgage made by Urban Development Partners (61) LLC to Deutsche Banc
Mortgage Capital, L.L.C. in the amount of $2,700,000.00, dated 10/9/02 and
recorded ____/_____/02 in Reel ______, page ________. (Mortgage
Tax Paid: $74,250.00)
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Sch.
A-3
EXHIBIT
A
Form
of Note
(See
Attached Pages)
A-1
PROMISSORY
NOTE
| $15,850,000.00 |
October 9,
2002
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FOR VALUE
RECEIVED, the undersigned, URBAN DEVELOPMENT PARTNERS (61), LLC, a Connecticut
limited liability company (the “Maker”), promises to pay, in
installments as hereinafter provided, to DEUTSCHE BANC MORTGAGE CAPITAL, L.L.C.,
a Delaware limited liability company, and its successors and/or assigns (the
“Payee”), in lawful money of the
United States of America, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ or at such other place as Payee may direct, the principal sum of Fifteen
Million Eight Hundred Fifty Thousand and No/100 Dollars ($15,850,000.00),
together with interest thereon from the date hereof at the rate of 6.20% per
annum (the “Interest
Rate”) at
the time, and under the circumstances set forth in the Mortgage, in each case
computed on the basis of a 360-day year and accrued and paid for the actual
number of days elapsed in any period for which interest is payable.
Section
1.
(a) Payments
of principal and interest shall be paid in installments as follows:
(i) On
the date hereof, a payment of interest only in the amount of $62,783.61 with
respect to the period commencing on the date hereof and ending on, and
including, the last day of the month in which this Note is executed (the “Stub
Interest”);
(ii) A
constant payment of $97,076.33 (the “Monthly
Payment”) on
the first day of December, 2002 and on the first day of each calendar month
thereafter up to and including the first day of October, 2012 (each, a “Payment
Date”); and
(iii) The
balance of said principal sum and all accrued but unpaid interest thereon shall
be due and payable on the first day of November, 2012 (the “Maturity
Date”).
(b) Payments
in federal funds immediately available at the place designated for payment
received by Payee prior to 2:00 p.m. local time on a day on which Payee is open
for business at said place of payment shall be credited prior to close of
business, while other payments, at the option of Payee, may not be credited
until immediately available to Payee in federal funds at the place designated
for payment prior to 2:00 p.m. local time on a day on which Payee is open for
business.
(c) In
the event that any payment is not received by Payee on the date when due
(subject to the grace period provided in Section 4(a) hereof), then, in addition
to any default interest payments due hereunder. Maker shall also pay
to Payee a late charge in an amount equal to five percent (5%) of the amount of
such overdue payment.
Section
2. This
Note is secured by, among other things, (a) a mortgage (the “Mortgage”)
from Maker, as mortgagor, to Payee, as mortgagee, covering certain real
property, consisting of land and the buildings and improvements thereon located
in the City of New York, County of New York, State of New York (the “Mortgaged
Property”) and (b) an assignment of
leases and rents (the “Assignment”), from Maker to
Payee. Reference is made to such documents for a description of the
nature and extent of the security afforded thereby, the rights of the holder
hereof in respect of such security and the terms and conditions upon which this
Note is secured. The holder of this Note is entitled to the benefits
of the Mortgage and the Assignment and may enforce the agreements of Maker
contained therein and exercise the remedies provided therein or otherwise in
respect thereof, all in accordance with the terms thereof.
A-2
Section
3. The
principal amount of this Note is subject to prepayment, in whole but not in
part, without premium, at the option of Maker, only on any Payment Date within
three (3) months prior to the Maturity Date, as more particularly set forth in
the Mortgage; the foregoing being the sole cash prepayment option exercisable by
Maker. The principal amount of this Note is also subject to
prepayment, in part, at the option of Payee, (a) upon the occurrence of a
condemnation or casualty affecting the Mortgaged Property, all as provided in
the Mortgage and (b) pursuant to and in accordance with Section 1.4 of the
Mortgage. This Note is also subject to a right of defeasance, at the
option of Maker, at the times and under the conditions set forth in the
Mortgage.
Section
4.
(a) It
is hereby expressly agreed that should any default occur in the payment of any
amount due under this Note and such payment is not made within five (5) days of
the date such payment is due (provided, however, that no
grace period is provided for the payment of principal and interest due on the
Maturity Date), or should any other default occur under the Mortgage or any of
the Loan Documents which is not cured within any applicable grace or cure
period, then an Event of Default shall exist hereunder.
(b) Maker
hereby waives presentment for payment, demand, protest, notice of protest or
other notice of dishonor. To the extent permitted by law, Maker
hereby waives and releases all errors, defects and imperfections in any
proceedings instituted by Payee under the terms of this Note or of the Mortgage,
as well as all benefit that might accrue to Maker by virtue of any present or
future laws exempting the Mortgaged Property, or any part of the proceeds
arising from any sale of any such property, from attachment, levy or sale under
execution, or providing for any stay of execution, exemption from civil process
or extension of time for payment.
(c) The
remedies of Payee as provided herein or in the Mortgage shall be cumulative and
concurrent and may be pursued successively or concurrently against Maker and/or
the collateral securing this Note. No failure on the part of Payee in
exercising any right or remedy hereunder shall operate as waiver or release
thereof, nor shall any single or partial exercise of any such right or remedy
preclude any other further exercise thereof or the exercise of any other right
or remedy hereunder.
A-3
No
modification or waiver of any provision of this Note shall be effective unless
the same shall be in writing signed by the party against which enforcement of
such modification or waiver is sought.
Section
5. So
long as any Event of Default exists hereunder, regardless of whether or not
there has been an acceleration of the indebtedness evidenced hereby, and at all
times after maturity of the indebtedness evidenced hereby (whether by
acceleration or otherwise), interest shall accrue on the outstanding principal
balance of this Note, from the date of the relevant Event of Default (without
regard to any notice or grace period), at a rate per annum equal to the lesser
of (i) five percent (5%) in excess of the Interest Rate and (ii) the maximum
rate of interest, if any, which may be collected from Maker under applicable law
(the “Default
Interest Rate”), and such default
interest shall be due and payable on demand.
If any of
the provisions of the Mortgage or this Note shall require, or be deemed or
adjudicated to require, the payment, or permit the collection, of interest in
excess of the maximum amount permitted by law, Maker shall not be obligated to
pay, nor shall Payee be permitted to collect, interest in excess of the amount
permitted by law, and the provisions of this sentence shall supersede any
conflicting provisions contained herein or in the Mortgage.
If any
term or provision of this Note shall be held to be invalid, illegal or
unenforceable, the validity of the other terms and provisions hereof shall in no
way be affected thereby.
Section
6. Notwithstanding
anything in this Note or in the Loan Documents (as defined in the Mortgage) to
the contrary, but subject to the qualifications hereinbelow set forth, Payee
agrees that:
(a) Maker
shall be liable upon the indebtedness evidenced hereby and for the other obligations
arising under the Loan Documents to the full extent (but only to the extent) of
the security therefor, the same being all properties (whether real or personal),
rights, estates and interests now or at any time hereafter securing the payment
of this Note and/or the other obligations of Maker under the Loan Documents
(collectively, the “Security
Property”) and no attachment,
execution or other writ of process shall be sought, issued or levied upon any
assets, properties or funds of Maker other than the Security Property, except
with respect to the liability described below in this Section; and
A-4
(b) in
the event of a foreclosure of any liens, security titles, estates, assignments,
rights or security interests securing the payment of this Note and/or the other
obligations of Maker under the Loan Documents, no judgment for any deficiency
upon the indebtedness evidenced hereby shall be sought or obtained by Payee
against Maker (except as specified below), provided, however, that,
notwithstanding the foregoing provisions of this Section, Maker shall be fully
and personally liable and subject to legal action (i) for rent and other
payments received from tenants under leases of all or any portion of the
Security Property paid more than one (1) month in advance, (ii) for proceeds of
insurance policies or of condemnation or other taking not applied in accordance
with the Loan Documents, (iii) for rents, issues, profits, revenues of all or
any portion of the Security Property and tenant security deposits paid to or
held by or on behalf of Maker relating to the Security Property received or
applicable to a period after the occurrence of any Event of Default hereunder or
under the Loan Documents which are not either applied to the ordinary and
necessary expenses of owning and operating the Security Property or paid to
Payee, (iv) for all obligations and indemnities of Maker under the Loan
Documents relating to hazardous or toxic substances or compliance with
environmental laws and regulations to the full extent of any losses or damages
(including those resulting from diminution in value of any Security Property)
incurred by Payee as a result of the existence of such hazardous or toxic
substances or failure to comply with environmental laws or regulations, (v) for
fraud, material misrepresentation or failure to disclose a material fact by
Maker or any of its principals, officers, general partners or members, any
guarantor, any indemnitor or any agent, employee or other person authorized to
make statements, representations or disclosures on behalf of Maker, any
principal, officer, general partner or member of Maker, any guarantor or
indemnitor or any agent or employee of any such person, to the full extent of
any losses, damages and expenses of Payee on account thereof, and (vi) for
physical waste committed on the Security Property by, or damage to the Security
Property as a result of the intentional misconduct or gross negligence of, Maker
or any of its principals, officers, general partners or members, any guarantor,
any indemnitor, or any agent or employee of any such persons, or any removal of
the Security Property in violation of the terms of the Loan Documents, to the
full extent of the losses or damages incurred by Payee on account of such
occurrence. In addition, Maker hereby unconditionally and irrevocably
guarantees payment of the entire Indebtedness if any of the following occurs
after the date hereof: (i) a voluntary bankruptcy filing by Maker or
any general partner or managing member or majority shareholder of Maker; (ii) an
affiliate, officer, director or representative which controls Maker, directly or
indirectly, files, or joins in the filing of, an involuntary petition against
Maker or solicits or causes to be solicited petitioning creditors for any
involuntary petition against Maker from any person or entity; or (iii) the
Security Property becomes an asset in any voluntary bankruptcy proceeding or an
involuntary bankruptcy proceeding as described in (ii) above. Nothing
contained in this Section shall (1) be deemed to be a release or impairment of
the indebtedness evidenced by this Note or the other obligations of Maker under
the Loan Documents or the lien of the Loan Documents upon the Security Property,
(2) preclude Payee from foreclosing the Security Property in case of any default
or from enforcing any of the other rights of Payee except as stated in this
Section, or (3) limit or impair in any way whatsoever the Environmental
Indemnity Agreement (the “Environmental
Indemnity Agreement”), of even date herewith executed and delivered in
connection with the indebtedness evidenced by this Note or release, relieve,
reduce, waive or impair in any way whatsoever, any obligation of any party to
the Environmental Indemnity Agreement.
(c) Notwithstanding
anything to the contrary in this Note, the Mortgage or any of the other Loan
Documents, Payee shall not be deemed to have waived any right which Payee may
have under Section 506(a), 506(b), 1111(b) or any other provisions of the
U.S. Bankruptcy Code to file a claim for the full amount of the
indebtedness evidenced hereby or secured by the Mortgage or any of the other
Loan Documents or to require that all collateral shall continue to secure all of
the indebtedness owing to Payee in accordance with this Note, the Mortgage and
the other Loan Documents.
A-5
Section
7.
(a) MAKER,
TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (i) SUBMITS TO
PERSONAL JURISDICTION IN THE STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED
OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO
THIS NOTE, (ii) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT
IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE COUNTY IN
WHICH THE MORTGAGED PROPERTY IS LOCATED, (iii) SUBMITS TO THE JURISDICTION
OF SUCH COURTS AND (iv) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT IT
WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING
HEREIN SHALL AFFECT THE RIGHT OF PAYEE TO BRING ANY ACTION, SUIT OR PROCEEDING
IN ANY OTHER FORUM).
(b) EACH
OF MAKER AND PAYEE BY ITS ACCEPTANCE OF THIS NOTE, TO THE FULL EXTENT PERMITTED
BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE
ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN
ANY WAY RELATING TO THE INDEBTEDNESS EVIDENCED BY THIS NOTE OR ANY CONDUCT, ACT
OR OMISSION OF PAYEE OR MAKER, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS
AFFILIATED WITH PAYEE OR MAKER, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE. MAKER HEREBY CONSENTS AND AGREES TO
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS, IN CONNECTION WITH ANY
SUIT, ACTION OR PROCEEDING ARISING FROM OR RELATING TO THIS NOTE BY REGISTERED
OR CERTIFIED U.S. MAIL, POSTAGE PREPAID TO MAKER AT THE ADDRESS SET FORTH IN THE
MORTGAGE.
(c) This
Note shall be governed by and construed in accordance with, the laws of the
state in which the Mortgaged Property is located.
[THE
BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
A-6
IN
WITNESS WHEREOF, Maker has caused this Note to be executed as of the date set
forth above.
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MAKER:
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URBAN
DEVELOPMENT PARTNERS
(61), LLC, a Connecticut limited liability company
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By: Urban (61), Inc., a
Connecticut corporation
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By:
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Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title: President
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A-1