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BOS-BUS:410212.9
THIRD AMENDMENT TO NOTES
This THIRD AMENDMENT to Notes (this "Third
Amendment"), dated as of October 27, 1997 is by and
among (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee of GOVERNMENT
CENTER GARAGE REALTY TRUST, a Massachusetts nominee
trust (the "Maker") at the direction of GCGA Limited
Partnership, sole beneficiary of the Maker, and (ii)
▇▇▇▇ ▇▇▇▇▇▇ REALTY YIELD PLUS, L.P., a Delaware limited
partnership ("YP") and ▇▇▇▇ ▇▇▇▇▇▇ REALTY YIELD PLUS
II, L.P., a Delaware limited partnership ("YPII," and
collectively with YP, the "Holder"). Capitalized terms
used herein without definition shall have the meanings
assigned to such terms in the Amended Loan Agreement
(as defined below).
W I T N E S S E T H:
WHEREAS, (a) the Maker executed and delivered to
YP a certain Amended and Restated Construction
Loan/Office Loan Promissory Note (Yield Plus) dated as
of October 12, 1989 (the "Original YP Note") and (b)
the Maker and YP executed and delivered a certain First
Amendment to Amended and Restated Construction
Loan/Office Loan Promissory Note (Yield Plus) dated
June 22, 1990 and a Second Amendment to Amended and
Restated Construction Loan/Office Loan Promissory Note
(Yield Plus) dated September 20, 1993 (collectively,
the "YP Note Amendments"; the Original YP Note, as
amended by the YP Note Amendments, being hereinafter
referred to as the "YP Note"); and
WHEREAS, (a) the Maker executed and delivered to
YPII a certain Amended and Restated Construction
Loan/Office Loan Promissory Note (Yield Plus II) dated
as of October 12, 1989 (the "Original YPII Note") and
(b) the Maker and YPII executed and delivered a certain
First Amendment to Amended and Restated Construction
Loan/Office Loan Promissory Note (Yield Plus II) dated
June 22, 1990 and a Second Amendment to Amended and
Restated Construction Loan/Office Loan Promissory Note
(Yield Plus II) dated September 20, 1993 (collectively,
the "YPII Note Amendments"; the Original YPII Note, as
amended by the YPII Note Amendments, being hereinafter
referred to as the "YPII Note"; and the YP Note and the
YPII Note being hereinafter referred to collectively as
the "Notes"); and
WHEREAS, the Maker and the Holder are this day
executing and delivering a Supplement and Amendment to
Construction Loan Agreement (the "Supplement") which
supplements and amends the Construction Loan Agreement
dated as of April 26, 1989 among the Maker and the
Holder (the "Amended Loan Agreement") and a Third
Amendment to Additional Interest Agreement (the
"Additional Interest Amendment"), each of which
documents amends in certain respects the terms of the
Loans evidenced by the Notes; and
WHEREAS, the Maker and the Holder wish to modify
both of the Notes on the terms and conditions set forth
herein to reflect the provisions of the Supplement and
the Additional Interest Amendment;
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants herein contained, the Maker
and the Holder hereby agree as follows:
1. References to Notes in Loan Documents. All
references in the Notes to the Loan Documents shall be
deemed to refer to, collectively, the YP Note, the YPII
Note, the Amended Loan Agreement, the Additional
Interest Agreement, the Indemnity Agreement and each
Security Document, as each such document has been
amended or modified through the date hereof (including,
without limitation, hereby and by the Supplement and
the Additional Interest Amendment) and may be amended
or modified from time to time. All references in the
Notes to the Loan Agreement shall be deemed to refer to
the Loan Agreement, as such document has been amended
through the date hereof (including by the Supplement)
and may be further amended from time to time. All
references in the Notes to the Additional Interest
Agreement shall be deemed to refer to the Additional
Interest Agreement, as such document has been amended
through the date hereof (including by the Amended
Additional Interest Agreement) and may be further
amended from time to time.
2. Amendments to Notes. Each of the Maker and
the Holder hereby agree that each of the Notes shall be
amended as follows:
(a) The original principal amount of each
Note shall be increased from Fifty-Nine Million Two
Hundred Thousand Dollars ($59,200,000) to Sixty-Two
Million Two Hundred Thousand Dollars ($62,200,000) plus
accrued interest through September 30, 1997 equal to
$12,304,808 and all references to such amounts
contained in the Notes shall be amended accordingly.
(b) The fourth full paragraph on the second
page of each such Note shall be amended and restated in
its entirety to read as follows:
"Interest on the principal amount hereof
shall be payable at the following times and in the
following manner: The portion of the principal
amount hereof constituting Additional Loans shall
bear interest at a rate equal to twelve percent
(12%) per annum plus any additional interest due
to Holder under the Amended Additional Interest
Agreement. The portion of the principal amount
hereof not constituting Additional Loans shall
bear interest at a rate equal to ten percent (10%)
per annum plus any additional interest due to
Holder under the Amended Additional Interest
Agreement. Interest on the principal amount of
the Loans shall be payable monthly, in arrears, on
the first day of each month commencing with the
month immediately following the date hereof out of
the first funds available from the Property's cash
flow (after the Maker pays necessary operating
costs and its obligations with respect to the
First Mortgage Loan and makes escrow payments for
real estate taxes relating to the Property).
Notwithstanding any other provision contained
herein to the contrary, if at any time there is
insufficient cash flow from the Property to pay
all interest due hereunder, such unpaid interest
shall accrue and shall be added to the principal
amount of this Note and shall thereafter bear
interest at a rate of ten percent (10%) per annum.
Notwithstanding any of the foregoing to the
contrary, all interest accrued or payable on this
Notes shall be due and payable at maturity of this
Note, whether upon acceleration or otherwise."
3. Ratification and Confirmation. The Maker
hereby ratifies and confirms the YP Note and the YPII
Note, as amended hereby, in all respects and such
Notes, as modified, shall remain in full force and
effect in accordance with their terms. The Maker
hereby confirms its promise to pay all outstanding
amounts under the Notes, as modified hereby.
4. Non-Recourse Nature. Notwithstanding
anything contained herein or in any other Loan Document
to the contrary, none of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the
Bankruptcy Estate of ▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ nor
any partner of GCA or GCG shall have any liability
hereunder or under the Loan Documents, including
without limitation, any liability with respect to a
breach of the representations and warranties set forth
in paragraph 3 of the Supplement and Amendment to
Construction Loan Agreement dated the date hereof, the
Guaranties or the recourse liability after the End
Transaction (as defined in the Amended Additional
Interest Agreement). The foregoing provisions of this
paragraph shall not (y) prevent recourse to the Project
or (z) constitute a waiver, release or discharge of the
Maker's obligations evidenced by the Notes, but the
same shall continue until paid or discharged, and
provided further, that the foregoing provisions of this
paragraph shall not limit the right of any person to
name the Maker or any transferee of Maker's interest in
the Project received after the date hereof as a party
defendant in any action or suit for repossession of the
Project or in the exercise of any other remedy under
the Notes. The foregoing provisions of this Section 4
shall not be deemed or construed to reduce, limit,
restrict, terminate or in any other way modify or amend
the provisions of Article VII or VIII of the Settlement
Agreement (as defined in the Supplement).
5. Governing Law. This Third Amendment shall be
construed, enforced and governed by the laws of the
Commonwealth of Massachusetts.
6. Counterparts. This Third Amendment may be
executed in counterparts and as so executed shall
constitute but one Amendment.
IN WITNESS WHEREOF, the Maker and the Holder have
duly executed under seal this Amendment on the day and
year first above written.
BORROWER
GOVERNMENT CENTER GARAGE
REALTY
TRUST
By:
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
, Trustee
LENDER
▇▇▇▇ ▇▇▇▇▇▇ REALTY YIELD PLUS,
L.P.
By: ▇▇▇▇ ▇▇▇▇▇▇ Realty Yield
Plus,
Inc., general partner
By:
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
▇▇▇▇ ▇▇▇▇▇▇ REALTY YIELD PLUS
II,
L.P.
By: ▇▇▇▇ ▇▇▇▇▇▇ Realty Yield
Plus
II, Inc., general partner
By:
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: