EXHIBIT 10.51
AGREEMENT OF SPREADER, CONSOLIDATION
AND MODIFICATION OF
MORTGAGE AND SECURITY AGREEMENT
[Fee and Leasehold]
(with UCC Financing Statement for Fixture Filing)
METROPOLITAN 810 7TH AVE, LLC AND 100 WALL COMPANY LLC,
Mortgagor,
having an office at
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇--▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
to
MONUMENTAL LIFE INSURANCE COMPANY
a Maryland corporation,
Mortgagee,
having an address
c/o AEGON USA Realty Advisors, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
AGREEMENT OF SPREADER, CONSOLIDATION
AND MODIFICATION OF
MORTGAGE AND SECURITY AGREEMENT
[FEE AND LEASEHOLD]
(WITH UCC FINANCING STATEMENT FOR FIXTURE FILING)
THIS AGREEMENT OF SPREADER, CONSOLIDATION AND MODIFICATION OF MORTGAGE AND
SECURITY AGREEMENT is made and given as of the ________ day of July, 1999
between METROPOLITAN ▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇, a limited liability company organized
under Delaware law ("810"), and 100 Wall Company LLC, a limited liability
company organized under Delaware law ("100"), each of whose principal place of
business is ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇--▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(collectively, 810 and 100 are hereinafter referred to as the "Mortgagor"), and
MONUMENTAL LIFE INSURANCE COMPANY, a Maryland corporation having an office c/o
AEGON USA Realty Advisors, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ("Mortgagee"). The definitions of capitalized terms used in this
Mortgage may be found either in Section 2 below, or through the cross-references
provided in that Section.
RECITALS
WHEREAS, Mortgagor is the fee owner of the Real Property (as
hereinafter defined) and Mortgagee is, by assignment or otherwise, the
owner and holder of certain mortgages covering the fee estate of
Mortgagor in the Real Property, as more particularly described in
Exhibit A annexed hereto and incorporated herein by reference
(hereinafter referred to as the "Existing Mortgages") and of the notes,
bonds or other obligations secured thereby (hereinafter referred to as
the "Existing Notes");
WHEREAS, there is now owing on the Existing Notes and the Existing
Mortgages the unpaid principal sum of $125,000,000.00 and interest; and
WHEREAS, Mortgagor and Mortgagee have agreed in the manner hereinafter
set forth (a) to spread the Existing Mortgages and the respective liens
thereof over those portions of the Property (as hereinafter defined)
not already covered thereby, (b) to consolidate and coordinate the
respective liens of the Existing Mortgages, as spread, (c) to combine
and coordinate the Existing Notes and the principal sums evidenced
thereby, and (d) to modify and restate the time and manner of payment
and the terms and provisions of the Existing Notes and the Existing
Mortgages;
WHEREAS, it is a material inducement to Mortgagee that Mortgagor's
obligations to pay the Indebtedness (as herein defined) and to perform
and observe all of the provisions of the Loan Documents (as herein
defined) be secured by, among other things, the Existing Mortgages, as
spread, consolidated, modified and restated by this Mortgage.
WHEREAS, Mortgagor and Mortgagee intend these recitals to be a material
part of this Agreement.
NOW THEREFORE, in pursuance of said agreement and in consideration of
One Dollar ($1.00) and other valuable consideration the receipt and
sufficiency of which are hereby acknowledges, the parties hereto agree
as follows:
A. The Existing Mortgages and the respective liens thereof are hereby
spread over those portions of the Property (as hereinafter defined) not
already covered thereby, which Property includes all of the right,
title interest and estate of Mortgagor, now owned, or hereafter
acquired, in and to the following property, rights, interests and
estates (such property, rights, interests and estates being herein
before and hereinafter collectively referred to as the "Property"): all
of Mortgagor's existing and after acquired interests in the Real
Property, the Leases, the Rents, the Assigned Accounts, the Assigned
Rights, the Condemnation Proceeds, the Insurance Proceeds and the
Bankruptcy Rights.
B. The liens of the Existing Mortgages as so spread, are hereby
consolidated and coordinated so that together they shall hereafter
constitute in law but one mortgage, a single lien, covering the
Property and securing the repayment of the Indebtedness, any increases,
modifications, renewals or extensions of the Indebtedness, and any
substitutions for the Indebtedness, as well as the performance of
Mortgagor's other Obligations, and in consideration of the sum of ten
dollars ($10.00) and other valuable consideration, the receipt and
sufficiency of which are acknowledged, Mortgagor mortgages, grants,
bargains, sells, warrants, conveys, alienates, releases, assigns, sets
over and confirms to Mortgagee and to its successors and assigns
forever, with power of sale, all of Mortgagor's existing and after
acquired interests in the Real Property, the Leases, the Rents, the
Assigned Accounts, the Assigned Rights, the Condemnation Proceeds, the
Insurance Proceeds and the Bankruptcy Rights and the proceeds of all of
the foregoing, and grants to Mortgagee a security interest in the
Personal Property and the proceeds of all of the foregoing.
C. The Existing Mortgages, as so spread , consolidated and coordinated
and as modified, amended, restated, ratified and confirmed pursuant to
the provisions of this Agreement shall hereinafter be collectively
referred to as the "Mortgage".
Mortgagor shall promptly cause this Agreement to be filed, registered
or recorded in such manner and in such places as may be required by any
present or future law in order to publish notice and fully to protect
the lien
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of the Mortgage upon the Property. Mortgagor will pay all filing,
registration and recording fees, and all expenses incident to the
preparation, execution and acknowledgement of this Agreement, and all
Federal, state, county and municipal taxes, duties, imposts,
assessments and charges arising out of or in connection with the
filing, registration, recording, execution and delivery of this
Agreement and Mortgagor shall hold harmless and indemnify Mortgagee
against any liability incurred by reason of the imposition of any tax
on the issuance, making, filing, registration or recording of this
Agreement.
Mortgagor represents, warrants and covenants that there are no present
offsets, counterclaims or defenses against the Indebtedness, this
Agreement, the Mortgage or the Note and that Mortgagor (and the
undersigned representative of Mortgagor, if any) has full power,
authority and legal right to execute this Agreement and to keep and
observe all of the terms of this Agreement on Mortgagor's part to be
observed or performed.
This Agreement may not be modified, amended, changed or terminated
orally, but only by an agreement in writing signed by the party against
whom the enforcement of any modification, amendment, change or
termination is sought.
This Agreement shall be binding upon an inure to the benefit of
Mortgagor and Mortgagee and their respective successors and assigns.
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.
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.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to any choice of law
principles which, but for this provision, would require the application
of the law of another jurisdiction.
D. The terms, covenants and provisions of the Existing Mortgages as
herein modified, amended and restated are hereby ratified and confirmed
in all respects by Mortgagor and the terms, covenants and provisions of
the Existing Mortgages are modified, amended and restated so that
henceforth, the terms, covenants and provisions of this Agreement shall
supercede the terms, covenants and provisions of the Existing Mortgages
and the terms, covenants and provisions of the Existing Mortgages shall
read the same as the following numbered Articles:
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1. DEFINED TERMS
"Absolute Assignment of Leases and Rents" means the Loan Document
bearing this heading.
"Appurtenant Easements" means, to the extent of Mortgagor's existing
and future interests, the declarations, easements, covenants,
restrictions and agreements, if any, currently appurtenant to the Real
Property.
"Assigned Accounts" means all rights of Mortgagor to the present or
future payment of money, if the amounts to be paid relate to the use or
operation of the Real Property, from any construction on the Real
Property, or from the deposit of any such amounts with banks, savings
and loan institutions, brokerage firms or other financial institutions,
title insurance companies or agencies, or courts, including property
management accounts (whether held in the name of Mortgagor or of a
property manager), accounts receivable, reserves, deferred payments,
escrow funds, disputed Rents, refunds (including tax, insurance and
utility rebates, credits or refunds), ▇▇▇▇▇▇▇ money or sales contract
deposits, chattel paper, securities entitlements, instruments,
documents, notes, drafts and letters of credit (other than letters of
credit in favor of Mortgagee).
"Assigned Rights" means all of Mortgagor's rights (whether presently
existing or arising in the future) under all contracts, claims and
licenses that relate to the Real Property and may benefit its owner,
including air rights, mineral rights, water rights, claims against
third parties for damages to the Property, franchises, construction,
roof and equipment guarantees and warranties, building licenses and
permits, development permits, licenses and applications (whether or not
yet approved or issued) management contracts, service contracts, leases
of Fixtures or of Personal Property, and all of Mortgagor's right,
title and interest (whether presently existing or arising in the
future) in and to unearned insurance premiums, any greater estate in
the Real Property, trade names, property management files, trademarks,
trade styles, service marks, copyrights, accounting books and records,
site plans, surveys, blueprints, and construction drawings, plans and
specifications, and the work product of architects, environmental
consultants, property tax consultants, engineers, and any other third
party contractors whose services benefit the Real Property.
"Bankruptcy Rights" means all of Mortgagor's rights and remedies at any
time arising under or pursuant toss.365(h) of the U.S. Bankruptcy Code,
11 U.S.C.ss.365(h) including, without limitation, all of Mortgagor's
rights to remain in possession of the Property thereunder.
"Business Day" means any day when state and federal banks are open for
business in Cedar Rapids, Iowa.
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"Carveout Guaranty and Indemnity" means that certain "Guaranty and
Indemnity Agreement" entered into by the Carveout Obligors on the date
of this Mortgage.
"Carveout Obligations" means those obligations described in Section 19.
"Carveout Obligors" means Metropolitan Partners, LLC and Metropolitan
Operating Partnership, L.P.. Any other person who expressly assumes
liability for the Carveout Obligations in writing during the term of
the Loan shall become a "Carveout Obligor" for purposes of this
Mortgage.
"Carveouts" means those matters from which Carveout Obligations may
arise, which are described in Section 19.
"Code" means the Uniform Commercial Code, as in effect in New York.
"Condemnation Proceeds" means all money or other property that has
been, or is in the future, awarded or agreed to be paid or given in
connection with any taking by eminent domain of all or any part of the
Real Property (including a taking through the vacation of any street
dedication or through a change of grade of such a street), either
permanent or temporary, or in connection with any purchase in lieu of
such a taking, or as a part of any related settlement.
"Default" means any of the acts, omissions, or circumstances specified
in Section 8 below.
"Default Rate" means the rate of interest specified as the "Default
Rate" in the Note.
"Designated Amount" means, with respect to the Real Property described
on Exhibit B-1 $87,209,000.00, and with respect to the Real Property
described on Exhibit B-2, $37,791,000.00.
"Environmental Indemnity Agreement" means the Loan Document bearing
that heading.
"Environmental Laws" means all present and future laws, statutes,
ordinances, rules, regulations, orders, guidelines, rulings, decrees,
notices and determinations of any Governmental Authority pertaining to:
(A) the protection of health against environmental hazards; (B) the
protection of the environment from contamination by any substance which
may have any adverse health effect on humans, livestock, fish,
wildlife, or plant life, or which may disturb an ecosystem; (C)
underground storage tank regulation or removal; (D) wildlife
conservation; (E) protection or regulation of natural resources; (F)
soil conservation; (G) wetlands; (H) management, regulation and
disposal of solid and hazardous wastes; (I) radioactive materials; (J)
biologically hazardous materials; (K) indoor air quality; (L) the
manufacture, possession, presence, use, generation,
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storage, transportation, treatment, release, emission, discharge,
disposal, abatement, cleanup, removal, remediation or handling of any
Hazardous Substances. "Environmental Laws" include, without limitation,
the Comprehensive Environmental Response, Compensation, and Liability
Act, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C.ss.9601 et seq., the Resource Conservation and Recovery
Act, 42 U.S.C.ss.6901 et seq., the Federal Water Pollution Control Act,
as amended by the Clean Water Act, 33 U.S.C.ss.1251 et seq., the Clean
Air Act, 42 U.S.C.ss.7401 et seq., the Toxic Substances Control Act, 15
U.S.C.ss.2601 et seq., all similar state statutes and local ordinances,
and all regulations promulgated under any of those statutes, and all
administrative and judicial actions respecting such legislation, all as
amended from time to time.
"ESA" means the written environmental site assessment of the Real
Property obtained under the terms of the Commitment.
"Escrow Expenses" means those expenses in respect of real property
taxes, general and special assessments, and ground rent (including,
without limitation, rent payable pursuant to the Air Rights Lease
(after deduction of any rent payments due for the period from the
Mortgagor's subtenant of such Air Rights Lease pursuant to a
corresponding sublease thereof)) that Mortgagee elects to pay directly
from the Escrow Fund using monies accumulated through the collection of
Monthly Escrow Payments.
"Escrow Fund" means the accounting entry maintained on the books of
Mortgagee as funds available for the payment of Escrow Expenses under
the terms of this Mortgage.
"Financing Statements" means the Uniform Commercial Code financing
statements filed to perfect the security interests securing the
Indebtedness, as amended or extended from time to time.
"Fixtures" means, to the extent of Mortgagor's existing and future
interests, all materials, supplies, equipment, apparatus and other
items now or hereafter attached to or installed on the Land and
Improvements in a manner that causes them to become fixtures under the
law of New York, including all built-in or attached furniture or
appliances, elevators, escalators, heating, ventilating and air
conditioning system components, emergency electrical generators and
related fuel storage or delivery systems, septic system components,
storm windows, doors, electrical equipment, plumbing, water
conditioning, lighting, cleaning, snow removal, lawn, landscaping,
irrigation, security, incinerating, firefighting, sprinkler or other
fire safety equipment, bridge cranes or other installed materials
handling equipment, satellite dishes or other telecommunication
equipment, built-in video conferencing equipment, sound systems or
other audiovisual equipment, cable television distribution systems ,
and artwork and artistic or decorative installations at the Real
Property on the
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date hereof and any such items which are hereafter installed at the
Real Property in such manner as to constitute a fixture pursuant to
applicable law. Fixtures do not include trade fixtures, office
furniture and office equipment owned by tenants or such items which are
neither necessary nor desirable for the operation of the Land and
Improvements as income-producing commercial real estate.
"Governmental Authority " means any political entity with the legal
authority to impose any requirement on the Property, including the
governments of the United States, the State of New York, New York
County, the City of New York, and any other entity with jurisdiction to
decide, regulate, or affect the ownership, construction, use,
occupancy, possession, operation, maintenance, alteration, repair,
demolition or reconstruction of any portion or element of the Real
Property.
"Hazardous Substance" means, with respect to the Property or any part
thereof, any substance the release of or the exposure to which is
prohibited, limited or regulated by any Environmental Law, or which
poses a hazard to human health because of its toxicity, including,
without limitation: (A) any "oil," as defined by the Federal Water
Pollution Control Act and regulations promulgated thereunder (including
crude oil or any fraction of crude oil) and (B) any radioactive
substance. However, the term "Hazardous Substance" includes neither (A)
a substance used in the cleaning and maintenance of the Real Property,
if the quantity and manner of its use are customary, prudent, and do
not violate applicable law, nor (B) automotive motor oil in immaterial
quantities, if leaked from vehicles in the ordinary course of the
operation of the Real Property and cleaned up in accordance with
reasonable property management procedures and in a manner that violates
no applicable law.
"Impositions" means all real and personal property taxes; general or
special assessments; ground rent (including, without limitation, rent
payable pursuant to the Air Rights Leases); water, sewer, and vault
charges; common area charges; owners' association dues or fees; fees
for any easement, license or agreement maintained for the benefit of
the Property; and any and all other taxes, levies, user fees, claims,
charges and assessments whatsoever that at any time may be assessed,
levied or imposed on the Property or upon its ownership, use, occupancy
or enjoyment, and any related costs, interest or penalties. In
addition, "Impositions" include all documentary, stamp or recording
taxes or intangible personal property taxes that may become due in
connection with the Indebtedness, or that are imposed on any of the
Loan Documents.
"Improvements" means, to the extent of Mortgagor's existing and future
interest, all buildings and improvements of any kind erected or placed
on the Land now or in the future, including the Fixtures, together with
all appurtenant rights, privileges, easements, tenements,
hereditaments, titles, reversions, remainders and other interests.
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"Indebtedness" means all sums that are owed or become due pursuant to
the terms of the Note, this Mortgage, or any of the other Loan
Documents or any other writing by or between the Mortgagor and the
Mortgagee relating to the Loan, including scheduled principal payments,
scheduled interest payments, default interest, late charges, prepayment
premiums, accelerated or matured principal balances, advances,
collection costs (including reasonable attorneys' fees), reasonable
attorneys' fees and costs in enforcing or protecting the Note, the
Mortgage, or any of the other Loan Documents in any probate, bankruptcy
or other proceeding, receivership costs and all other financial
obligations of Mortgagor incurred in connection with the Loan
transaction and owed to Lender pursuant to the terms of the Loan
Documents or any other writing by or between the Mortgagor and
Mortgagee relating to the Loan, except for sums that are owed or become
due, or any particular person's liabilities or obligations, under any
Loan Document which expressly states that it or such person's
liabilities are unsecured by this Mortgage.
"Insurance Premiums" means all premiums or other charges required to
maintain in force any and all insurance policies that this Mortgage
requires that Mortgagor maintain.
"Insurance Proceeds" means all proceeds of all insurance now or
hereafter carried by or payable to Mortgagor with respect to the
Property, or the interruption of rents or income derived from the
Property, all unearned insurance premiums and all related claims or
demands.
"Key Lease" means any Lease of a portion of the Improvements that
covers more than 20% of the net leasable area of the Improvements or
generates more than 20% of the gross rental income of the Real
Property, together with any future "Key Leases" as defined in the
Absolute Assignment of Leases and Rents.
"Land" means those certain tracts of land located in New York City, New
York, which are described on the attached Exhibit B, together with all
appurtenances, including all Mortgagor's right, title and interest to
and in the air space above the Land and all alley, party wall,
drainage, sewer, mineral, water, oil and gas, vault and other rights,
estates, titles, interests, privileges, easements, tenements,
hereditaments, titles, royalties, reversions, remainders and other
interests.
"Leases" means all leases, subleases, licenses, concessions,
extensions, renewals and other agreements (whether written or oral, and
whether presently effective or made in the future) through which
Mortgagor grants any possessory interest in and to, or any right to
occupy or use, all or any part of the Real Property, and any related
guaranties.
"Legal Control" means the control exercised by a general partner of a
limited partnership, provided the general partner is not removable
except
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for cause, by the sole managing member of a limited liability company,
or by the holder of the majority of the common stock of a corporation.
Legal Requirements" means all laws, statutes, rules, regulations,
ordinances, judicial decisions, administrative decisions, building
permits, development permits, certificates of occupancy, or other
requirements of any Governmental Authority.
"Loan Documents" means all documents now or hereafter executed by
Borrower and/or its affiliates, or any Carveout Obligor or Obligor, or
any agent of Borrower, including any property manager, which: creates
or evidences the indebtedness and/or any sums due under the Note, the
Mortgage, the Absolute Assignment of Leases and Rents ("Assignment"),
the Agreement Regarding Letter of Credit or any indemnity or guaranty
relating to the Loan; secures the Note and/or any sums payable
thereunder or in respect of the Loan or the obligations of Borrower or
any Carveout Obligor or Obligor pursuant to the Loan, in whole or in
part; creates or evidences any guaranty or indemnification in favor of
Lender in connection with the Loan; creates or evidences any agreement
between Borrower, any Carveout Obligor or any Obligor and Lender
relating to the Loan or the Real Property or any portion thereof; all
other documents executed by any such party(ies) and delivered to Lender
pursuant to the terms of the Note, the Mortgage, the Assignment, the
Post Closing Agreement, or the Agreement Regarding Letter of Credit; or
any indemnity or guaranty relating to the Loan; and all modifications,
extensions, renewals or replacements of the foregoing.
"Monthly Escrow Payment" means the sum of the Monthly Imposition
Requirement and the Monthly Reserve Requirement.
"Monthly Imposition Requirement" means one-twelfth of the annual amount
that Mortgagee reasonably estimates (based on available historical data
and, if future Escrow Expenses are as yet undeterminable, on a 5%
annual inflation factor) will be required to permit the timely payment
by Mortgagee of those Escrow Expenses that Mortgagee elects, from time
to time, to pay from the Escrow Fund.
"Monthly Reserve Requirement" means the monthly payment amount which
Mortgagee estimates will, over the subsequent twelve months, result in
the accumulation of a surplus in the Escrow Fund equal to the Monthly
Imposition Requirement.
"Net Worth Requirement" means the least of (i) the aggregate net worth
of the Carveout Obligors at the time of origination of the Loan, (ii)
the principal balance of the Loan at the time of determination of the
Net Worth Requirement, and (iii) the aggregate net worth of the
Carveout Obligors immediately before the occurrence of the Default
which is the occasion for the determination of the Net Worth
Requirement.
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"Note" means the consolidated, amended and restated secured promissory
note made by Mortgagor today to evidence the Indebtedness in the
original principal amount of $125,000,000.00, together with all
extensions, renewals and modifications.
"Notice" means a notice given in accordance with the provisions of
Subsection 22.12.
"Obligations" means all of the obligations required to be performed
under the terms and conditions of any of the Loan Documents by any
Obligor, except for obligations that are expressly stated to be
unsecured under the terms of another Loan Document.
"Obligor" means Mortgagor, any Carveout Obligor, or any other natural
person, trust or business organization that is expressly liable under
the Loan Documents for the payment of any portion of the Indebtedness,
or the performance of any other obligation, under any circumstances. As
of the date hereof, there are no Obligors other than Mortgagor and the
Carveout Obligors.
"Permitted Encumbrances" means the encumbrances or other matters listed
on Exhibit C.
"Permitted Transfer" means a transfer specifically described in Section
12 as permitted.
"Personal Property" means, to the full extent of Mortgagor's existing
and future interests therein, (A) all materials, appliances, equipment
or items located at the Real Property now or in the future and that may
be incorporated in the Real Property through construction, attachment,
or installation, and that are used, or are capable of being used, in
the operation of the Real Property as commercial real estate, including
(i) appliances, equipment or items required under any lease to be
provided by Mortgagor to any tenant, (ii) materials or equipment for
use in the maintenance, alteration, landscaping or repair of the Real
Property, including snow removal, lawn, landscaping, irrigation,
security, incineration, and hazardous waste storage, monitoring,
testing, containment or abatement supplies and equipment, (iii)
electrical lights and fixtures (whether or not permanently wired),
backup generators and related fuel storage and delivery systems, (iv)
rugs, carpeting, office furnishings, decorations, window treatments and
equipment located in any on-site leasing office, located in any lobby,
hall or other common area, or used in connection with any "executive
suites" operation, (v) vehicles used to transport prospective tenants
or to maintain or operate the Real Property, (vi) components of
heating, ventilation and air conditioning systems and air quality
testing equipment, (vii) spare or detached parts for elevators,
escalators or other mechanical systems, (viii) all site or building
plans and specifications, construction records, and architectural or
engineering drawings relating to the Real Property, (ix)
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sewer or septic system components, (x) water ▇▇▇▇▇, whether for
purposes of water supply or groundwater testing or sampling, (xi)
components of plumbing and water conditioning systems, (xii)
firefighting, sprinkler or other fire safety equipment, (xiii) central
telephone switches, antennae, satellite dishes or other
telecommunication equipment, and (xiv) video conferencing equipment,
audio equipment and cable television distribution systems; and (B) the
Assigned Rights, the Assigned Accounts, the Condemnation Proceeds, and
the Insurance Proceeds, to the extent that they comprise personal
property subject to the Code.
"Property" means the Real Property, the Personal Property, the Leases,
the Rents, the Assigned Rights, the Assigned Accounts, the Condemnation
Proceeds and the Insurance Proceeds.
"Real Property" means the Land, the Improvements, the Fixtures, and all
of Mortgagor's right, title and interest to all appurtenant rights,
privileges, tenements, hereditaments, easements, or other interests
that run with the Land, including any Appurtenant Easements, benefits
of railroad sidings, drainage rights, sewer rights and rights of
ingress and egress, and all of Mortgagor's right, title and interest
pursuant to any ground leases or lease of air rights or development
rights relating to or benefiting the Land, the Improvements or the use,
maintenance or operation thereof, including, without limitation, those
certain leases identified on Exhibit F annexed hereto and made a part
hereof (such leases, as the same may be amended, renewed, extended,
supplemented and/or modified, each an "Air Rights Lease" and
collectively referred to herein as the "Air Rights Leases"), including
, without limitation, all any and all reversions or remainders in and
to the Mortgagor's interest in the premises so leased and all
extensions modifications, replacements, and renewals thereof, the
privileges and rights of Mortgagor under the Air Rights Leases and all
credits, deposits, and options (including any rights of first refusal
or options to purchase or renew) set forth in the Air Rights Leases.
"Rents" means all rents, income, receipts, issues and profits and other
benefits paid or payable for using, leasing, licensing, possessing,
operating from or in, residing in, selling, mining, extracting minerals
from, or otherwise enjoying the Real Property, whether presently
existing or arising in the future, to which Mortgagor may now or
hereafter become entitled or may demand or claim, including security
deposits, amounts drawn under letters of credit securing tenant
obligations, minimum rents, additional rents, parking revenues,
deficiency rents, termination payments, space contraction payments,
liquidated damages following default under a Lease, premiums payable by
tenants upon their exercise of cancellation privileges, proceeds from
lease guarantees, proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability caused by
destruction or damage to the Real Property, all rights and claims of
any kind which Mortgagor has or may in the future have against the
tenants under the Leases, lease guarantors, or any subtenants or other
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occupants of the Real Property, all proceeds of any sale of the Real
Property in violation of the Loan Documents, any future award granted
Mortgagor in any court proceeding involving any tenant in any
bankruptcy, insolvency, or reorganization proceedings in any state or
federal court, and any and all payments made by any tenant in lieu of
rent.
2. TITLE
Mortgagor represents to and covenants with Mortgagee and with its
successors and assigns that, at the point in time of the grant of the
lien created by this Mortgage, Mortgagor is well seized of good and
indefeasible estate to the Real Property, in fee simple absolute
(except with respect to the interest of Mortgagor pursuant to the Air
Rights Leases, in which Mortgagor has a leasehold interest), subject to
no lien or encumbrance except the Permitted Encumbrances. The Air
Rights Leases are in full force and effect, and, to the best knowledge
of Mortgagor, there are no defaults under the Air Rights Leases and no
event has occurred thereunder which, after the giving of notice, or
passage of time, or both, would constitute a default under the Air
Rights Leases. Mortgagor has good and merchantable title to the
Personal Property, and has the incontestable right to grant a first
priority security interest in the Personal Property, free of any rights
of lessors or of sellers under conditional sales contracts or other
financing arrangements. Mortgagor warrants this estate and title to
Mortgagee and to its successors and assigns forever, against all lawful
claims and demands of all persons. Mortgagor shall maintain mortgagee
title insurance from a solvent carrier, covering the Real Property in
an amount at least equal to the amount of the Indebtedness. This
Mortgage is and shall remain a valid and enforceable first lien on the
Real Property, and if the validity or enforceability of this first lien
is attacked or called into question, Mortgagor shall diligently and
continuously defend it through appropriate proceedings. Should it fail
to do so, Mortgagee may at Mortgagor's expense take all necessary and
proper action, including the engagement and compensation of legal
counsel, the prosecution or defense of litigation, and the compromise
or discharge of claims. Mortgagor shall defend, indemnify and hold
Mortgagee harmless in any suit or proceeding brought to challenge or
attack the validity, enforceability or priority of the lien granted by
this Mortgage. If a prior construction, mechanics' or materialmen's
lien on the Real Property arises by operation of statute during any
construction or repair of the Improvements, Mortgagor shall either
cause the lien to be discharged by paying when due any amounts owed to
such persons, or shall comply with Section 10 of this Mortgage.
3. REPRESENTATIONS AND WARRANTIES
Mortgagor (i) represents to Mortgagee, and to its successors and
assigns, that the following statements are true as of the date of this
Mortgage, and
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(ii) warrants and covenants to Mortgagee, and to its successors and
assigns, that the following statements shall remain true during the
term of the Loan:
3.1. FORMATION AND EXISTENCE
Each Mortgagor is a limited liability company duly formed and
validly existing under the laws of Delaware, is duly qualified
to do business in and is in good standing under, the laws of
New York, and has obtained all licenses and permits and filed
all statements of fictitious name and registrations necessary
for the lawful operation of its business.
3.2. POWER AND AUTHORITY
Mortgagor has full power and authority to carry on its
business as presently conducted, to own the Property, to
execute and deliver the Loan Documents, and to perform its
obligations under them.
3.3. DUE AUTHORIZATION
The Loan transaction and the performance of all of Mortgagor's
obligations under the Loan Documents have been duly authorized
by all requisite limited liability company action and each
individual executing any Loan Document on behalf of Mortgagor
has been duly authorized to do so.
3.4. NO DEFAULT OR VIOLATIONS
The execution and performance of Mortgagor's obligations under
the Loan Documents will not result in any breach of, or
constitute a default under, any contract, agreement, document
or other instrument to which Mortgagor is a party or by which
Mortgagor may be bound or affected, and do not and will not
violate or contravene any law to which Mortgagor is subject;
nor do any such other instruments impose any obligations which
prohibit or limit in any material respect the performance by
Mortgagor of its covenants and agreements hereunder or which
are in direct conflict with the covenants and agreements of
Mortgagor hereunder.
3.5. NO FURTHER APPROVALS OR ACTIONS REQUIRED
No approval by, authorization of, or filing with any federal,
state or municipal or other governmental commission, board or
agency or other governmental authority is necessary in
connection with the authorization, execution and delivery of
the Loan Documents by Mortgagor.
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3.6. DUE EXECUTION AND DELIVERY
Each of the Loan Documents to which Mortgagor is a party has
been duly executed and delivered on behalf of Mortgagor.
3.7. LEGAL, VALID, BINDING AND ENFORCEABLE
Each of the Loan Documents to which Mortgagor is a party
constitutes the legal, valid and binding obligation of
Mortgagor, enforceable against Mortgagor in accordance with
its terms, except to the extent that its enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally, or by equitable
principles of general application (whether considered in an
action at law or in equity).
3.8. ACCURATE FINANCIAL INFORMATION
All financial information furnished by Mortgagor to Mortgagee
in connection with the application for the Loan is true,
correct and complete in all material respects and does not
omit to state any fact or circumstance necessary to make the
statements in them not misleading, and there has been no
material adverse change in the financial condition of
Mortgagor since the date of such financial information.
3.9. COMPLIANCE WITH LEGAL REQUIREMENTS
All governmental approvals and licenses required for the
conduct of Mortgagor's business and for the maintenance and
operation of the Real Property in compliance with applicable
law are in full force and effect, and the Real Property is
currently being operated in compliance with the Legal
Requirements in all material respects.
3.10. CONTRACTS AND FRANCHISES
All contracts and franchises necessary for the conduct of the
Mortgagor's business and for the operation of the Real
Property in accordance with good commercial practice are in
force.
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3.11. NO CONDEMNATION PROCEEDING
The Mortgagor has no knowledge of any present, pending or
threatened condemnation proceeding or award affecting the Real
Property.
3.12. NO CASUALTY
No damage to the Real Property by any fire or other casualty
has occurred and remains unrepaired.
3.13. COMPLETE LOTS AND TAX PARCELS
The Land is comprised exclusively of tax parcels that are
entirely included within the Land (except, with respect to ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, that portion of the Real Property which is a part
of Lot 17), and, if the Land is subdivided, of subdivision
lots that are entirely included within the Land.
3.14. YEAR 2000 PREPARATION
The Mortgagor has taken commercially reasonable measures to
insure that any computer systems used in the operation of the
Real Property have been evaluated in order to determine
whether, during the year 2000, they will continue to function
properly, and has remediated any potential problems by
modifying such systems to update them in order to ensure that
they will function properly during the year 2000 and
thereafter.
3.15. COMMERCIAL PROPERTY
The Real Property is commercial, and the Loan has not been
made for personal, family or household purposes.
3.16. Reserved
3.17. STATUS OF CERTAIN TITLE MATTERS
To Mortgagor's actual knowledge, each of the Appurtenant
Easements, reciprocal easement agreements, operating
agreements, declarations, and restrictive covenants described
in Exhibit C to this Mortgage (a) is valid and in full force
and effect, (b) has not been amended or supplemented, except
by means of instruments listed in Exhibit C, (c) requires no
approval regarding the Improvements that has not been
obtained, (d) is free of defaults or alleged defaults, (e)
except as expressly provided therein, does not give rise to
any lien against the Real Property, or any right to assert a
valid notice or claim of such a lien, (f) does not provide for
any assessment against the Real Property that has not been
paid in full, and (g) has not
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been violated by the owner of the Real Property or by any
tenant of the Real Property.
3.18. IMPROVEMENTS NOT COMPRISED OF SIX OR FEWER RESIDENTIAL UNITS
Mortgagor represents that this Mortgage does not encumber
property principally improved or to be improved by one or more
structures containing in the aggregate not more than six
residential dwelling units.
4. COVENANTS
4.1. PAYMENT AND PERFORMANCE
Mortgagor shall pay the Indebtedness and perform all of its
other obligations under the Loan Documents, as and when the
Loan Documents require such payment and performance.
4.2. PAYMENT OF IMPOSITIONS
The Mortgagor shall pay the Impositions on or before the last
day on which they may be paid without penalty or interest, and
shall, within thirty days, furnish Mortgagee with a paid
receipt or a cancelled check as evidence of payment. If
Mortgagee does not receive such evidence, Mortgagee may secure
it directly. If it does so, Mortgagee will charge Mortgagor an
administrative fee of $250 per property for securing the
evidence of payment. The payment of this fee shall be a demand
obligation of the Mortgagor under the terms of this Mortgage.
The Mortgagor may meet the requirements of this Subsection by
remitting the Monthly Escrow Payments when due, by providing
Notice to Mortgagee of any new Imposition or increased
Imposition unknown to Mortgagee promptly after Mortgagor
obtains knowledge of same, and by paying to Mortgagee within
ten (10) Business Days after demand any amount required to
increase the Escrow Fund to an amount sufficient to permit
Mortgagee to pay all Impositions from the Escrow Fund on time.
If Mortgagor wishes to contest the validity or amount of an
Imposition, it may do so by complying with Section 10. If any
new Legal Requirement (other than a general tax on income or
on interest payments) taxes the Mortgage so that the yield on
the Indebtedness would be reduced, and Mortgagor may lawfully
pay the tax or reimburse Mortgagee for its payment, Mortgagor
shall do so.
4.3. MAINTENANCE OF THE REAL PROPERTY
Mortgagor shall not commit or permit any waste of the Real
Property as a physical or economic asset, and agrees to
maintain in good repair the Improvements, including
structures, roofs,
16
mechanical systems, parking lots or garages, and other
components of the Real Property that are necessary for the use
of the Real Property, or which Mortgagor as landlord under any
Lease is required to maintain for the benefit of any tenant.
In its performance of this obligation, Mortgagor shall
promptly and in a good and workmanlike manner repair or
restore, as required under Subsection 4.8, any elements of the
Improvements that are damaged or destroyed. The Mortgagor
shall also replace roofs, parking lots, mechanical systems,
and other elements of the Improvements requiring periodic
replacement. The Mortgagor shall carry out such replacements
no less frequently than would any commercially reasonable
owner. Except in connection with (x) the construction of
tenant improvements pursuant to Leases made in accordance with
the requirements of the Absolute Assignment of Leases and
Rents, and (y) other alterations or improvements undertaken by
Borrower in the ordinary course of business which (i) do not
adversely affect the structural integrity of the Improvements
or any portion thereof, (ii) are performed in accordance with
all applicable requirements of this Mortgage, including,
without limitation, compliance with applicable Legal
Requirements, and (iii) if made in space leaseable to tenants,
will not result in the space in question being rendered
unusable by general office, retail tenant or storage tenants,
as the case may be, (or with respect only to the garage space
at the property known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, by a garage
tenant), Notice of which shall be given to Mortgagee prior to
the commencement of such alteration or improvement, Mortgagor
shall not, without the prior written consent of Mortgagee,
demolish, reconfigure, or materially alter the Improvements,
but Mortgagee agrees that any request for its consent to such
an action shall be deemed given if Mortgagee declines to
respond within fifteen (15) Business Days to any written
request for such a consent, if the request is accompanied by
all materials reasonably required to permit Mortgagee to
analyze the proposed action.
4.4. USE OF THE REAL PROPERTY
The Mortgagor shall cause the Real Property to be used as a
commercial property for office, ground floor retail and, with
respect to 810, parking garage purposes, and for no other
purpose.
4.5. LEGAL REQUIREMENTS
The Mortgagor shall comply with all Legal Requirements
relating to the Real Property at all times.
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4.6. COVENANTS REGARDING CERTAIN TITLE MATTERS
Mortgagor shall promptly pay, perform and observe all of its
obligations under the Appurtenant Easements, reciprocal
easement agreements, operating agreements, declarations, and
restrictive covenants Exhibit C, shall not modify or consent
to the termination of any of them without the prior written
consent of the Mortgagee, shall promptly furnish Mortgagee
with copies of all notices of default under them, and shall
cause all covenants and conditions under them and benefiting
the Real Property to be fully performed and observed.
4.7. INDEPENDENCE OF THE REAL PROPERTY
Subject to the Air Rights Leases, the Mortgagor shall maintain
the independence of the Real Property from other land and
improvements not included within or located on the Land. In
fulfilling this covenant, Mortgagor shall neither take any
action which would make it necessary to own or control any
property other than the Real Property in order to meet the
obligations of the landlord under any Lease, or in order to
comply with the Legal Requirements, nor take any action which
would cause any land or improvements other than the Land and
the Improvements, and the land subject to the Air Rights
Leases, to rely upon the Land or the Improvements for those
purposes, nor impair the integrity of the Land as one or more
complete subdivided lots and tax parcels.
4.8. REBUILDING UPON CASUALTY AND REMEDIATION OF EFFECT OF
CONDEMNATION
If a casualty occurs, Mortgagor shall repair or rebuild the
Improvements. If any portion of the Real Property is taken by
power of eminent domain, Mortgagor shall remedy the effects of
the taking. Any such repair, reconstruction or remediation
shall be effected with the intended purpose of restoring
promptly the Real Property's value and potential to generate
income in proportion to the amount of the Indebtedness
remaining after any application of Insurance Proceeds or
Condemnation Proceeds to the Indebtedness, and Mortgagor shall
act in a commercially reasonable manner in performing such
repair, reconstruction or remediation, consistent with the
other applicable provisions of this Mortgage, in its efforts
to achieve such purpose.
4.9. PERFORMANCE OF LANDLORD OBLIGATIONS
Mortgagor shall perform its material obligations as landlord
under the Leases, and shall neither take any action, nor fail
to take any action, if the action or failure would be
inconsistent with the commercially reasonable management of
the Real Property for the purpose of enhancing its long-term
performance and value.
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Mortgagor shall not, without Mortgagee's written consent,
extend, modify, declare a default under, terminate, or enter
into any Lease of the Real Property, except in compliance with
the Absolute Assignment of Leases and Rents.
4.10. FINANCIAL REPORTS AND OPERATING STATEMENTS
(a) Maintenance of Books and Records
During the term of the Loan, Mortgagor shall maintain
complete and accurate accounting and operational
records, including copies of all Leases and other
written contracts relating to the Real Property,
copies of all tax statements, and evidence to support
the payment of all material property-related
expenses.
(b) Delivery of Financial and Property-Related
Information
Within 120 days of the end of each of its fiscal
years, or, so long as Mortgagor shall be required to
make filings with the U.S. Securities and Exchange
Commission ("SEC"), which individually or on an
aggregated basis with affiliated entities of
Mortgagor, substantially contain the following
financial information or any portion thereof, such
longer period which is permitted by the SEC to make
corresponding public filings pursuant to applicable
law up to, but not in excess of, an additional ninety
(90) days (and in no event beyond the date on which
such filings are actually made to the SEC), the
Mortgagor shall deliver to Mortgagee (A) copies of
the financial statements of the Mortgagor including
balance sheets and earnings statements, (B) a
complete and accurate operating statement for the
Real Property, and (C) a complete rent roll, all in
form reasonably satisfactory to the Mortgagee. The
rent roll must be certified by the Mortgagor to be
true and correct and must include each tenant's name,
premises, square footage, rent (including percentage
rent and the basis for its calculation), lease
expiration date, renewal options and related rental
rates, delinquencies, vacancies, and the existence of
any unsatisfied landlord obligations in respect of
tenant improvements or other leasing costs.
(c) Effect of Failure to Deliver Financial and Property
Reports
If no Default exists, and the Mortgagor fails to
provide the financial and property reports required
under this Section within 120 days of the close of
any fiscal year (or such longer period as is
permitted pursuant to Section 4.10(b)), the Mortgagee
will provide a Notice of this failure and a
thirty-day opportunity to cure. All monthly payments
of principal
19
and interest under the Note that become due after
this cure period has elapsed but before the reports
are received by the Mortgagee must be accompanied by
a fee of .000834 times the principal balance of the
Loan at the beginning of the previous month,
regardless of whether the Notice has asserted that
the failure constitutes a Default under this
Mortgage. This fee is to compensate the Mortgagee for
(A) the increased risk resulting from the Mortgagee's
inability to monitor and service the Loan using
up-to-date information and (B) the reduced value and
liquidity of the Loan as a financial asset.
(d) Certification of Information
The financial and operating statements provided under
this Subsection need not, as an initial matter be
certified by an independent certified public
accountant as having been prepared in accordance with
generally accepted accounting principles,
consistently applied, or, in the case of financial
statements prepared on a cash or income tax basis, or
of operating statements, as not materially misleading
based on an audit conducted in accordance with
generally accepted auditing standards. The Mortgagor
shall, however certify that such statements fairly
present in all material respects the financial
condition of the Mortgagor, and Mortgagee expressly
reserves the right to require such a certification by
an independent certified public accountant if a
Default exists or if Mortgagee has reason to believe
that any previously provided financial or operating
statement is misleading in any material respect.
4.11. ESTOPPEL STATEMENTS
(a) Upon request by the Mortgagee, Mortgagor shall,
within ten (10) Business Days of Notice of the
request, furnish to Mortgagee or to whom it may
direct, a written statement acknowledging the amount
of the Indebtedness and disclosing whether any
offsets or defenses exist against the Indebtedness.
Thereafter, Mortgagor shall be estopped from
asserting any other offsets or defenses alleged to
have arisen as of the date of the statement.
(b) Upon request by Mortgagor, Mortgagee shall, within
ten (10) Business Days of Notice of the request,
furnish to Mortgagor a written statement setting
forth the amount of the principal of the Loan
outstanding as of the date of such statement, the
date to which interest has been paid, and the amount,
if any, claimed to be unpaid upon the Mortgage for
principal and interest.
20
4.12. PROHIBITION ON CERTAIN DISTRIBUTIONS
If Default exists under Subsection 8.2 or under any of
Subparagraphs (b), (c), (d), (e) or (f) of Subsection 8.4,
Mortgagor shall not pay any dividend or make any partnership,
trust or other distribution, and shall not make any payment or
transfer any property in order to purchase, redeem or retire
any interest in its beneficial interests or ownership.
4.13. USE OF LOAN PROCEEDS
The Loan proceeds shall be used solely for commercial
purposes.
4.14. LIEN LAW COVENANT
Mortgagor shall receive the advances secured by this Mortgage
and shall hold the right to receive such advances as a trust
fund in accordance with the provisions of Section 13 of the
New York Lien Law.
4.15. PROHIBITION ON CUTOFF NOTICES
Mortgagor shall not issue any Notice to Mortgagee to the
effect that liens on the Real Property after the date of the
Notice will enjoy priority over the lien of the Mortgage.
5. INSURANCE REQUIREMENTS
At all times until the Indebtedness is paid in full, Mortgagor shall
maintain insurance coverage and administer insurance claims in
compliance with this Section.
5.1. REQUIRED COVERAGES
(a) All Risk/Open Perils Special Form Property
The Mortgagor shall maintain coverage of 100% of the
replacement cost of all insurable elements of the
Real Property and of all tangible Personal Property.
If a coinsurance clause is in effect, an agreed
amount endorsement is required. Blanket policies must
include limits by property location. Coverage shall
extend to the Real Property and to all tangible
Personal Property.
(b) Broad Form Boiler and Machinery
If any boilers are other machinery is located on or
about the Real Property, Mortgagor shall maintain
broad form boiler and machinery coverage, including a
form of business income coverage.
21
(c) Flood
If the Real Property is located in a special flood
hazard area according to the most current flood
insurance rate map issued by the Federal Emergency
Management Agency and if flood insurance is
available, Mortgagor shall maintain flood insurance
coverage of all insurable elements of Real Property
and of all tangible Personal Property.
(d) Business Interruption
The Mortgagor shall maintain a form of business
income coverage in the amount of 80% of one year's
business income from the Property. Blanket policies
must include limits by property location.
(e) Comprehensive/General Liability
The Mortgagor shall maintain comprehensive/general
liability coverage (which may be in the form of
umbrella/excess liability insurance) with a
$1,000,000 combined single limit per occurrence and a
minimum aggregate limit of $2,000,000.
(f) Liquor Liability
The Mortgagor shall maintain liquor liability
coverage, if applicable law may impose liability on
those selling, serving, or giving alcoholic beverages
to others and if such beverages will be sold, served
or given on the Real Property by Mortgagor.
(g) Elective Coverages
Mortgagee may require additional coverages
appropriate to the property type and site location.
Additional coverages may include earthquake, mine
subsidence, sinkhole, personal property, supplemental
liability, or coverages of other property-specific
risks.
5.2. HOW MORTGAGEE SHOULD BE NAMED
On all property policies and coverages (including coverage
against loss of business income), Mortgagee must be named as
"first mortgagee" under a standard mortgage clause. On all
liability policies and coverages, Mortgagee must be named as
an "additional insured." Mortgagee should be referred to
verbatim as follows: "[Name of Mortgagee] and its successors,
assigns, and affiliates; as their interest may appear; c/o
AEGON USA Realty Advisors, Inc.; Mortgage Loan Dept.; ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇., ▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇."
22
5.3. RATING
Each insurance carrier must be rated A, Class X, or better by
Best's Rating Service, without regard to its parent's or any
reinsurer's rating.
5.4. DEDUCTIBLE
The maximum deductible on all coverages and policies is
$25,000.
5.5. NOTICES, CHANGES AND RENEWALS
All policies must require the insurance carrier to give
Mortgagee a minimum of thirty (30) days notice in the event of
cancellation or non-renewal. Mortgagor shall report to
Mortgagee immediately any vacancy, change of title, tenant
occupancy or use, physical damage, additional improvements or
other factors affecting any insurance contract. An original or
certified copy of each policy is required upon renewal. If no
such copy is available, Mortgagee will accept a binder for a
period not to exceed 90 days. All binders, certificates of
insurance, and original or certified copies of policies must
name Mortgagee as a named insured, or as an additional
insured, must include the complete and accurate property
address and must bear the original signature of the issuing
insurance agent.
5.6. UNEARNED PREMIUMS
If this Mortgage is foreclosed, Mortgagee may at its
discretion cancel any of the insurance policies required under
this Section and apply any unearned premiums to the
Indebtedness.
5.7. FORCED PLACEMENT
If Mortgagor fails to comply with the requirements of this
Section, the Mortgagee may, at its discretion, procure any
required insurance. Any premiums paid for such insurance, or
the allocable portion of any premium paid by Mortgagee under a
blanket policy for such insurance, shall be a demand
obligation under this Mortgage, and any unearned premiums
under such insurance shall comprise Insurance Proceeds and
therefore a portion of the Property.
6. INSURANCE AND CONDEMNATION PROCEEDS
6.1. PROVISIONS OF APPROVED KEY LEASE TO GOVERN
The Mortgagee agrees to permit the use of Insurance Proceeds
and Condemnation Proceeds consistently with the terms of the
Key
23
Lease, if Mortgagor is obligated under the Key Lease to
rebuild the Improvements or to remedy the effect of a
condemnation, if Mortgagee may hold the Insurance Proceeds or
Condemnation Proceeds and condition their disbursement as
described in Section 6.4, and if the tenant under the related
Key Lease confirms to the Mortgagee in writing that it is
committed to pay full rent following the completion of the
reconstruction or remediation. The remaining provisions of
this Section shall apply to the extent that they are
consistent with the terms of the approved Key Lease.
6.2. ADJUSTMENT OF INSURANCE CLAIMS AND COMPROMISE OF CONDEMNATION
AWARDS
The Mortgagor may settle any insurance claim or condemnation
proceeding if the effect of the casualty or the condemnation
may be remediated for $1,000,000 or less (unless the Mortgagor
exercises its option to obtain a release of Parcel 2, as
hereinafter provided, in which event, thereafter, $500,000.00
or less). If a greater sum is required, the Mortgagor may not
settle any such claim or proceeding without the advance
written consent of the Mortgagee and, provided there is then
no Default hereunder or under the other Loan Documents, such
consent shall not be unreasonably withheld, conditioned or
delayed. If a Default exists, the Mortgagor may not settle any
insurance claim or condemnation proceeding without the advance
written consent of the Mortgagee.
6.3. DIRECT PAYMENT TO THE MORTGAGEE OF PROCEEDS
If the Insurance Proceeds received in connection
with a casualty or the Condemnation Proceeds received in
respect of a condemnation exceed $1,000,000 (unless the
Mortgagor exercises its option to obtain a release of Parcel
2, as hereinafter provided, in which event, thereafter, in
excess of $500,000.00), or if there is a Default, then such
proceeds shall be paid directly to the Mortgagee to be applied
in accordance with the provisions of Section 6.4. The
Mortgagee shall have the right to endorse instruments that
evidence proceeds which it is entitled to receive directly.
6.4. AVAILABILITY TO THE MORTGAGOR OF PROCEEDS
The Mortgagor shall have the right to use the Insurance
Proceeds or the Condemnation Proceeds to rebuild the
Improvements following a casualty, or to remedy the effect on
the Real Property of any condemnation, if the amount received
is less than five percent (5%) of the principal balance of the
Note, provided (a) no condition of Default then exists, (b) no
nonmonetary default shall have occurred and, following Notice,
remained uncured beyond
24
the applicable cure period and (c) the proceeds received by
the Mortgagee, together with any additional funds deposited
with the Mortgagee by the Mortgagor, are then sufficient, in
the Mortgagee's reasonable discretion, to restore the
Improvements to their condition before the casualty, or to
remedy the effect on the Real Property of the condemnation.
The Mortgagee may condition disbursements on approval of plans
and specifications, a minimum disbursement requirement of
disbursements not more than once in each calendar month,
submittal of certificates of occupancy and other appropriate
evidence of completion, updating of the Mortgagee's mortgagee
title insurance coverage to insure the absence of
construction, mechanics' or materialmen's liens, disbursement
on a percentage of completion basis with a ten percent
holdback on all disbursements pending final completion (on a
trade by trade basis), and other customary safeguards for
construction lenders. All transactional expenses shall be paid
by the Mortgagor. If the amount received in respect of a
casualty or condemnation equals or exceeds five percent (5%)
of the principal balance of the Note, then such proceeds may,
at the Mortgagor's option, be used to rebuild or to remedy
subject to all of the provisions and procedures described
above, but only if the Loan-to-Value ratio of the Property on
completion will be 65% or less, as determined by Mortgagee, in
its discretion. If Mortgagee's determination of the
Loan-to-Value ratio of the Property on completion is greater
than 65%, and Mortgagor disagrees with such determination,
Mortgagor may, by Notice to Mortgagee, require that the
procedure for the appraisal of the Real Property at the time
of origination be repeated in order to arrive at a binding
determination of market value. The independent fee appraisal
shall be at the Mortgagor's expense, and Mortgagor shall pay
to the Mortgagee an administrative fee of $2,500 in connection
with its review. The Mortgagee may require that the Mortgagor
deposit $10,000 with the Mortgagee as security for these
expenses or may pay the fee appraiser's and administrative
fees from the proceeds at its sole discretion. If necessary,
the Mortgagor shall make a prepayment of the Loan, without
premium, sufficient to achieve this Loan-to-Value ratio.
Unless the Mortgagor has the right to use the Insurance
Proceeds or the Condemnation Proceeds under the foregoing
paragraph, the Mortgagee may, in its sole and absolute
discretion, either apply them to the Loan balance or disburse
them for the purposes of repair and reconstruction, or to
remedy the effects of the condemnation. No prepayment premium
will be charged on amounts applied to reduce the principal
balance of the Loan.
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7. ESCROW FUND
The Mortgagor shall pay the Monthly Escrow Payment on the
first day of every month, commencing with the month in which
the first regular payment of principal and interest is due.
Any Monthly Escrow Payment received after the tenth day of the
month in which it is due shall be subject to a late charge of
five percent (5%) , which shall not be applied to the Escrow
Fund. Mortgagee shall hold Monthly Escrow Payments in an
interest-bearing fund from which Mortgagee will pay on a
timely basis those Escrow Expenses that Mortgagee has
anticipated will become payable on a regular basis during the
Loan's term, and on which Mortgagee has based its
determination of the Monthly Imposition Requirement and the
Monthly Reserve Requirement. The Escrow Fund will be
maintained as an accounting entry in Mortgagee's general
account, where it may be commingled with Mortgagee's other
funds. The Escrow Fund shall bear interest, which shall become
part of the Escrow Fund. The interest rate will be the
passbook rate of interest at a bank in Cedar Rapids, Iowa at
the end of the interest accrual period. Interest will be
compounded Quarterly based on the average monthly balance.
Mortgagee may reanalyze the projected Escrow Expenses from
time to time and shall advise Mortgagor of any change in the
amount of the Monthly Escrow Payment based upon any reasonably
anticipated change to the Escrow Expenses. Upon the
foreclosure of this Mortgage, the delivery of a deed in lieu
of foreclosure, or the payoff of the Loan, the Mortgagee shall
apply amounts in the Escrow Fund, net of accrued Escrow
Expenses, to the Indebtedness. Mortgagee shall remit any
amounts in excess of the Indebtedness to Mortgagor.
8. DEFAULT
8.1. EXISTENCE OF DEFAULT
A Default shall exist immediately upon the occurrence of any
of the acts, omissions or circumstances specified in
Subsection 8.2 or in Subsection 8.4. Upon the occurrence of
any of the acts, omissions or circumstances specified in
Subsection 8.3, Mortgagee may deliver written Notice to
Mortgagor of the existence of such an act, omission or
circumstance, and that such an act, omission or circumstance
shall constitute a Default under the Loan Documents unless the
Mortgagor promptly initiates an effort to cure the potential
Default, pursues the cure diligently and continuously, and
succeeds in effecting the cure within 120 days of its receipt
of Notice. An additional period of 120 days is afforded in
cases where construction or repair is needed to cure the
potential default, and the cure cannot be completed within the
first 120-day cure period. During the cure period, the
Mortgagor has the obligation to
26
provide on demand satisfactory documentation of its effort to
cure, and, upon completion, evidence that the cure has been
achieved.
8.2. MONETARY DEFAULTS
A monetary default shall exist upon any of the following:
(a) Monthly Principal and Interest Payments
The Mortgagor's failure to pay, or to cause to be
paid, any regular monthly payment of principal and
interest under the Note or any required Monthly
Escrow Payment on or before the tenth day of the
month in which it is due.
(b) Matured Indebtedness
The Mortgagor's failure to pay, or to cause to be
paid, the Indebtedness when the Loan matures by
acceleration under Section 14, because of a transfer
or encumbrance under Section 11, or by lapse of time.
(c) Demand Obligations
The Mortgagor`s failure to pay, or to cause to be
paid, within three (3) Business Days of Mortgagee's
demand (such demand and time period being in addition
to any other demand or period for payment, if any,
expressly provided for elsewhere in this Mortgage),
any other amount due under this Mortgage or any of
the other Loan Documents.
8.3. CURABLE NONMONETARY DEFAULT
A curable nonmonetary default shall exist upon any of the
following (and such events shall not be a Default unless
Mortgagor shall fail to cure the same within the applicable
notice and grace period set forth in Section 8.1):
(a) Entry of a Material Judgment
The entry of any judgment against any Mortgagor or
any other Obligor, if the judgment may materially and
adversely affect the value, use or operation of the
Real Property of such Mortgagor.
(b) Failure of Warranty
Any representation made in Section 3 or warranted in
any other Loan Document shall become untrue or
misleading in any material respect (except with
respect to Sections 3.11 or 3.12, provided Mortgagor
shall promptly give notice of the occurrence of same
to Mortgagee and, with respect to
27
Section 3.17, to the extent within Mortgagor's
control to
prevent or avoid such occurrence).
(c) Other Defaults
The Mortgagor's failure to observe any promise or
covenant made in this Mortgage, if the failure is not
described in Subsection 8.2, in Subsection 8.4, or
elsewhere in this Subsection 8.3. Default under other
Loan Documents, or the existence of a "Default" as
defined in any Loan Document, unless the "Default" is
monetary in nature or is expressly described
elsewhere in this Mortgage.
(d) Mortgagor shall default under any Air Rights Lease
and such default shall not be cured within the
applicable time period set forth in Section 8.1 or,
notwithstanding the provisions of Section 8.1 to the
contrary, if the Air Rights Lease shall provide a
shorter notice and/or cure period, if such default
shall not be cured at least five (5) Business Days
prior to the expiration of any such notice and/or
cure period provided thereunder.
8.4. INCURABLE NONMONETARY DEFAULT
An incurable nonmonetary default shall exist upon any of the
following:
(a) Material Untruth or Misrepresentation
Mortgagee's discovery that any representation made by
any Mortgagor or by any other Obligor in any Loan
Document in connection with the Loan was untrue or
misleading in any material respect at the time it was
made.
(b) Due on Sale or Encumbrance
The occurrence of any sale, conveyance, transfer or
vesting that would result in the Loan becoming
immediately due and payable at Mortgagee's option
under Section 11.
(c) Voluntary Bankruptcy Filing
The filing by any Mortgagor of a petition in
bankruptcy or for relief from creditors under any
present or future law that affords general protection
from creditors.
(d) Involuntary Bankruptcy or Similar Filing
Any Mortgagor or any other Obligor (other than a
Carveout Obligor) becomes the subject of any petition
or action seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts
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under any law relating to bankruptcy, insolvency or
reorganization or relief, or that may result in a
composition of its debts, provide for the marshaling
of any Mortgagor's or such other Obligor's (other
than a Carveout Obligor's) assets for the
satisfaction of any Mortgagor's or such other
Obligor's (other than a Carveout Obligor's) debts, or
result in the judicially ordered sale of any
Mortgagor's or such other Obligor's (other than a
Carveout Obligor's) assets for the purpose of
satisfying its obligations to creditors, unless a
motion for the dismissal of the petition or other
action is filed and results in its dismissal within
ninety days of the filing of the petition or other
action.
(e) Insolvency
The failure of any Mortgagor or of any other Obligor
(other than a Carveout Obligor) generally to pay its
debts as they become due, its admission in writing to
an inability so to pay its debts, the making by any
Mortgagor or of other Obligor (other than a Carveout
Obligor) of a general assignment for the benefit of
creditors, or a judicial determination that any
Mortgagor or any other Obligor (other than a Carveout
Obligor) is insolvent.
(f) Receivership
The appointment of a receiver or trustee to take
possession of any of the assets of any Mortgagor.
(g) Levy or Attachment
The taking or seizure of any material portion of the
Property under levy of execution or attachment.
(h) Lien
The filing against any of the Real Property of any
lien or claim of lien for the performance of work or
the supply of materials, or the filing of any
federal, state or local tax lien against any
Mortgagor or any other Obligor, or against any of the
Real Property, unless the Mortgagor promptly complies
with Section 10 of this Mortgage.
(i) Death, Dissolution or Liquidation
The dissolution or liquidation of any Mortgagor, or
the cessation of its legal existence (unless
resulting in a Permitted Transfer).
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(j) Events Affecting Carveout Obligors
The filing by any Carveout Obligor of a petition in
bankruptcy or for relief from creditors under any
present or future law that affords general protection
from creditors; the filing by any other person of an
involuntary petition in bankruptcy against any
Carveout Obligor or the filing of any other action
that may result in a composition of debts, provide
for the marshaling of assets for the satisfaction of
such Carveout Obligor's debts, or result in the
judicially ordered sale of assets for the purpose of
satisfying obligations to creditors (unless a motion
for the dismissal of the petition or other action is
filed and results in its dismissal within ninety days
of the filing of the petition or other action); the
dissolution or liquidation of any Carveout Obligor
that is not a natural person, or the cessation of its
legal existence; or the death of any Carveout Obligor
who is a natural person(unless the event described in
this Paragraph (j) results in a Permitted Transfer),
and unless, following any such event, any remaining
Carveout Obligor or Obligors have the direct or
indirect power to exercise management control over
the Real Property and have an aggregate net worth at
least equal to the Net Worth Requirement, or unless
any remaining Carveout Obligor (or the executor of
the estate of any deceased Carveout Obligor)
diligently and continuously pursues the replacement
of the subject Carveout Obligor, and succeeds, within
180 days of such an event, in causing another person
to assume the obligations of the subject Carveout
Obligor under the Carveout Guaranty and Indemnity,
and the Environmental Indemnity Agreement, so that
the Carveout Obligors collectively meet the Net Worth
Requirement and have the direct or indirect power to
exercise management control over the Real Property.
Nothing contained herein shall be deemed or construed
to impose the requirement that the Carveout Obligors
maintain a specified net worth during the term of the
Loan, provided, however, that the Carveout Obligors
shall be prohibited from taking voluntary actions not
in the ordinary course of business which would reduce
its net worth to less than the then outstanding
principal balance of the Loan if a Default exists or
during any time when the loan-to-value ratio of the
Loan, if calculated using the value of the Real
Property, would exceed 75%.
(k) Air Rights Leases Default
There shall be a termination, surrender, modification
or amendment of any Air Rights Lease without the
prior written consent of Mortgagee.
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9. RIGHT TO CURE
Upon Default or upon the failure of Mortgagor, following a Notice given
under Subsection 8.3, to diligently pursue the cure of any act,
omission or circumstance that may cause Default, Mortgagee shall have
the right to cure the Default or the act, omission or circumstance. The
expenses of doing so shall be part of the Indebtedness, and Mortgagor
shall pay them to Mortgagee on demand.
10. CONTEST RIGHTS
Mortgagormay secure the right to contest Impositions and construction,
mechanics' or materialmen's liens, through appropriate proceedings
conducted in good faith, by either (A) depositing with Mortgagee an
amount (or a letter of credit from a financial institution having not
less than an A rating from Standard & Poor's or one or more other
nationally recognized rating agencies, and otherwise reasonably
acceptable to Mortgagee) equal to 110% of the amount of the Imposition
or the lien, or (B) obtaining and maintaining in effect a bond issued
by a surety reasonably acceptable to Mortgagee, in an amount equal to
the greater of (i) the amount of a required deposit under clause (A)
above and (ii) the amount required by the surety or by the court in
order to obtain a court order staying the foreclosure of the lien
pending resolution of the dispute, and releasing the lien of record.
The proceeds of such a bond must be payable directly to Mortgagee. The
surety issuing such a bond shall be acceptable to Mortgagee in its
sole, but reasonable, discretion. After such a deposit is made or bond
issued, the Mortgagor shall promptly commence the contest of the lien
and continuously pursue that contest in good faith and with reasonable
diligence. If the contest of the related Imposition or lien is
unsuccessful, any deposits or bond proceeds shall be used to pay the
Imposition or to satisfy the obligation from which the lien has arisen.
Any surplus shall be refunded to Mortgagor.
11. DUE ON TRANSFER OR ENCUMBRANCE
Upon the sale of any portion of the Real Property or any other
conveyance, transfer or vesting of any direct or indirect interest in
Mortgagor or the Property, including (i) the direct or indirect
transfer of, or the granting of a security interest in, the ownership
of Mortgagor, (ii) any encumbrance (other than a Permitted Encumbrance)
of the Real Property (unless the Mortgagor contests the encumbrance in
compliance with Section 11) and (iii) the granting of any security
interest in the Property, the Indebtedness shall, at Mortgagee's
option, become immediately due and
31
payable without Notice, unless the sale, conveyance, transfer or
vesting is a Permitted Transfer.
12. DUE ON SALE EXCEPTIONS
12.1. PERMITTED TRANSFERS
The following are "Permitted Transfers":
(a) A single transfer of the Property to a purchaser of
Reckson Associates ("Reckson") or to any entity to
which substantially all of the assets of Reckson are
transferred or as a result of a change in control
through the merger or consolidation of Reckson into
another entity, if (i) the purchaser or other
transferee is a corporation whose stock is publicly
traded with a minimum stockholder's equity of
$500,000,000, (ii) the Loan is not in Default, and
(iii) the Mortgagee, applying commercially reasonable
standards, approves of the proposed transferee's
ownership structure, financial strength and
management capability, and of the management
capability of the transferee's principals The
following additional conditions shall apply to a
Permitted Transfer under this subparagraph (a).
(i) If title to the Real Property is
transferred in connection with the subject
transaction, the transferee must assume all
liabilities and obligations under the terms
of the Loan Documents.
(ii) The Carveout Obligor shall be released
from accrued and/or future Carveout
Obligations, provided accrued and/or future
Carveout Obligations are expressly assumed
by a replacement obligor satisfactory to the
Mortgagee. The Mortgagee shall not withhold
its consent to any such replacement obligor
having a net worth equal to the greater of
(i) the net worth of the Carveout Obligor at
the time of the transfer and (ii) the
then-current principal balance of the Loan.
Those having obligations under the Loan
Documents before the transfer will not be
released from obligations arising after the
date of the transfer, except at Mortgagee's
sole discretion.
(iii) If title to the Real Property is
transferred in connection with the subject
transaction, such a transfer will be
conditioned on the payment of an assumption
fee of one-half of one percent (1/2%) of the
then-outstanding principal balance of the
Loan.
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If no Real Property is so transferred, an
administrative fee of $50,000 shall be
charged in connection with the Mortgagee's
review and underwriting of the request.
(b) A single transfer of the Real Property, either (i) to
a purchaser of Metropolitan Operating Partnership,
L.P., a Delaware limited partnership ("Metropolitan")
or to any entity to which substantially all of the
assets of Metropolitan are transferred or as a result
of a change in control through the merger or
consolidation of Metropolitan into another entity, if
the purchaser or transferee is a corporation whose
stock is publicly traded with a minimum stockholder's
equity of $500,000,000, or (ii) to a purchaser of the
Real Property, if the Loan is not in Default, and if
the Mortgagee, applying commercially reasonable
standards, approves of the proposed transferee's
ownership structure, financial strength and
management capability, and of the management
capability of the transferee's principals. The
following additional conditions shall apply to a
Permitted Transfer under this subparagraph (b):
(i) If title to the Real Property is
transferred in connection with the subject
transaction, the transferee must assume all
liabilities and obligations under the terms
of the Loan Documents.
(ii) The Carveout Obligor shall be released
from accrued and/or future Carveout
Obligations, provided accrued and/or future
Carveout Obligations are expressly assumed
by a replacement obligor satisfactory to the
Mortgagee. The Mortgagee shall not withhold
its consent to any such replacement obligor
having a net worth equal to the greater of
(i) the net worth of the Carveout Obligor at
the time of the transfer and (ii) the
then-current principal balance of the Loan.
(iii) Any transfer permitted under this
Paragraph (b) will be conditioned on the
payment of an assumption fee one-half of one
percent (1/2%) of the then-outstanding
principal balance of the Loan. If the
subject transfer does not occur, an
administrative fee of $50,000 shall be
charged in connection with the Mortgagee's
review and underwriting of the request.
(c) The transfer of any direct or indirect interest in
the Mortgagor, subject to the condition that, after
such transfer, Reckson (or any entity which directly
or indirectly succeeds
33
to the interests of Reckson by merger or
consolidation or sale of all or substantially all of
its assets) shall, directly or indirectly, control
the managing member of the Mortgagor by the ownership
of voting securities, or shall by contract or
otherwise hold the right to the present control
(which right shall not be capable being withdrawn
without Reckson's consent, except for cause, but
which control may exist even though others may have
approval rights in respect of major decisions) of
such managing member, and shall retain a beneficial
interest in the Mortgagor of not less than 30%.
12.2. TRANSACTION COSTS
The Mortgagor shall pay all out-of-pocket expenses incurred by
the Mortgagee in the review and processing of a Permitted
Transfer.
12.3. RELEASE AND SUBSTITUTION OF COLLATERAL
If the Mortgagor desires to secure the release of the Real
Property from the lien of this Mortgage in an arm's length
transaction to an unaffiliated purchaser, it may do so
provided that the Loan is not in default and another
commercial real property satisfactory to the Mortgagee is
substituted for the released Real Property as collateral
encumbered hereby. The Mortgagee may consider any factor
reasonably related to the quality of the proposed substitute
property as collateral, including, without limitation,
property type, market value, cash flow, projected capital
requirements, overall tenant quality, location, condition of
title, quality and expected life of the improvements, and the
environmental condition of the property, so that Mortgagee's
overall credit package after the substitution is no less
desirable to Mortgagee, in its sole and absolute discretion,
than it was before the substitution. The closing of the
substitution of the collateral shall be carried out in
accordance with the Mortgagee's then-current mortgage loan
origination practice, however the Mortgagee shall collect, as
compensation for its underwriting and closing efforts, a fee
of one half of one percent (1/2%) of the principal balance of
the Note (if the substituted collateral consists of a single
real property) or of one percent (1%) of the principal balance
of the Note (if the substituted collateral consists of two,
three, or four real properties). The substitute collateral may
not be comprised of more than four real properties. The
Mortgagor shall pay all of the Mortgagee's reasonable
out-of-pocket expenses in connection with such release and
substitution.
13. NOTICE OF ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
Under the Absolute Assignment of Leases and Rents, Mortgagor
has assigned to Mortgagee, and to its successors and assigns,
all of
34
Mortgagor's right and title to, and interest in, the Leases,
including all rights under the Leases and all benefits to be
derived from them. The rights assigned include all authority
of Mortgagor to modify or terminate Leases, or to exercise any
remedies, and the benefits assigned include all Rents. This
assignment is present and absolute, but under the terms of the
Absolute Assignment of Leases and Rents, Mortgagee has granted
the Mortgagor a conditional license to collect and use the
Rents, and to exercise the rights assigned, in a manner
consistent with the Obligations. Mortgagee may, however,
terminate the license by written Notice upon either (i)
Default or (ii) the occupancy of more than one-half of the
leasable space in the Improvements by a single tenant that is
the subject of a petition under the U.S. Bankruptcy Code (the
"Bankruptcy Code"), that has threatened to file such a
petition, or whose insolvency is imminent. If the license to
collect Rents is terminated under clause (ii) and there is no
Default, then the Mortgagee shall have the right to collect
the Rents directly, shall apply any Rents received to that
portion of the Indebtedness then due and payable, and shall
promptly remit any excess amount to Mortgagor. Mortgagor
agrees to collect in trust for Mortgagee any Rents remitted to
Mortgagor after the expiration or termination of Mortgagor's
license to collect the Rents. Mortgagor further agrees to pay
any such Rents to Mortgagee promptly after they are received.
In connection with the above-described Assignment, Mortgagee
shall have all the rights against lessees of the Real Property
as set forth in Section 291(f) of the Real Property Law of New
York.
Pursuant to the Absolute Assignment of Rents, and subject to
the terms and conditions set forth therein, Mortgagor may
request, and Mortgagee has agreed to grant, subordination,
non-disturbance and attornment agreements with respect to
certain Leases.
14. ACCELERATION
Under the terms of the Note, if a Default exists, Mortgagee
may, at its option, without Notice to Mortgagor, declare the
Indebtedness to be immediately due and payable.
15. RIGHTS OF ENTRY AND TO OPERATE
15.1. ENTRY ON REAL PROPERTY
If a Default exists, Mortgagee may without Notice enter upon
the Real Property and take exclusive possession of the Real
Property and of all books, records and accounts, all without
Notice and without being guilty of trespass. If Mortgagor
remains in possession of all or any part of the Property after
Default and without
35
Mortgagee's prior written consent, Mortgagee may, without
Notice to Mortgagor, invoke any and all legal remedies to
dispossess Mortgagor.
15.2. OPERATION OF REAL PROPERTY
Following Default, Mortgagee may hold, lease, manage, operate
or otherwise use or permit the use of the Real Property,
either itself or by other persons, firms or entities, in such
manner, for such time and upon such other terms as Mortgagee
may deem to be prudent and reasonable under the circumstances
(making such repairs, alterations, additions and improvements
thereto and taking any and all other action with reference
thereto, from time to time, as Mortgagee deems necessary or
desirable), and apply all Rents and other amounts collected by
Mortgagee in accordance with the provisions of the Absolute
Assignment of Leases and Rents.
16. RECEIVERSHIP
Following Default, Mortgagee may apply to a court of competent
jurisdiction for the appointment of a receiver of the
Property, without Notice to Mortgagor, whether or not the
value of the Property exceeds the Indebtedness, whether or not
waste or deterioration of the Real Property has occurred, and
whether or not other arguments based on equity would justify
the appointment. Mortgagor irrevocably, with knowledge and for
valuable consideration, consents to such an appointment. Any
such receiver shall have all the rights and powers customarily
given to receivers in New York, including the rights and
powers granted to Mortgagee by this Mortgage, the power to
maintain, lease and operate the Real Property on terms
approved by the court, and the power to collect the Rents and
apply them to the Indebtedness or otherwise as the court may
direct. Once appointed, a receiver may at Mortgagee's option
remain in place until the Indebtedness has been paid in full.
17. FORECLOSURE; POWER OF SALE
17.1. AVAILABLE REMEDIES
Upon Default, Mortgagee may immediately proceed to foreclose
the lien of this Mortgage, against all or part of the
Property, or to sell the Property, by judicial or nonjudicial
foreclosure or power of sale in accordance with the laws of
New York and may pursue any other remedy available to mortgage
lenders under the laws of New York. In case of a sale by
foreclosure or otherwise, the Real Property may, in
Mortgagee's sole discretion, be sold in one or more parcels,
any provision of any statute, regulation or other law to the
contrary notwithstanding.
36
17.2. EXPENSES
In connection with any foreclosure of the lien hereof (whether
by judicial proceeding or power or sale) or any action to
enforce any other remedy of Mortgagee under this Mortgage, the
Note or any other Loan Document, Mortgagor agrees to pay all
expenditures and expenses which may be paid or incurred by or
on behalf of Mortgagee including, without limitation,
attorneys' fees and disbursements, court costs, appraiser's
fees, outlays for documentary and expert evidence,
stenographers' charges, publication costs, and costs (which
may be estimated as to items to be expended after entry of the
decree) of procuring all such abstracts of title, title
searches and examinations, title insurance policies, and
similar data and assurances with respect to title and value as
Mortgagee may deem reasonably necessary either to prosecute
such suit or to evidence to bidders at any sale which may be
had pursuant to such decree the true condition of title to or
the value of the Real Property, and the right to such fees and
expenses shall be deemed to have accrued on commencement of
such action and shall be enforceable whether or not such
action is prosecuted to judgment. Subject to the limitation on
the maximum secured amount set forth in this Mortgage, all
expenditures and expenses of the nature in this Section
mentioned and such expenses and fees as may be incurred in the
protection of Mortgagee's interest in the Real Property or the
maintenance of the lien of this Mortgage as permitted under
the terms of this Mortgage and the other loan documents,
including the fees of any attorney employed by Mortgagee (i)
in any litigation or proceeding (including, without
limitation, any bankruptcy proceeding if Mortgagor shall be
the debtor in a case filed under the Bankruptcy Code)
affecting this Mortgage, the Note or any of the other Loan
Documents or concerning the protection of Mortgagee's interest
in the Real Property or the maintenance of the lien of this
Mortgage, whether or not Mortgagee is a party thereto, or (ii)
in preparation for the commencement or defense of any
litigation or proceeding described in (i) above or any such
litigation or proceeding that may be threatened in writing,
whether or not such litigation or proceeding is actually
commenced, shall be immediately due and payable by Mortgagor
upon demand, with interest thereon at the Default Rate and
shall be secured by this Mortgage and the other Loan
Documents.
17.3 APPLICATION OF PROCEEDS OF FORECLOSURE SALE
The proceeds of any foreclosure sale of the Real Property
shall be distributed and applied in the following order of
priority: (a) first, to payment of all costs and expenses
incident to the foreclosure proceedings, including, without
limitation, all such items as are
37
mentioned in Subsection 18.2; (b) second, to the cost of any
search and/or other evidence of title procured in connection
therewith and the transfer tax on any deed or conveyance; (c)
third, to all sums expended under the terms hereof, not then
repaid, with accrued interest at the rate provided herein; (d)
fourth, to all other sums secured hereby, in such order as
Mortgagee may determine in its sole and absolute discretion;
and (e) fifth, the remainder, if any to the person or persons
legally entitled thereto.
17.4 CONTINUATION OF LEASES
Upon the foreclosure of the lien created by this Mortgage, no
Lease then existing shall be destroyed or terminated as a
result of such foreclosure unless Mortgagee or any purchaser
of the Property shall be so elect by notice to the tenant or
lessee in question.
18. WAIVERS
To the maximum extent permitted by law, Mortgagor irrevocably
and unconditionally WAIVES and RELEASES any present or future
rights (a) of reinstatement or redemption (b) that may exempt
the Property from any civil process, (c) to appraisal or
valuation of the Property, (d) to extension of time for
payment, (e) that may subject Mortgagee's exercise of its
remedies to the administration of any decedent's estate or to
any partition or liquidation action, (f) to any homestead and
exemption rights provided by the Constitution and laws of the
United States and of New York, (g) to notice of acceleration
or notice of intent to accelerate, and (h) that in any way
would delay or defeat the right of Mortgagee to cause the sale
of the Real Property for the purpose of satisfying the
Indebtedness. Mortgagor agrees that the price paid at a lawful
foreclosure sale, whether by Mortgagee or by a third party,
and whether paid through cancellation of all or a portion of
the Indebtedness or in cash, shall conclusively establish the
value of the Real Property.
19. EXCULPATION CLAUSE AND CARVEOUT OBLIGATIONS
Mortgagee agrees that it shall not seek to enforce any
monetary judgment with respect to the indebtedness evidenced
by the Note against Mortgagor and Mortgagee shall not have
recourse to Mortgagor or any of its assets except through
recourse to the Property, unless the obligation from which the
judgment arises is a Carveout Obligation. The Carveout
Obligations include (i) the obligation to repay any portion of
the Indebtedness that arises from a Carveout, (ii) the
obligation to repay the entire Indebtedness, if Mortgagee's
exculpation of the Mortgagor from personal liability
38
under this Section has become void pursuant to the last
paragraph of this Section 19, (iii) the obligation to
indemnify the Mortgagee in respect of its actual damages
suffered in connection with a Carveout, and (iv) the
obligation to defend the Mortgagee from and against any
claims, judgments, causes of action or proceedings arising
from the Carveouts. The Carveouts include:
(i) fraud or material written misrepresentation;
(ii) waste of the Property (which shall be defined to
include damage, destruction or disrepair of the Real
Property caused by a willful act or grossly negligent
omission of the Mortgagor, but to exclude ordinary
wear and tear in the absence of gross negligence);
(iii) misapplication of tenant security deposits, Insurance
Proceeds or Condemnation Proceeds;
(iv) failure to pay property taxes, assessments or other
lienable Impositions, to the extent that amounts held
by the Mortgagee in escrow for the payment of such
impositions and amounts held by any receiver or in
any lock-box, or collected by Mortgagee under the
related assignment, are insufficient for such
payment, provided, however, that no such failure
shall be considered to have occurred in respect of
any period more than sixty (60) days after the
Mortgagor has unconditionally offered to enter into
the Mortgagee's choice of either (A) an agreement to
permit an uncontested foreclosure, or (B) an
agreement to deliver a deed in lieu of foreclosure,
in either case within sixty (60) days of the
Mortgagee's acceptance of the offer;
(v) failure to pay to Mortgagee all Rents, income and
profits, net of reasonable and customary operating
expenses, received in respect of a period when the
Loan is in Default (as defined herein);
(vi) the out-of-pocket expenses of enforcing the Loan
Documents following Default, not including expenses
incurred after the Mortgagor has agreed in writing to
transfer the Real Property to the Mortgagee by the
Mortgagee's choice of either an uncontested
foreclosure or delivery of a deed in lieu of
foreclosure;
(vii) terminating or amending a Lease in violation of the
Loan Documents;
(viii) any presence or release of hazardous substances;
(ix) any and all liabilities, obligations, losses,
damages, penalties, actions, causes of action,
judgments, suits, claims, costs, expenses of any kind
or nature, including the reasonable fees and expenses
of counsel, which arise as a result of Mortgagor's
failure to perform its obligations as tenant,
including without limitation, payment of rent or
taxes, pursuant to any Air Rights lease (as such term
is defined in
39
the Mortgage) or Borrower's failure to perform its
obligations as sublandlord pursuant to any sublease
of an Air Rights Lease;
(x) any and all liabilities, obligations, losses,
damages, penalties, actions, causes of action,
judgments, suits, claims, costs, expenses of any kind
or nature, including the reasonable fees and expenses
of counsel, which arise as a result of the
termination or expiration of any Air Rights Lease,
whether by reason of Mortgagor's failure to timely
exercise any right or option to such Air Rights
Lease, Mortgagor's default thereunder, or any other
cause or circumstance; and
(xi) claims made, or causes of action commenced, by
tenants at the Property known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
resulting from the interruption of telephone service
arising from damage to the ▇▇▇▇ Atlantic equipment in
the parking garage which occurred prior to the date
hereof.
The Mortgagee's exculpation of the Mortgagor from personal
liability for the repayment of the Indebtedness shall be void
without Notice if Mortgagor (a) voluntarily transfers or
encumbers the Property in violation of this Mortgage, or (b)
files a voluntary petition for reorganization under Title 11
of the United States Code (or under any other present or
future law, domestic or foreign, similarly affording relief
from creditors), and has not offered, prior to the filing, to
enter into the Mortgagee's choice of either an agreement to
permit an uncontested foreclosure, or an agreement to deliver
a deed in lieu of foreclosure within sixty (60) days of the
Mortgagee's acceptance of the offer. After the Mortgagee
accepts such an offer, default by the Mortgagor in fulfilling
the terms of the accepted offer shall trigger personal
liability for the entire Indebtedness. No such offer shall be
conditioned on any payment by the Mortgagee, on the release of
any obligor from any Obligation, or on any other concession.
If the Mortgagor voluntarily assumes recourse liability under
Loan Documents or other written agreements that expressly
provide for such personal liability, such Loan Documents or
written agreements, if any, shall not be subject to
exculpation from personal liability.
20. SECURITY AGREEMENT AND FIXTURE FILING
20.1. SECURITY AGREEMENT
This Mortgage shall be self-operative and shall constitute a
Security Agreement pursuant to the provisions of the Code with
respect to those items comprising Property that may be subject
to a security interest under the Code. Mortgagor, as debtor,
hereby grants Mortgagee, as secured party, a security interest
in those items and in all related additions, replacements,
substitutions and proceeds, for the purpose of securing the
Indebtedness. Mortgagor hereby
40
agrees to execute and deliver on demand, and irrevocably
constitutes and appoints Mortgagee the attorney-in-fact of
Mortgagor, to execute, deliver and, if appropriate, to file
with the appropriate filing officer or office, such security
agreements, financing statements or other instruments as
Mortgagee may reasonably require in order to create, perfect,
or continue this security interest. Mortgagor shall pay all
related filing fees and costs, all reasonable costs and
expenses of any record searches (or their continuations), as
Mortgagee may reasonably require. Without the prior written
consent of Mortgagee, Mortgagor shall not create or suffer the
creation of any other lien on or security interest in any of
the Property subject to the security interest. Upon Default,
Mortgagee shall have the rights and remedies of a secured
party under the Code as well as all other rights and remedies
available at law or in equity, and, at Mortgagee's option,
Mortgagee may also invoke the remedies provided elsewhere in
this Mortgage as to such property. Mortgagor and Mortgagee
agree that the rights granted to Mortgagee as secured party
under this Section 21 are in addition to rather than a
limitation on any of Mortgagee's other rights under this
Mortgage with respect to the Personal Property. No failure to
mention any item in a financing statement shall limit the
scope of Mortgagor's assignment of any Property, impair the
priority of Mortgagee`s lien on any Personal Property, or
alter Mortgagee's rights to Insurance Proceeds and
Condemnation Proceeds.
20.2. FIXTURE FILING
This Mortgage constitutes a financing statement filed as a
fixture filing in the Official Records of the County Clerk of
New York County, New York with respect to any and all fixtures
comprising Property. The "debtor" is Metropolitan 810 7th Ave,
LLC, a limited liability company organized under Delaware law,
and 100 Wall Company LLC, a limited liability company
organized under Delaware law, the "secured party" is
Monumental Life Insurance Company, a Maryland corporation, the
collateral is as described in Section 20 above and the
granting clause of this Mortgage, and the addresses of the
debtor and secured party are the addresses stated in
Subsection 22.12 of this Mortgage for Notices to such parties.
The owner of record of the Real Property is Metropolitan 810
7th Ave, LLC with respect to the Real Property described on
Exhibit B-1 and 100 Wall Company LLC with respect to the Real
Property described on Exhibit B-2.
41
21. ENVIRONMENTAL MATTERS
21.1. REPRESENTATIONS
The Mortgagor represents as follows:
(a) No Hazardous Substances
To the best of Mortgagor's knowledge as a duly
diligent property owner, and except as disclosed in
the ESA, no release of any Hazardous Substance has
occurred on or about the Real Property in quantities
or at concentration levels that would be expected to
give rise to response action.
(b) Compliance with Environmental Laws
The Real Property and its current use and presently
anticipated uses comply with all Environmental Laws,
including those requiring permits, licenses,
authorizations, and other consents and approvals.
(c) No Actions or Proceedings
No governmental authority or agency has commenced any
action, proceeding or investigation based on any
suspected or actual violation of any Environmental
Law on or about the Real Property. To the best of
Mortgagor's knowledge as a duly diligent property
owner, no such authority or agency has threatened to
commence any such action, proceeding, or
investigation.
21.2. COVENANTS
Mortgagor covenants as follows:
(a) Compliance with Environmental Laws
Mortgagor shall, and Mortgagor shall cause all
employees, agents, contractors, and tenants of
Mortgagor and any other persons present on or
occupying the Real Property, to keep and maintain the
Real Property in material compliance with all
Environmental Laws.
(b) Notices, Actions and Claims
The Mortgagor shall immediately advise Mortgagee in
writing of (i) any notices from any governmental or
quasi-governmental agency or authority of violation
or potential violation of any Environmental Law
received by Mortgagor, (ii) any and all enforcement,
cleanup, removal or other governmental or regulatory
actions instituted, completed or
42
threatened pursuant to any Environmental Law, (iii)
all claims made or threatened by any third party
against Mortgagor or the Real Property relating to
damage, contribution, cost recovery, compensation,
loss or injury resulting from any Hazardous
Substances, and (iv) discovery by Mortgagor of any
occurrence or condition on any real property
adjoining or in the vicinity of the Real Property
that could cause the Real Property to become
contaminated by or with Hazardous Substances.
21.3. MORTGAGEE'S RIGHT TO CONTROL CLAIMS
Mortgagee shall have the right (but not the obligation) to
join and participate in, as a party if it so elects, any legal
proceedings or actions initiated in connection with any
Hazardous Substances and to have its consultants' fees and
attorneys' fees paid by Mortgagor, provided however, that with
respect to attorneys' fees, so long as no Default has occurred
hereunder or under the other Loan Documents, Mortgagee shall
not be entitled to seek payment thereof from Mortgagor under
this Section 21.3 unless Mortgagee has reasonably determined
that its representation by counsel separate from Mortgagor in
any such proceeding or action is necessary or advisable
(whether by reason of a conflict of interest, a determination,
in Mortgagee's reasonable good faith judgment, that
Mortgagor's counsel is not adequately representing Mortgagee's
interest, or other reasonable basis for such determination).
21.4. INDEMNIFICATION
Mortgagor shall be solely responsible for, and shall
indemnify, defend, and hold harmless Mortgagee and its
directors, officers, employees, agents, successors and assigns
from and against, any claim, judgment, loss, damage, demand,
cost, expense or liability of whatever kind or nature, known
or unknown, contingent or otherwise, directly or indirectly
arising out of or attributable to the use, generation,
storage, release, threatened release, discharge, disposal, or
presence (whether prior to or after the date of this Mortgage)
of Hazardous Substances on, in, under or about the Real
Property (whether by Mortgagor, a predecessor in title, any
tenant, or any employees, agents, contractor or subcontractors
of any of the foregoing or any third persons at any time
occupying or present on the Real Property), including: (i)
personal injury; (ii) death; (iii) damage to property; (iv)
all consequential damages; (v) the cost of any required or
necessary repair, cleanup or detoxification of the Real
Property, including the soil and ground water thereof, and the
preparation and implementation of any closure, remedial or
other required plans; (vi) damage to any natural resources;
and (vii) all reasonable costs and expenses
43
incurred by Mortgagee in connection with clauses (i) through
(vi), including reasonable attorneys' and consultants' fees;
provided, however, that nothing contained in this Section
shall be deemed to preclude Mortgagor from seeking
indemnification from, or otherwise proceeding against, any
third party including any tenant or predecessor in title to
the Real Property. The covenants, agreements, and indemnities
set forth in this Section shall be binding upon Mortgagor and
its heirs, personal representatives, successors and assigns,
and shall survive repayment of the Indebtedness, foreclosure
of the Real Property, and Mortgagor's granting of a deed to
the Real Property in lieu of foreclosure. Payment shall not be
a condition precedent to this indemnity. Any costs or expenses
incurred by Mortgagee for which Mortgagor is responsible or
for which Mortgagor has indemnified Mortgagee shall be paid to
Mortgagee within ten (10) Business Days after demand, with
interest at the Default Rate from the date incurred by
Mortgagee until paid in full, and shall be secured by this
Mortgage. Without the prior written consent of Mortgagee,
Mortgagor shall not enter into any settlement agreement,
consent decree, or other compromise in respect to any claims
relating to Hazardous Substances; provided however, if (1)
there is no Default hereunder or under any of the other Loan
Documents, (2) the settlement, compromise or consent decree
does not require or impose on Mortgagee any admission of
liability, negligence or wrong doing, and (3) there is no
performance required under such settlement, compromise or
consent decree on Mortgagee's part and any such performance
required by Mortgagor is, in Mortgagee's reasonable judgment,
adequately provided for, then, in such event, Mortgagee shall
not unreasonably withhold, condition or delay its consent.
Notwithstanding the foregoing, the indemnification set forth
in this Section 21.4 shall not extend to matters caused by the
Mortgagee's gross negligence or willful misconduct or arising
from a release, discharge, disposal, or presence of Hazardous
Substances that occurs after the Mortgagee has taken
possession of the Real Property (provided the Mortgagor has
not caused the release, discharge, disposal, or presence
though an act or omission).
21.5. ENVIRONMENTAL AUDITS
If a Default exists, or at any time Mortgagee has reason to
believe that a release of Hazardous Substances may have
occurred or may be likely to occur, Mortgagee may require that
Mortgagor retain, or Mortgagee may retain directly, at the
sole cost and expense of Mortgagor, a licensed geologist,
industrial hygienist or an environmental consultant acceptable
to Mortgagee to conduct an environmental assessment or audit
of the Real
44
Property. In the event that Mortgagee makes a reasonable
determination of the need for an environmental assessment or
audit, Mortgagee shall inform Mortgagor (either orally or in
writing) that such a determination has been made and, if
requested to do so by Mortgagor, give Mortgagor a written
explanation of that determination before the assessment or
audit is conducted. Mortgagor shall afford any person
conducting an environmental assessment or audit access to the
Real Property and all materials reasonably requested.
Mortgagor shall pay within ten (10) Business Days after demand
the cost and expenses of any environmental assessment or audit
obtained by Mortgagee. Mortgagor shall, at Mortgagee's request
and at Mortgagor's sole cost and expense, take such
investigative and remedial measures determined by the
geologist, hygienist or consultant to be necessary to address
any condition discovered by the assessment or audit so that
(i) the Real Property shall be in compliance with all
Environmental Laws, (ii) the condition of the Real Property
shall not constitute any identifiable risk to human health or
to the environment, and (iii) the value of the Real Property
shall not be affected by the presence of Hazardous Substances.
22. MISCELLANEOUS
22.1. SUCCESSORS AND ASSIGNS
All of the terms of the Loan Documents shall apply to, be
binding upon and inure to the benefit of the heirs, personal
representatives, successors and assigns of the Obligors, or to
the holder of the Note, as the case may be.
22.2. SURVIVAL OF OBLIGATIONS
Each and all of the Obligations shall survive the execution
and delivery of the Loan Documents and will continue in full
force and effect until the latest of (a) the date the
Indebtedness has been paid in full and the Obligations have
been performed and satisfied in full, (b) the last date
permitted by law for bringing any claim or action with respect
to which Mortgagee may seek payment or indemnification in
connection with the Loan Documents, and (c) the date on which
any claim or action for which Mortgagee seeks payment or
indemnification is fully and finally resolved and, if
applicable, any compromise thereof of judgment or award
thereon is paid in full.
22.3. FURTHER ASSURANCES
Mortgagor, upon the request of Mortgagee, shall complete,
execute, acknowledge, deliver and record or file such further
instruments and do such further acts as may be reasonably
45
necessary, desirable or proper to carry out more effectively
the purposes of this Mortgage, to subject any property
intended to be covered by this Mortgage to the liens and
security interests it creates, to place third parties on
notice of those liens and security interests, or to correct
any defects which may be found in any Loan Document.
22.4. EXPENSE INDEMNIFICATION
Mortgagor shall pay all filing and recording fees, documentary
stamps, intangible taxes, and all expenses incident to the
execution and acknowledgment of this Mortgage, the Note or any
of the other Loan Documents, any supplements, amendments,
renewals or extensions of any of them, or any instrument
entered into under Subsection 22.3. Mortgagor shall pay or
reimburse Mortgagee, upon demand, for all costs and expenses,
including appraisal and reappraisal costs of the Property and
reasonable attorneys' and legal assistants' fees, which
Mortgagee may incur in connection with enforcement proceedings
under the Note, this Mortgage, or any of the other Loan
Documents (including all fees and costs incurred in enforcing
or protecting the Note, this Mortgage, or any of the other
Loan Documents in any bankruptcy proceeding), and reasonable
attorneys' and legal assistants' fees incurred by Mortgagee in
any other suit, action, legal proceeding or dispute of any
kind in which Mortgagee is made a party or appears as party
plaintiff or defendant, affecting the Indebtedness, the Note,
this Mortgage, any of the other Loan Documents, or the
Property, or required to protect or sustain the lien of this
Mortgage. Mortgagor shall be obligated to pay (or to reimburse
Mortgagee) for such fees, costs and expenses and shall
indemnify and hold Mortgagee harmless from and against any and
all loss, cost, expense, liability, damage and claims and
causes of action, including reasonable attorneys' fees,
incurred or accruing by reason of Mortgagor's failure to
promptly repay any such fees, costs and expenses. If any suit
or action is brought to enforce or interpret any of the terms
of this Mortgage (including any effort to modify or vacate any
automatic stay or injunction, any trial, any appeal, any
petition for review or any bankruptcy proceeding), the
Mortgagee shall be entitled to recover all expenses reasonably
incurred in preparation for or during the suit or action or in
connection with any appeal of the related decision, whether or
not taxable as costs. Such expenses include attorneys' fees,
witness fees (expert or otherwise), deposition costs, copying
charges and other expenses. Whether or not any court action is
involved, all reasonable expenses, including the costs of
searching records, obtaining title reports, appraisals,
environmental assessments, surveying costs, title insurance
premiums, and attorneys' fees, incurred by Mortgagee that are
necessary at any time in
46
Mortgagee's opinion for the protection of its interest or
enforcement of its rights shall become a part of the
Indebtedness payable on demand and shall bear interest from
the date of expenditure until repaid at the interest rate as
provided in the Note.
22.5. GENERAL INDEMNIFICATION
Mortgagor shall indemnify, defend and hold Mortgagee harmless
against: (i) any and all claims for brokerage, leasing,
finder's or similar fees which may be made relating to the
Real Property or the Indebtedness, (ii) any and all liability,
obligations, losses, damages, penalties, claims, actions,
suits costs and expenses (including Mortgagee's reasonable
attorneys' fees, together with reasonable appellate counsel
fees, if any) of whatever kind or nature which may be asserted
against, imposed on or incurred by Mortgagee in connection
with the Indebtedness, this Mortgage, the Real Property or any
part thereof, or the operation, maintenance and/or use
thereof, or the exercise by Mortgagee of any rights or
remedies granted to it under this Mortgage or pursuant to
applicable law; provided, however, that nothing herein shall
be construed to obligate Mortgagor to indemnify, defend and
hold harmless Mortgagee from and against any of the foregoing
which is imposed on or incurred by Mortgagee by reason of
Mortgagee's willful misconduct or gross negligence.
22.6. RECORDING AND FILING
Mortgagor shall cause this Mortgage and all amendments,
supplements, and substitutions to be recorded, filed,
re-recorded and refiled in such manner and in such places as
Mortgagee may reasonably request. Mortgagor will pay all
recording filing, re-recording and refiling taxes, fees and
other charges.
22.7. NO WAIVER
No deliberate or unintentional failure by Mortgagee to require
strict performance by Mortgagor of any Obligation shall be
deemed a waiver, and Mortgagee shall have the right at any
time to require strict performance by Mortgagor of any
Obligation.
22.8. COVENANTS RUNNING WITH THE LAND
All Obligations are intended by the parties to be and shall be
construed as covenants running with the Land.
22.9. SEVERABILITY
The Loan Documents are intended to be performed in accordance
with, and only to the extent permitted by, all
47
applicable Legal Requirements. Any provision of the Loan
Documents that is prohibited or unenforceable in any
jurisdiction shall nevertheless be construed and given effect
to the extent possible. The invalidity or unenforceability of
any provision in a particular jurisdiction shall neither
invalidate nor render unenforceable any other provision of the
Loan Documents in that jurisdiction, and shall not affect the
validity or enforceability of that provision in any other
jurisdiction. If a provision is held to be invalid or
unenforceable as to a particular person or under a particular
circumstance, it shall nevertheless be presumed valid and
enforceable as to others, or under other circumstances.
22.10. USURY
The parties intend that no provision of the Note or the Loan
Documents be interpreted, construed, applied, or enforced so
as to permit or require the payment or collection of interest
in excess of the highest rate of interest (the "Maximum
Permitted Rate") permitted to be paid or collected by
applicable law with respect to this transaction. In this
regard, Mortgagor and Mortgagee each stipulate and agree that
it is their common and overriding intent to contract in strict
compliance with applicable usury laws. Accordingly, none of
the terms of this Mortgage, the Note or any of the other Loan
Documents shall ever be construed to create a contract to pay,
as consideration for the use, forbearance or detention of
money, interest at a rate in excess of the Maximum Permitted
Rate, and Mortgagor shall never be liable for interest in
excess of the Maximum Permitted Rate. Therefore, (a) in the
event that the Indebtedness and Obligations are prepaid or the
maturity of the Indebtedness and Obligations is accelerated by
reason of an election by Mortgagee, unearned interest shall be
canceled and, if theretofore paid, shall either be refunded to
Mortgagor or credited on the Indebtedness, as Mortgagee may
elect; (b) the aggregate of all interest and other charges
constituting interest under applicable laws and contracted
for, chargeable or receivable under the Note and the other
Loan Documents or otherwise in connection with the transaction
contemplated thereby shall never exceed the maximum amount of
interest, nor produce a rate in excess of the Maximum
Permitted Rate; and (c) if any excess interest is provided for
or received, it shall be deemed a mistake, and the same shall,
at the option of Mortgagee, either be refunded to Mortgagor or
credited on the unpaid principal amount (if any), and the
Indebtedness shall be automatically reformed so as to permit
only the collection of the interest at the Maximum Permitted
Rate. Furthermore, if any provision of the Note or any of the
other Loan Documents is interpreted, construed, applied, or
enforced, in such a manner as to provide for interest in
excess of the Maximum Permitted Rate, then the parties intend
that such
48
provision automatically shall be deemed reformed retroactively
so as to require payment only of interest at the Maximum
Permitted Rate. If, for any reason whatsoever, interest paid
or received during the full term of the applicable
Indebtedness produces a rate which exceeds the Maximum
Permitted Rate, then the amount of such excess shall be deemed
credited retroactively in reduction of the then outstanding
principal amount of the Indebtedness, together with interest
at such Maximum Permitted Rate. Mortgagee shall credit against
the principal of such Indebtedness (or, if such Indebtedness
shall have been paid in full, shall refund to the payor of
such interest) such portion of said interest as shall be
necessary to cause the interest paid to produce a rate equal
to the Maximum Permitted Rate. All sums paid or agreed to be
paid to Mortgagee for the use, forbearance or detention of
money shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread in equal parts
throughout the full term of the applicable Indebtedness, so
that the interest rate is uniform throughout the full term of
such Indebtedness. In connection with all calculations to
determine the Maximum Permitted Rate, the parties intend that
all charges be excluded to the extent they are properly
excludable under applicable usury laws, as they from time to
time are determined to apply to this transaction. The
provisions of this Section shall control all agreements,
whether now or hereafter existing and whether written or oral,
between Mortgagor and Mortgagee.
22.11. ENTIRE AGREEMENT
The Loan Documents contain the entire agreements between the
parties relating to the financing of the Real Property, and
all prior agreements which are not contained in the Loan
Documents are terminated. The Loan Documents represent the
final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties. The Loan
Documents may be amended, revised, waived, discharged,
released or terminated only by a written instrument or
instruments executed by the party against whom enforcement of
the amendment, revision, waiver, discharge, release or
termination is asserted. Any alleged amendment, revision,
waiver, discharge, release or termination that is not so
documented shall be null and void.
22.12. NOTICES
In order for any demand, consent, approval or other
communication to be effective under the terms of this
Mortgage, "Notice" must be provided under the terms of this
Subsection. All
49
Notices must be in writing. Notices may be (a) delivered by
hand, (b) transmitted by telecopy (with a duplicate copy sent
by one of the other methods provided herein), (c) sent by
certified or registered mail, postage prepaid, return receipt
requested, or (d) sent by reputable overnight courier service,
delivery charges prepaid. Notices shall be addressed as set
forth below:
If to Mortgagee:
Monumental Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Mortgage Loan Department
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Reference: Loan #87947
If to Mortgagor:
Metropolitan 810 7th Ave, LLC
c/o Reckson Associates
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇--▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
and 100 Wall Company LLC
c/o Reckson Associates
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to
Reckson Associates Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Notices delivered by hand or by overnight courier shall be
deemed given when actually received or when refused by their
intended recipient. Telecopied Notices will be deemed
delivered when a legible copy has been received (provided
receipt has been verified by telephone confirmation or one of
the other permitted means of giving Notices under this
Subsection). Mailed Notices
50
shall be deemed received three days after mailing. Either
Mortgagee or Mortgagor may change its address for Notice by
giving at least fifteen (15) Business Days' prior Notice of
such change to the other party.
22.13. COUNTERPARTS
This Mortgage may be executed in any number of counterparts,
each of which shall be an original, but all of which together
shall constitute but one instrument.
22.14. APPLICABLE LAW
This Mortgage will be interpreted, construed, applied, and
enforced according to, and will be governed by, the laws of
the State of New York, without regard to any choice of law
principles which, but for this provision, would require the
application of the law of another jurisdiction and regardless
of where executed or delivered, where payable or paid, where
any cause of action accrues in connection with this
transaction, where any action or other proceeding involving
this Mortgage is instituted or pending, or whether the laws of
the State of New York otherwise would apply the laws of
another jurisdiction. Mortgagor agrees that the sole and
exclusive forum for the determination of any action relating
to the validity and enforceability of the Note, this Mortgage
and the other Loan Documents, and any other instruments
securing the Note shall be either in an appropriate court of
the State of New York or the applicable United States District
Court.
22.15. SOLE BENEFIT
This Mortgage and the other Loan Documents have been executed
for the sole benefit of Mortgagor and Mortgagee and the
successors and assigns of Mortgagee and the successors and
permitted assigns of Mortgagor. No other party shall have
rights thereunder or be entitled to assume that the parties
thereto will insist upon strict performance of their mutual
obligations hereunder, any of which may be waived from time to
time. Except as expressly permitted in the Mortgage, Mortgagor
shall have no right to assign any of its rights under the Loan
Documents to any party whatsoever.
22.16. RELEASE OF CLAIMS
Mortgagor hereby RELEASES, DISCHARGES and ACQUITS forever
Mortgagee and its officers, directors, trustees, agents,
employees and counsel (in each case, past, present or future)
from any and all Claims existing as of the date hereof (or the
date of actual execution hereof by Mortgagor, if later). As
used herein, the term
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"Claim" shall mean any and all liabilities, claims, defenses,
demands, actions, causes of action, judgments, deficiencies,
interest, liens, costs or expenses (including court costs,
penalties, attorneys' fees and disbursements, and amounts paid
in settlement) of any kind and character whatsoever, including
claims for usury, breach of contract, breach of commitment,
negligent misrepresentation or failure to act in good faith,
in each case whether now known or unknown, suspected or
unsuspected, asserted or unasserted or primary or contingent,
and whether arising out of written documents, unwritten
undertakings, course of conduct, tort, violations of laws or
regulations or otherwise.
22.17. NO PARTNERSHIP
Nothing contained in the Loan Documents is intended to create
any partnership, joint venture or association between
Mortgagor and Mortgagee, or in any way make Mortgagee a
co-principal with Mortgagor with reference to the Property.
22.18. PAYOFF PROCEDURES
In connection with any prepayment or payment at maturity by
Mortgagor, upon Mortgagor's request, Mortgagee shall deliver a
payoff letter setting forth all amounts required to satisfy
the Indebtedness. If Mortgagor pays or causes to be paid to
Mortgagee all of the Indebtedness, then Mortgagee's interest
in the Property shall cease, and upon receipt by Mortgagee of
such payment, Mortgagee shall, at Mortgagor's election, either
(a) release this Mortgage or (b) assign the Loan Documents and
endorse the Note (in either case without recourse or warranty
of any kind) and upon satisfaction of the Indebtedness,
deliver the original Note and Existing Notes (or, if lost, a
lost note affidavit) to a takeout lender, upon payment (in the
latter case) of an administrative fee of $750 and all
reasonable attorneys' fees incurred by Mortgagee in connection
therewith.
22.19. SURVIVAL OF COMMITMENT TERMS
The Commitment shall survive the execution of this Mortgage
and the other Loan Documents. Any term of the Commitment that
has been inadvertently omitted from the Loan Documents is
hereby incorporated in this Mortgage by reference. If any term
of the Commitment conflicts with a provision of this Mortgage
that addresses the same subject, the terms of this Mortgage
shall prevail.
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22.20. MAXIMUM AMOUNT SECURED
Under this Mortgage, "Indebtedness" has the meaning
hereinabove set forth, and includes, without limitation, any
additional disbursements to Mortgagor (unless in connection
with another, independent mortgage financing), as well as any
amounts advanced to pay Impositions, to cure Defaults, or to
pay the costs of collection and receivership. Accordingly, any
such sums shall be equally secured with, and have the same
priority as, the Indebtedness, and shall be subject to all of
the terms and provisions of this Mortgage. However, the
Indebtedness secured by this Mortgage shall not exceed an
amount equal to a maximum principal balance of $125,000,000.00
plus accrued interest and advances by Mortgagee in respect of
Impositions, or to cure any Default. Mortgagor shall pay any
taxes that may be due in connection with any such future
advance.
Notwithstanding anything contained herein to the contrary, the
maximum amount of indebtedness secured by this Mortgage at
execution or which under any contingency may become secured
hereby at any time hereafter is $125,000,000.00 plus interest
thereon, plus (a) taxes, charges or assessments which may be
imposed by law upon the Property, (b) premiums on insurance
policies covering the Property, (c) expenses incurred in
upholding the lien of this Mortgage, including, but not
limited to (1) the expenses of any litigation to prosecute or
defend the rights and lien created by this Mortgage, (2) any
amount, cost or charges to which the Mortgagee becomes
subrogated, upon payment, whether under recognized principles
of law or equity, or under express statutory authority and (3)
interest at the default rate (or regular interest rate).
22.21. INTERPRETATION
(a) Headings and General Application
The section, subsection, paragraph and subparagraph
headings of this Mortgage are provided for
convenience of reference only and shall in no way
affect, modify or define, or be used in construing,
the text of the sections, subsections, paragraphs or
subparagraphs. If the text requires, words used in
the singular shall be read as including the plural,
and pronouns of any gender shall include all genders.
(b) Sole Discretion
Mortgagee may take any action or decide any matter
under the terms of this Mortgage or of any other Loan
Document (including any consent, approval,
acceptance,
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option, election or authorization) in its sole and
absolute discretion, for any reason or for no reason,
unless the related Loan Document contains specific
language to the contrary. Any approval or consent
which the Mortgagee might withhold may be conditioned
in any way unless the related Loan Document contains
specific language to the contrary.
(c) Result of Negotiations
This Mortgage results from negotiations between
Mortgagor and Mortgagee and from their mutual
efforts. Therefore, it shall be so construed, and not
as though it had been prepared solely by Mortgagee.
(d) Reference to Particulars
The scope of a general statement made in this
Mortgage or in any other Loan Document shall not be
construed as having been reduced through the
inclusion of references to particular items that
would be included within the statement's scope.
Therefore, unless the relevant provision of a Loan
Document contains specific language to the contrary,
the term "include" shall mean "include, but shall not
be limited to" and the term "including" shall mean
"including, without limitation."
(e) Construction in Accordance with Real Property Law
The provisions hereof shall be construed as affording
to Mortgagee rights additional to and not exclusive
of the rights conferred under the provisions of
Sections 254, 271, 272 and 273 of the Real Property
Law of the State of New York; provided, however, in
the event of any inconsistency between the provisions
hereof and the provisions of said Sections 254, 271,
272 and 273, the provisions hereof shall govern.
22.22. JOINT AND SEVERAL LIABILITY
If there is more than one individual or entity executing this
Mortgage as Mortgagor, liability of such individuals and
entities under this Mortgage shall be joint and several.
22.23. TIME OF ESSENCE
Time is of the essence of each and every covenant, condition
and provision of this Mortgage to be performed by Mortgagor.
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22.24. JURY WAIVER
MORTGAGOR AND MORTGAGEE EACH HEREBY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS (I) UNDER THIS MORTGAGE OR ANY OTHER LOAN DOCUMENT
OR (II) ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN
CONNECTION WITH THIS MORTGAGE OR ANY OTHER LOAN DOCUMENT, AND
MORTGAGOR AND MORTGAGEE EACH AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A
JURY.
22.25. RENEWAL, EXTENSION, MODIFICATION AND WAIVER
Mortgagee, at its option, may at any time renew or extend this
Mortgage, the Note or any other Loan Document. Mortgagee may
enter into a modification of any Loan Document without the
consent of any person not a party to the document being
modified. Mortgagee may waive any covenant or condition of any
Loan Document, in whole or in part, at the request of any
person then having an interest in the Property or in any way
liable for any part of the Indebtedness. Mortgagee may take,
release, or resort to any security for the Note and the
Obligations and may release any party primarily or secondarily
liable on any Loan Document , all without affecting any
liability not expressly released in writing by Mortgagee.
22.26. CUMULATIVE REMEDIES
Every right and remedy provided in this Mortgage shall be
cumulative of every other right or remedy of Mortgagee,
whether conferred by law or by grant or contract, and may be
enforced concurrently with any such right or remedy. The
acceptance of the performance of any obligation to cure any
Default shall not be construed as a waiver of any rights with
respect to any other past, present or future Default. No
waiver in a particular instance of the requirement that any
Obligation be performed shall be construed as a waiver with
respect to any other Obligation or instance.
22.27. TRANSFER OF OWNERSHIP
Mortgagee may, without notice to Mortgagor, deal with any
person in whom ownership of any part of the Real Property has
vested, without in any way vitiating or discharging Mortgagor
from liability for any of the Obligations.
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22.28. NO MERGER
Even though title to the Real Property may be held in the
future by Mortgagee, the interest of the owner of the Real
Property and the interest of the holder of the title or lien
granted by this Mortgage shall at all times be separate,
distinct and apart, and shall in no event be merged by
operation of law or otherwise, unless and until all persons at
the time having an interest in the Real Property and this
Mortgage shall join in the execution of a written instrument
effecting such merger of estates (it being understood that
this provision shall survive the payment in full of the
Indebtedness).
22.29. ADDITIONAL TAXES
In the event of the enactment after this date of any law of
the State of New York or any political subdivision thereof
deducting from the value of Real Property for the purpose of
taxation any lien thereon, or imposing upon Mortgagee the
payment of the whole or any part of the taxed or assessments
or charges or liens herein required to be paid by Mortgagor,
or changing in any way the laws relating to the taxation of
mortgages or debts secured by mortgages or Mortgagee's
interest in the Real Property, or the manner of collection of
taxes or assessments, so as to affect this Mortgage or the
indebtedness or the holder hereof, then, and in any such
event, Mortgagor, upon demand by Mortgagee shall pay such
taxes or assessments, or reimburse Mortgagee therefor;
provided, however, that if in the reasonable opinion of
counsel for Mortgagee (i) it might be unlawful to require
Mortgagor to make such payment or (ii) the making of such
payment might result in the imposition of interest beyond the
maximum amount permitted by law, then, in either such event,
Mortgagee may elect, by notice in writing given to Mortgagor,
to declare all of the Indebtedness to be and become due and
payable (without penalty or premium) sixty (60) days from the
giving of such notice.
22.30. LOAN DOCUMENTS CONTROL
Notwithstanding any assignment of loan documents made to
Mortgagee prior to or on the date hereof by UBS AG, Stamford
Branch, the terms and conditions of the Loan are, and are
intended to be, governed by the Loan Documents (as such term
is defined herein).
23. PARTIAL RELEASE.
23.1. PARCEL 2 RELEASE.
Mortgage shall have the right to obtain a release of the Real
Property described on Exhibit B-2 (hereinafter "Parcel 2")
from the
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lien of this Mortgage provided that all of the following
conditions shall be satisfied:
(a) Mortgagor shall request such release by Mortgagee by
written notice ("Mortgagor's Release Request Notice")
to Mortgagee (with a copy of such notice to
Mortgagee's counsel, Piper & Marbury L.L.P., ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq.) not less than thirty (30)
days prior to Mortgagor's requested release date.
(b) Mortgagor shall pay to Mortgagee the Release Price.
For purposes of this Section 23, the "Release Price"
shall mean an amount equal to the greater of: (i) the
amount required to prepay the Designated Amount for
Parcel 2, together with prepayment premium applicable
to such amount as determined pursuant to the Note;
and (ii) the amount which, when applied to the
outstanding principal balance of the Loan as a
prepayment, with prepayment premium applicable to
such amount as determined pursuant to the Note, will
result in a Loan to Value ratio (the "LTV"), after
giving effect to the release of Parcel 2, equal to
the lesser of seventy-five (75%) percent and the Loan
to Value Ratio immediately prior to the Release of
Parcel 2. The LTV shall be determined by Mortgagee,
in Mortgagee's discretion, and upon determination
thereof, Mortgagee shall promptly advise Mortgagor of
its determination in writing ("Mortgagee's LTV
Notice"). Mortgagee shall make such determination and
deliver Mortgagee's determination to Mortgagor as
soon as reasonably practical after receipt of
Mortgagor's Release Request Notice, consistent with
Mortgagee's standard procedures, but in any event not
later than thirty (30) days after Mortgagee's receipt
of Mortgagor's Release Request Notice.
Notwithstanding the foregoing to the contrary,
however, in the event Mortgagor shall not agree with
Mortgagee's determination of the LTV, Mortgagor may,
by written notice to Mortgagee within three (3)
Business Days following Mortgagor's receipt of
Mortgagee's LTV Notice, elect to have Mortgagee
repeat the appraisal procedure described in 23.2
hereof and the LTV determined pursuant to such
procedure shall be utilized for purposes of this
Section 23.1 (b). In the event Mortgagor makes the
election set forth in the immediately preceding
sentence, Mortgagee shall have the longer of (x)
thirty (30) days following receipt of Mortgagor's
notice of election and (y) sixty (60) days following
Mortgagor's Release Request Notice to complete
57
the appraisal and make the determination required
under this Section 23.1(b). Mortgagor and Mortgagee
agree to reasonably cooperate with each other to
accomplish the foregoing in an expeditious manner,
including, without limitation, by promptly providing
such information as may be necessary or reasonably
requested by the appraiser or by Mortgagee in order
to permit the determination and/or appraisal
contemplated hereinabove to be performed.
(c) No Default shall have occurred hereunder or under the
other Loan Documents and be continuing.
(d) Mortgagor and, as applicable, the Carveout Obligor,
shall execute and deliver such documents,
instruments, certificates, agreements,
re-affirmations, financing statements and/or
amendments thereto and shall cause to be delivered
such other certificates or agreements as may be
necessary to effectuate the release of Parcel 2
and/or as may be reasonably requested by Mortgagee in
connection therewith. Mortgagor shall pay all of
Mortgagee's reasonable out-of-pocket expenses in
connection with such release of Parcel 2 including,
without limitation, reasonable attorneys fees and
expenses.
Without limitation to the foregoing, Mortgagee agrees that if
requested by Mortgagor, Mortgagee will permit the severance
and splitter of the Indebtedness in connection with a release
of Parcel 2 for the purpose of permitting an assignment of
mortgage, provided and on condition that:
(1) Mortgagor shall execute and deliver (and shall
cause any Carveout Guarantor, as applicable, to
execute and deliver) such agreements, instruments,
affidavits, consents, re-affirmations, financing
statements, opinions of counsel, and other documents
and/or amendments as Mortgagee may reasonably request
in order to effect the severance and splitter of the
Indebtedness evidenced by the Note and the lien of
this Mortgage and other Loan Documents, into two
separate indebtednesses and two separate liens, which
are cross-collateralized and cross-defaulted, one
made, respectively, by 810 and the other made by 100,
or their respective successors or assigns, as the
case may be;
(2) Mortgagor shall cause to be provided in
connection with such transaction such opinions of
counsel and title endorsements to Mortgagee's policy
of title insurance for the Mortgage as Mortgagee may
reasonably request;
(3) Mortgagor shall pay all of Mortgagee's out of
pocket expenses in connection with such transactions
including,
58
without limitation, reasonable attorneys fees and
expenses; and
(4) any such assignment of the Mortgage or other Loan
Documents shall be without recourse or warranty of
any kind to or by Mortgagee.
23.2. APPRAISAL PROCEDURE.
If requested by written notice from Mortgagor to Mortgagee as
provided in Section 23.1 above, the following appraisal
procedure shall be employed:
Mortgagee shall hire an appraiser (the "Fee Appraiser") to
prepare and submit to Mortgagee a full narrative appraisal
report estimating the market value of the Real Property. The
Fee Appraiser shall be certified in the state in which the
property is located and shall be a member of a national
appraisal organization that has adopted the Uniform Standards
of Professional Appraisal Practice (USPAP) established by the
Appraisal Standards Board of the Appraisal Foundation. The Fee
Appraiser will be required to use assumptions and limiting
conditions established by Mortgagee and to prepare the
appraisal in conformity with Mortgagee's Appraisal Guidelines.
When the Fee Appraiser's report is received, Mortgagee's
review appraiser will perform an appraisal review. If the
review appraiser does not concur with the Fee Appraiser's
estimate of market value, the review appraiser will estimate
the market value of the Real Property. Mortgagee will then
calculate the Loan-to-Value ratio, using either the Fee
Appraiser's estimate, if the review appraiser concurs with it,
or the review appraiser's estimate, if the two estimates vary.
24. COVENANTS AND REPRESENTATIONS RESPECTING THE AIR RIGHTS LEASES
(a) Mortgagor hereby represents and warrants to
Mortgagee, its successors and assigns, that the
following statements are true as of the date of this
Mortgage, and warrants and covenants to Mortgagee,
and to its successors and assigns, that the following
statements shall remain true during the term of this
Mortgage:
(1) To Mortgagor's knowledge: the Air Rights Leases
are now valid and subsisting leases and are in full
force and effect in accordance with the terms thereof
and have not been modified except as set forth in
Exhibit F annexed hereto; all of the rents payable
under the Air Rights Leases (whether denominated as
rent or additional rent or otherwise) prior to the
date hereof have been paid.
59
(2) Mortgagor has not delivered or received any
notices of default under the Air Rights Leases as of
the date hereof which remain uncured, and, to
Mortgagor's knowledge, no predecessor of Mortgagor
has delivered or received any notices of default
under the Air Rights Leases which have not been cured
or waived in accordance with the provisions of the
Air Rights Leases or which have not been settled by
the parties thereto. Mortgagor is not in default
beyond any applicable notice or cure period under any
of the terms of the Air Rights Leases, and, to
Mortgagor's knowledge, there are no events which,
with the passage of time or giving of notice or both,
would constitute a default under the Air Rights
Leases.
(3) Mortgagor has delivered to Mortgagee a true and
complete copy of the Air Rights Leases.
(4) This Mortgage is lawfully executed and delivered
in conformity with the Air Rights Leases and this
Mortgage is and will be kept a valid lien on the
interest of Mortgagor under the Air Rights Leases.
(5) Mortgagor will promptly notify Mortgagee of any
request made by either party to the Air Rights Leases
for arbitration proceedings pursuant to any of the
Air Rights Leases and of the institution of any
arbitration proceedings and will promptly deliver to
Mortgagee a copy of the determination of the
arbitrators in each such arbitration proceeding.
(6) Mortgagor shall exercise each individual option,
if any, to extend or renew the term of each of the
Air Rights Leases which extension or renewal of the
term of the Air Rights Leases occurs prior to the
Maturity Date of the Note. Mortgagor hereby expressly
authorizes and appoints Mortgagee its
attorney-in-fact to exercise any such option in the
name of an on behalf of Mortgagor, which power of
attorney shall be irrevocable and shall be deemed to
be coupled with an interest.
(b) Mortgagor will not, without the prior written consent
of Mortgagee, which may be given or withheld in
Mortgagee's sole discretion: fail or refuse to take
timely and necessary action to renew each of the Air
Rights Leases pursuant to the provisions thereof;
consent to any action taken or to be taken by the
lessor or anyone else under any of the Air Rights
Leases the result of which would be to diminish or
impair
60
the security of this Mortgage; further encumber the
leasehold estate under the Air Rights Leases or
subordinate or consent to the subordination of any of
the Air Rights Leases or the interest of Mortgagor
thereunder to any mortgage or deed of trust on the
lessor's interest in the premises demised by the Air
Rights Leases or any portion thereof.
(c) Mortgagor will at all times fully and promptly
perform and comply with all obligations of tenant
under the Air Rights Leases without relying on any
grace period provided therein, and if Mortgagor shall
fail so to do, Mortgagee may (but shall not be
obligated to) take any such action, without awaiting
the expiration of any grace period, as Mortgagee
deems necessary or desirable to prevent or to cure
any default by Mortgagor thereunder; that upon
receipt by Mortgagee from the landlord under the Air
Rights Leases of any written notice of default by the
tenant, Mortgagee may rely thereon and take any such
action even though the existence of such default or
the nature thereof be questioned or denied by or on
behalf of the Mortgagor; that Mortgagor hereby
expressly grants to Mortgagee, and agrees that
Mortgagee shall have the absolute and immediate right
(but no obligation) to enter in and upon the Real
Property or any part thereof to such extent and as
often as Mortgagee, in its sole discretion, deems
necessary or desirable in order to prevent or to cure
any such default by Mortgagor; that Mortgagor shall
pay to Mortgagee, immediately and without deduction,
demand, offset or counterclaim, all sums paid by
Mortgagee pursuant to this section, with interest
thereon from the date of each such payment at the
Default Rate; and that, without limitation to any
other provision hereof, all sums so paid and expended
by Mortgagee, and the interest thereon, shall be
added to and be secured by the lien of this Mortgage.
Mortgagor agrees not to suffer or incur, or permit to
be suffered or incurred, any default on the part of
the tenant under the Air Rights Leases.
(d) Mortgagor agrees not to amend or modify in any
respect, or terminate or surrender, the Air Rights
Leases without the prior written consent of Mortgagee
being first had and obtained, which consent may be
given or withheld in Mortgagee's sole discretion. Any
such surrender of the leasehold estate under any Air
Rights Lease, or any part thereof, or any termination
of any Air Rights Lease, or any part thereof, or any
modification, amendment or supplement to any of the
Air Rights Leases without the prior written consent
of the Mortgagee shall be void and of no force or
effect.
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(e) Mortgagor agrees to furnish to Mortgagee copies of
any and all notices of default served on Mortgagor as
tenant by landlord, or upon Mortgagor as sublandlord
by any subtenant, under the Air Rights Leases and
such other notices as said landlord or subtenant may
serve on Mortgagor relating to any Air Rights Leases
or the terms and provisions thereof or operations by
Mortgagor thereunder.
(f) Notwithstanding any advances made by Mortgagee of any
monetary amounts required to be made by the tenant
under any Air Rights Leases, thus curing default
thereunder, non-payment by Mortgagor to Mortgagee of
such amount or amounts so advanced shall continue to
be and remain a default by Mortgagor hereunder,
unless and until such amounts are paid to Mortgagee.
(g) Mortgagor shall from time to time as may be
reasonably requested by Mortgagee furnish to
Mortgagee evidence of Mortgagor's performance as
tenant under the Air Rights Leases and substantiating
that the terms and provisions thereof to be kept and
performed by Mortgagor as tenant thereunder have been
duly performed.
(h) In the event the lessor's and lessee's interest under
any Air Rights Leases, or any interest therein, shall
be held by the same person, such interests shall not
merge but such fee ownership or interest therein
shall immediately become subject to the lien of this
Mortgage, and Mortgagor shall execute any instruments
Mortgagee may reasonably require to that end. In the
event that a merger shall for any reason be deemed or
otherwise adjudicated by a court of competent
jurisdiction to have occurred by virtue of the
acquisition by Mortgagor of the fee title to the
property covered by the Air Rights Leases, or
otherwise, then and in such event the lien of this
Mortgage shall automatically encompass and attach to
the fee title to such property and subject the fee
title to such property to this Mortgage. Mortgagor
will not divide or segregate into separate parcels
the Real Property or any part thereof without the
prior written consent of Mortgagee being first had
and obtained, which consent may be given or withheld
in Mortgagee's sole discretion.
(i) If the lessor under any of the Air Rights Leases
seeks to reject or disaffirm any of the Air Rights
Leases pursuant to any provisions of the Bankruptcy
Code and Mortgagee elects in its absolute discretion
to have Mortgagor exercise its right to remain in
possession under any legal or equitable right
Mortgagor may have to continue to occupy the premises
62
leased pursuant to any of the Air Rights Leases, then
Mortgagor shall remain in such possession and shall
perform all acts necessary for Mortgagor to retain
its right to remain in such possession for the
unexpired term of such Air Rights Leases (including
renewals thereof), whether such acts are required
under the then existing terms and provisions of such
Air Rights Leases; or otherwise, and all of the terms
and provisions of this Mortgage and the liens created
by this Mortgage shall remain in full force and
effect and shall be extended automatically to such
possession, occupancy and interest of Mortgagor.
Mortgagor shall not, without the Mortgagee's prior
written consent, elect to treat the Air Rights Leases
as terminated under Section 365(h)(i) (or any other
applicable section of the Bankruptcy Code), and any
such election made without Mortgagee's prior written
consent shall be void.
(j) If pursuant toss.365(h)(2) of the Bankruptcy Code,
the Mortgagor seeks to offset against the rent
reserved in the Air Rights Leases the amount of any
damages caused by the non-performance by the lessor
of any of the lessor's obligations under the Air
Rights Leases after the rejection by the lessor of
the Air Rights Leases under the Bankruptcy Code, the
Mortgagor shall, prior to effecting such offset,
notify the Mortgagee of its intention to do so,
setting forth the basis therefor. The Mortgagee shall
have the right to object to all or any part of such
offset, and, in the event of such objection, the
Mortgagor shall not effect any offset of the amounts
so objected to by the Mortgagee. If the Mortgagee has
failed to object as aforesaid within ten (10)
Business Days after notice from the Mortgagor in
accordance with the first sentence of this Section
24(b), the Mortgagor may proceed to effect such
offset in the amounts set forth in the Mortgagor's
notice. Neither the Mortgagee's failure to object as
aforesaid nor any objection or other communication
between the Mortgagee and the Mortgagor relating to
such offset shall constitute an approval of any such
offset by the Mortgagee. The Mortgagor shall
indemnify and save the Mortgagee harmless from and
against any and all claims, demands, actions, suits,
proceedings, damages, losses, cost and expenses of
every nature whatsoever (including, without
limitation, attorneys' fees and disbursements)
arising from or relating to any such offset by the
Mortgagor against the rent reserved in the Air Rights
Leases.
(k) Mortgagor shall promptly after obtaining knowledge
thereof notify the Mortgagee orally of any filing by
or against the
63
lessor under any of the Air Rights Leases of a
petition under the Bankruptcy Code. The Mortgagor
shall thereafter forthwith give written notice of
such filing to the Mortgagee, setting forth any
information available to the Mortgagor as to the date
of such filing, the court in which such petition was
filed, and the relief sought therein. The Mortgagor
shall promptly deliver to the Mortgagee following
receipt any and all notices, summonses, pleadings,
applications and other documents received by the
Mortgagor in connection with any such petition and
any proceedings relating thereto. Upon the occurrence
and during the continuance of a Default (a) the
Mortgagee shall have the option, to the exclusion of
the Mortgagor, exercisable upon notice from the
Mortgagee to the Mortgagor, to conduct and control
any such litigation with counsel of the Mortgagee's
choice and (b) the Mortgagee may proceed in its own
name or in the name of the Mortgagor in connection
with any such litigation, and the Mortgagor agrees to
execute any and all powers, authorizations, consents
and other documents required by the Mortgagee in
connection therewith. The Mortgagor shall pay to the
Mortgagee all costs and expenses (including, without
limitation, attorneys' fees and disbursements) paid
or incurred by the Mortgagee in connection with the
prosecution or conduct of any such proceedings within
ten (10) Business Days after notice from Mortgagee
setting forth such costs and expenses in reasonable
detail. Without limitation to any other provision
hereof, any such costs or expenses not paid by the
Mortgagor as aforesaid shall be secured by the lien
of this Mortgage and shall be added to the principal
amount of the indebtedness secured hereby. The
Mortgagor shall not commence any action, suit,
proceeding or case, or file any application or make
any motion, in respect of the Air Rights Leases in
any such case under the Bankruptcy Code without the
prior written consent of the Mortgagee provided,
however, that such consent shall not be unreasonably
withheld, conditioned or delayed if such action,
suit, proceeding, case, application or motion is for
the preservation and protection of the rights,
benefits and privileges benefiting or granted to the
Mortgagor, as tenant, or Mortgagee, as a leasehold
mortgagee, pursuant to such Air Rights Lease.
(l) If there shall be filed by or against the Mortgagor a
petition under the Bankruptcy Code, and the
Mortgagor, as the lessee under the Air Rights Leases,
shall determine to reject the Air Rights Leases
pursuant to Section 365(a) of the Bankruptcy Code,
then the Mortgagor shall give the
64
Mortgagee not less than ten (10) business days' prior
notice of the date on which the Mortgagor shall apply
to the bankruptcy court for authority to reject the
Air Rights Leases. The Mortgagee shall have the
right, but not the obligation, to serve upon the
Mortgagor within such 10-day period a notice stating
that (x) the Mortgagee demands that the Mortgagor
assume and assign the Air Rights Leases to the
Mortgagee pursuant to Section 365 of the Bankruptcy
Code and (y) the Mortgagee covenants to cure or
provide adequate assurance of future performance
under the Air Rights Leases. If the Mortgagee serves
upon the Mortgagor the notice described in the
preceding sentence, the Mortgagor shall not seek to
reject the Air Rights Leases and shall comply with
the demand provided for in clause (x) of the
preceding sentence.
(m) Effective upon the entry of an order for relief in
respect of the Mortgagor under the Bankruptcy Code,
the Mortgagor hereby assigns and transfer to the
Mortgagee a non-exclusive right to apply to the
Bankruptcy Court under ss. 365(d)(4) of the
Bankruptcy Code for an order extending the period
during which the Air Rights Leases may be rejected or
assumed.
(n) Simultaneous with Mortgagor's delivery thereof to the
landlord or subtenant under any Air Rights Lease,
Mortgagor shall provide Mortgagee with a copy of the
checks and cover correspondence, if any, pursuant to
which Mortgagor makes payment of the rent under any
of the Air Rights Leases.
25. SPLITTER OF INDEBTEDNESS AND LIENS
Upon request of Mortgagee, Mortgagor shall execute and deliver
(and shall cause any Carveout Guarantor, as applicable, to
execute and deliver) such agreements, instruments, affidavits,
consents, re-affirmations, financing statements, and other
documents and/or amendments thereto as Mortgagee may
reasonably request in order to effect the severance and
splitter of the Indebtedness evidenced by the Note and the
lien of this Mortgage and other Loan Documents, into two
separate indebtednesses and two separate liens, one made,
respectively, by 810 and the other made by 100, or their
respective successors or assigns, as the case may be, which
indebtednesses and liens shall be (x) cross-defaulted and
cross-collateralized, but shall be evidenced by separate
notes, mortgages and other Loan Documents and (y) in the
respective Designated Amount for the Real Property known as
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
respectively.
65
26. TENANT IMPROVEMENTS RESERVE
As additional security for the indebtedness secured hereby,
Mortgagor shall establish and maintain at all times while this
Mortgage continues in effect a reserve (the "Tenant
Improvement Reserve") with Mortgagee for the payment of costs
and expenses incurred by Mortgagor for Tenant Improvements and
Leasing Commissions relative to the space leased to the
Termination Rights Tenants (as hereinafter defined). All such
sums, together with any interest thereon, are hereinafter
collectively referred to as the "Funds". As used herein, the
term 'Tenant Improvements' shall mean construction or
modification of improvements and/or installation of fixtures
and/or equipment in the Property as required to be performed
or paid for by Mortgagor pursuant to the terms of any lease
which is hereafter entered into by Mortgagor and a tenant in
accordance with the terms and conditions of the Absolute
Assignment of Leases and Rents ("Approved Lease"), relative to
the space leased to new or replacement tenants of the space
currently demised to a Termination Rights Tenant following the
termination of any such lease with a Termination Rights
Tenant. As used herein, `Leasing Commissions' shall mean
reasonable and customary commissions paid to a real estate
broker licensed in New York (including those affiliated with
Mortgagor) in connection with an Approved Lease pursuant to a
commission agreement containing terms and provisions,
including, as to timing of payment of the commission, as are
then prevailing between third party unaffiliated brokers and
owners for comparable leases of space at similar properties in
the market area of the Property in question.
(a) Deposits Into the Tenant Improvement Reserve.
Mortgagor shall deposit or cause to be . deposited
into the Tenant Improvement Reserve any amounts paid
to Mortgagor as a termination fee or charge under the
leases with the following tenants (the "Termination
Rights Tenants") in connection with the exercise of
any such tenant's right to terminate its lease
pursuant to the terms thereof: BDM International;
Ikon Office Solutions; AT&T Wireless; Wausau
Insurance; National Geographic; GFI Group; MCI; First
Bank System; Waterhouse Securities; and Atlantic
Mutual. So long as no Default hereunder or under the
other Loan Documents has occurred, all sums in the
Tenant Improvement Reserve shall be held by Mortgagee
in the Tenant Improvement Reserve to reimburse
Mortgagor for the costs and expenses of Tenant
Improvements and Leasing Commissions as herein set
forth.
(b) Disbursements from the Tenant Improvement Reserve. So
long as no Default hereunder or under the other Loan
Documents has occurred, and to the extent Funds are
in the
66
Tenant Improvement Reserve, Mortgagee shall, within
ten (10) Business Days after receipt of a written
request from Mortgagor specifying the amount
requested and the applicable Tenant Improvements and
Leasing Commissions to be paid for with the requested
Funds ("Disbursement Request"), release to Mortgagor
Funds in the amount of the Disbursement Request;
subject, however, to the following conditions
precedent. Mortgagee shall not be required to make
(i) advances from the Tenant Improvement Reserve more
frequently than once in any thirty (30) day period,
provided, however, that Mortgagor shall be permitted
to make Disbursement Requests (and receive Funds)
more frequently provided any such additional
Disbursement Request is for more than $50,000.00; or
(ii) any disbursement which is less than $25,000.00;
or (iii) any disbursement from the Funds unless
Mortgagor has delivered to Mortgagee a fully executed
copy of the lease for the space which was previously
demised to a Termination Rights Tenant, certified by
Mortgagor to be true and complete. In making any
payment from the Tenant Improvement Reserve,
Mortgagee shall be entitled to rely on such request
from Mortgagor, and on any ▇▇▇▇, statement, or
estimate from any third party, without any inquiry
into the accuracy, validity or contestability of any
such amount.
(x) With respect to each Disbursement Request for Tenant
Improvements, Mortgagor shall provide evidence
reasonably satisfactory to Mortgagee that the Tenant
Improvements, or such portion thereof, for which the
Funds are being requested have been completed in
accordance herewith. Mortgagor shall submit to
Mortgagee copies of invoices for which Funds are
being requested and shall also submit waivers of lien
(which may be conditioned upon the payment being
requested by Mortgagor in such Disbursement Request).
Mortgagor shall execute and deliver to Mortgagee a
certificate (in form and substance reasonably
satisfactory to Mortgagee) that the Tenant
Improvements covered by the applicable Disbursement
Request comply with, and have fully satisfied, the
terms and provisions of hereof. Mortgagor shall
provide such additional documents, certificates and
affidavits of Mortgagor as Mortgagee may reasonably
request.
(y) With respect to the final Disbursement Request
relative to any Approved Lease, Mortgagor shall
provide Mortgagee with a copy of any and all
67
applicable temporary or permanent certificates of
occupancy if any be required, issued by applicable
governmental authorities which certificates allow the
tenant to open for business as contemplated under
such Lease and with an original certificate executed
by the Mortgagor for which such request relates,
stating that (1) such tenant has accepted the Tenant
Improvements, (2) such tenant has taken possession of
the space covered by the Tenant Improvements, (3) the
Lease is in full force and effect and has not been
modified or amended, (3) to the best of Mortgagor's
knowledge, tenant has not claims to offset, or
defenses to, the payment of rent thereunder, (4) to
the best of Mortgagor's knowledge, there are no
defaults under such Lease (nor does there exist any
event or conditions, which with the passage of time
or the giving of notice, or both, could result in
such a default), and (5) that there are no
concessions, allowances, credits, or rebates payable
or due to tenant except as expressly set forth in
such Lease and all such allowances, credits or
rebates payable or due to tenant in connection with
such Tenant Improvements have been paid.
Notwithstanding any provision of this Section to the contrary,
Funds disbursed with respect to any Approved Lease for Tenant
Improvements shall be an amount not to exceed, under any
circumstances, the actual costs and expenses actually incurred
by Mortgagor therefore.
(c) Mortgagor shall construct and complete all Tenant
Improvements to be performed by Mortgagor in
accordance with the terms and provisions of the
Approved Leases. Mortgagor or tenant shall pay for
and obtain or cause to be paid for and obtained all
permits, licenses and approvals required by all
applicable laws with regard to the Tenant
Improvements, whether necessary for commencement,
completion, use or otherwise. Mortgagor shall perform
or cause to be performed all work in connection with
the Tenant Improvements in a good and workmanlike
manner, in compliance with all applicable laws
(including, without limitation, any and all
applicable life safety laws, environmental laws and
laws for the handicapped and/or disabled) and with
the plans and specifications provided therefor, if
any, pursuant to the Approved Lease, which
performance by Mortgagor shall be without regard to
the sufficiency of the Funds. Mortgagor covenants and
agrees that Tenant Improvements shall be constructed,
installed or completed, as applicable, free and clear
of any and all liens (including
68
mechanic's, materialman's or other liens), claims and
encumbrances whatsoever.
(d) If, at any time, (i) the conditions to the final
Disbursement Request for all Approved Leases which
demise space relative to which any Termination Rights
Tenants have exercised their rights of termination
have been satisfied and (ii) there are Funds in the
Tenant Improvement Reserve which are in excess of the
amounts required to satisfy such final disbursement
request, then the balance of the Funds shall be
disbursed to Borrower concurrently with the payment
of such Final Disbursement Request.
(e) Notwithstanding any provision hereof to the contrary,
in no event shall Mortgagor have the obligation to
deposit any sums in the Tenant Improvement Reserve
other than termination fees paid by Termination
Rights Tenants in connection with the exercise of any
such tenant's rights to terminate its Lease pursuant
to the terms thereof.
69
IN WITNESS WHEREOF, Mortgagor has made and delivered this Mortgage under seal as
of the date first above written.
MORTGAGOR:
810 7TH AVE, LLC., a Delaware
limited liability company
By: METROPOLITAN ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ LLC,
a Delaware limited liability
company, its Managing Member
By: METROPOLITAN OPERATING
PARTNERSHIP, L.P., a Delaware
limited partnership, its Managing
Member
By: Metropolitan Partners LLC, a
Delaware limited liability company,
its General Partner
By: __________________________[SEAL]
Name:
Title:
100 WALL COMPANY LLC, a Delaware limited
liability company
By: 100 WALL MM LLC, a Delaware
limited liability company, its
Managing Member
By: METROPOLITAN OPERATING
PARTNERSHIP, L.P., a Delaware
limited partnership, its Managing
Member
By: Metropolitan Partners LLC, a
Delaware limited liability company,
its General Partner
By: _________________________ [SEAL]
Name:
Title:
[ Signatures continue on next page ]
[ Signature Page to Agreement
of Consolidation, Spreader and Modification
of Mortgage and Security Agreement ]
MORTGAGEE:
Monumental Life Insurance Company, a
Maryland corporation
By ____________________________
Name:
Title:
[ End of Signatures ]
EXHIBIT A
THE EXISTING MORTGAGES
1. Mortgage made by 810 Seventh Corp. to Bankers Trust Company, in the amount
of $20,000,000.00, dated February 21, 1969 and recorded on February 26,
1969 in Reel 132 Page 488.
(a) Assignment of Mortgage from Bankers Trust Company to the New
York State Teachers' Retirement System dated December 20, 1972
and recorded on December 22, 1972 in Reel 263 Page 39. Assigns
mortgage 1.
2. Leasehold Mortgage made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to K.A.T.H. Properties Corp., in
the amount of $244,500.00, dated June 22, 1971 and recorded on 6/24/71 in
Reel 208 Page 454.
(a) As corrected by Mortgage Correction Agreement dated as of
December 18, 1972 and recorded December 22, 1972 in Reel 263
Page 15.
(b) Assignment of Mortgage from K.A.T.H. Properties Corp. to New
York State Teachers' Retirement System dated December 19, 1972
and recorded on December 22, 1972 in Reel 263 Page 33. Assigns
mortgage 2.
3. Leasehold Mortgage made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to K.A.T.H. Properties Corp., in
the amount of $2,755,500.00, dated June 22, 1971 and recorded on June 24,
1971 in Reel 208 Page 462.
(a) As corrected by Mortgage Correction Agreement dated as of
December 18, 1972 and recorded December 22, 1972 in Reel 263
Page 21.
(b) Assignment of Mortgage from K.A.T.H. Properties Corp. to New
York State Teachers' Retirement System dated December 19, 1972
and recorded on December 22, 1972 in Reel 263 Page 27. Assigns
mortgage 3.
(c) Consolidation and Extension Agreement between 810 Seventh
Corp. and New York State Teachers' Retirement System dated as
of December 20, 1972 and recorded on
January 4, 1973 in Reel 264 page 513. Consolidates mortgage
nos. 1, 2 and 3 to form a single lien in the amount of
$23,000,000.00 and spreads said lien to cover the Air Rights
Lease recorded in Record Liber 294 Page 49, Record Liber 294
Page 70, Record Liber 185 Page 27 and Liber 4940 Page 609.
(d) Assignment of Mortgage from New York State Teachers'
Retirement System to Credit Suisse First Boston Mortgage
Capital LLC dated as of October 23, 1997 and recorded 4/15/98
in the Office of the City Register, New York County in Reel
2563 at Page 1085. Assigns mortgages 1 to 3, as consolidated.
4. Gap Mortgage made by 810 Partners LLC to Credit Suisse First Boston
Mortgage Capital LLC, in the amount of $49,465,508.29, dated as of October
23, 1997 and recorded 4/15/98 in the Office of the City Register, New York
County in Reel 2563 at Page 1093.
(a) Mortgage Consolidation, Modification and Extension Agreement
between Credit Suisse First Boston Mortgage Capital LLC and
810 Partners LLC dated as of 10/23/97 and recorded 4/15/98 in
the Office of the City Register, New York County in Reel 2563
at Page 1101. Consolidates mortgages nos. 1 to 4 into one lien
of $60,000,000.00.
5. Gap Mortgage made by ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇. to Credit Suisse First Boston
Mortgage Capital LLC in the amount of $40,000,000.00, dated December 31,
1997 and recorded July 9, 1998 in the Office of the City Register, New York
County in Reel 2615 at Page 1780.
6. Mortgage Consolidation, Modification, Extension and Security Agreement
between Credit Suisse First Boston Mortgage Capital LLC and ▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
L.P. dated as of December 31, 1997 and recorded July 9, 1998 in the Office
of the City Register, New York County in Reel 2615 at Page 1793.
Consolidates mortgages nos. 1 to 5 into one lien of $100,000,000.00.
Which mortgage was assigned by Credit Suisse First Boston Mortgage
Capital LLC to Norwest Bank Minnesota, National Association, As Trustee
Under The Pooling and Servicing Agreement Dated June 12, 1998 For The
Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1998-FL1 (successor in
interest to Credit Suisse First Boston Mortgage Capital LLC, a Delaware
limited liability company) dated
June 29, 1998 and recorded on April 7, 1999 in the Office of the City
Register, New York County in Reel 2850 at Page 2380. Assigns mortgages
nos. 1 to 5 as consolidated by mortgage consolidation no. 6.
Which mortgage was further assigned by Norwest Bank Minnesota, National
Association, as trustee to Fleet National Bank, a national banking
association, as administrative agent, by Assignment of Mortgage dated
February 23, 1999 and recorded on April 7, 1999 in the Office of the
City Register, New York County in Reel 2850 at Page 2393. Further
assigns mortgages nos. 1 to 5 as consolidated by mortgage consolidation
no. 6.
7. Which mortgage was amended and restated by a certain Amended and Restated
Mortgage Agreement by Tower Realty Operating Partnership, L.P., a Delaware
limited partnership, in favor of Fleet National Bank, a national banking
association, as administrative agent, dated as of March 1, 1999 and
recorded April 7, 1999 in the Office of the City Register, New York County
in Reel 2850 at Page 2413. Amends and restates mortgages nos. 1 to 5 as
consolidated by mortgage consolidation no. 6.
8. Assignment of Mortgage from Fleet National Bank, as administrative agent,
to UBS AG, Stamford Branch, as administrative agent, dated as of May 20,
1999, and recorded on June 16, 1999 in Reel 2894, Page 1786. Assigns
mortgages 1 to 7.
9. Assignment of Mortgage from USB AG, Stamford Branch, as administrative
agent, to Monumental Life Insurance Company, dated July 23, 1999 and
intended to be recorded immediately following the execution and delivery
hereof.
10. Mortgage (Fee and Leasehold) made by Metropolitan ▇▇▇ ▇▇▇ ▇▇▇, LLC and 100
Wall Company, LLC to Monumental Life Insurance Company, in the amount of
$65,000,000.00, dated July 23, 1999 and intended to be recorded immediately
following the recordation of the Assignment described in No. 9 above.
EXHIBIT B
Property Description
Exhibit B-1: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Exhibit B-2: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
[ Exhibits follow this page ]
Exhibit B-1
(810 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇)
▇▇▇ ▇▇
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded and described
as follows:
BEGINNING at a point on the northerly side of West 52nd Street opposite the
center of a certain party wall standing partly on the premises and partly on the
premises adjoining on the easterly side thereof, which point is distant 74 feet
4 inches westerly from the northwesterly corner of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇; and
RUNNING THENCE northerly parallel with the westerly side of Seventh Avenue and
for part of the distance through the center of said party wall, 75 feet 5
inches;
THENCE easterly and parallel with the said northerly side of West 52nd Street,
74 feet 3-3/4 inches to the westerly side of Seventh Avenue;
THENCE northerly along the said westerly side of Seventh Avenue, 125 feet 5
inches to the corner formed by the intersection of the said westerly side of
Seventh Avenue and the southerly side of West ▇▇▇▇ ▇▇▇▇▇▇;
THENCE westerly along the said southerly said of West 53rd Street, 195 feet
2-3/8 inches to the intersection of the said southerly side of West ▇▇▇▇ ▇▇▇▇▇▇
and the easterly side of Broadway;
THENCE southerly along the said easterly side of Broadway, 126 feet 1-1/2 inches
more or less, to a point in a line parallel to the northerly side of West 52nd
Street, 75 feet 5 inches northerly therefrom measured on a line at right angles
to the northerly side of West 52nd Street;
THENCE easterly parallel with the said northerly side of West 52nd Street, 69
feet 11 inches;
THENCE southerly at right angles to the said northerly side of West 52nd Street,
75 feet 5 inches to the said northerly side of West 52nd Street, and
THENCE easterly along the said northerly side of West 52nd Street, 37 feet 7
inches to the point or place of BEGINNING.
SCHEDULE B- 1 (CONT.)
AIR RIGHTS LOT 29:
The Air Rights Lease of Lot 29 covers premises more particularly bounded and
described as follows:
ALL that certain lot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York bounded and described
as follows:
BEGINNING at a point formed by the intersection of the northerly side of West
52nd Street with the westerly side of Seventh Avenue; and
RUNNING THENCE westwardly along the northerly side of West 52nd Street, 74 feet
4 inches to a point opposite the center line of a 16 inch party wall;
THENCE northwardly parallel with Seventh Avenue and part of the distance through
the center of said party wall, 75 feet 5 inches;
THENCE eastwardly parallel with West 52nd Street, 74 feet 4 inches to the
westerly side of Seventh Avenue; and
THENCE southwardly along the westerly side of Seventh Avenue, 75 feet 5 inches
to the point or place of BEGINNING.
SCHEDULE B - 1
LOT 131:
The Air Rights Lease of Lot 131 covers premises more particularly bounded and
described as follows:
ALL that certain lot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the northerly side of ▇▇▇▇
▇▇▇▇▇▇ with the easterly side of Broadway as now laid down;
RUNNING THENCE easterly along the northerly side of 52nd Street, 61 feet 10
inches to the center line of the westerly wall of building erected in the
premises adjoining on the east of the premises hereby described;
RUNNING THENCE northerly parallel with the westerly side of Seventh Avenue and
along said line of said wall and a line in prolongation thereof, 75 feet 5
inches;
RUNNING THENCE westerly parallel with the northerly side of 52nd Street, 69 feet
11 inches to the said easterly side of Broadway; and
RUNNING THENCE southerly along the easterly side of Broadway, 75 feet 11 inches
to the point or place of BEGINNING.
BE said several distances and dimensions more or less.
SCHEDULE B-2
(100 WALL STREET)
PARCEL I - LOT 1:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the northerly side of Wall
Street and the westerly side of Front Street;
THENCE northerly along the said westerly side of Front Street, 196 feet 6-1/2
inches to the corner formed by the intersection of the westerly side of Front
Street with the southerly side of Pine Street (now discontinued and closed);
THENCE westerly along the said southerly side of Pine Street, 113 feet 3-3/8
inches to the corner formed by the intersection of the southerly side of former
Pine Street with the easterly side of Water Street;
THENCE southerly along the said easterly side of Water Street, 195 feet 0-5/8
inches to the corner formed by the intersection of the said easterly side of
Water Street with the northerly side of Wall Street;
THENCE easterly along the northerly side of Wall Street, 117 feet 3 inches to
the point or place of BEGINNING.
Be the said several distances and dimensions more or less.
SCHEDULE B - CONTINUED
PARCEL II - PART OF LOT 17:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the easterly side of Water
Street with the southerly side of Pine Street as these streets are shown on a
map dated 4/6/70 and approved by the Board of Estimate on 7/23/70, Calendar #8;
RUNNING THENCE northerly along the northerly prolongation of the said easterly
side of Water Street a distance of 12.18 feet to the center line of Pine Street
(now discontinued and closed);
THENCE easterly along the said center line of Pine Street, forming an interior
angle of 99 degrees 31 minutes 58 seconds with the last mentioned course, a
distance of 112.25 feet to the southerly prolongation of the westerly side of
Front Street as shown on a map approved by the Board of Estimate on March 12,
1970, Calendar #37;
THENCE southerly along the said southerly prolongation of Front Street, forming
an interior angle of 80 degrees 40 minutes 42 seconds with the last mentioned
course, a distance of 12.33 feet to the southerly side of Pine Street;
THENCE westerly along the said southerly side of former Pine Street, forming an
interior angle of 99 degrees 15 minutes 37 seconds with the last mentioned
course, a distance of 112.06 feet to the point or place of BEGINNING.
EXHIBIT C
Permitted Exceptions
As to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Only:
1. Distinctive Street Improvement Maintenance Declaration made by 810
Associates and approved by the Department of Transportation, Bureau of
Highway Operation, dated April 18, 1985 recorded July 11, 1985 in Reel
935 Page 611. (Affects lot 38)
2. Distinctive Sidewalk Improvement Maintenance Agreement made by 810
Associates and approved by the Department of Transportation and Acting
Corporation Counsel, dated August 21, 1991, recorded August 23, 1991 in
Reel 1807 Page 622. (Affects lot 38).
3. Terms, covenants, restrictions, provisions and agreements contained in
the Lease between ▇▇▇▇▇ ▇▇▇▇▇▇▇, as lessor and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as
lessee, dated March 28, 1967, recorded May 13, 1981 in Reel 566 Page
39, with Memorandum of Lease recorded May 29, 1967 in Record Liber 185
Page 27. (Covers the Air Rights over Lot 29).
With Regard Thereto:
a. Agreement [re Lot 38 rent payment covenant from Lot 29 Air
Rights] between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, dated March
28, 1967 and recorded May 29, 1967 in Record Liber 185 Page 44
and on May 13, 1981 in Reel 566 Page 88.
b. Assignment of Lease made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to Croydon Office
Building, Inc., dated 2/21/69 recorded 2/29/69 in Reel 132
Page 394.
c. Assignment of Lease made by Croydon Office Building, Inc. to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ dated 2/21/69 recorded 2/267/69 in Reel 132
Page 583.
d. Assignment of Lease made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to Croydon Office
Building, Inc., dated 9/9/69 recorded 9/12/69 in Reel 150 Page
1951.
e. Assignment of Lease made by Croydon Office Building, Inc. to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated 9/10/69 recorded 6/16/69 in Reel 151
Page 425.
f. Assignment of Leases from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, as
Trustees of the Trust Under Article Fifth of the Will of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC dated
September 22, 1995 and recorded December 15, 1995 in Reel 2271
Page 2237.
g. Assignment of Air Rights Lease from ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC to
810 Partners, LLC, dated 10/23/1997, and recorded 4/15/98 in
Reel 2563 Page 1074.
h. Assignment and Assumption of Air Rights Lease made by 810
Partners LLC to Bhone Inc., dated 12/31/97 and recorded 7/9/98
in Reel 2615 Page 1868.
i. Assignment and Assumption of Air Rights Lease made by 810
Partners LLC and Bhone Inc. to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, L.P., dated
12/31/97 and recorded 7/9/98 in Reel 2615 Page 1762.
j. Assignment and Assumption of Air Rights Lease made by ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇.▇. to Tower Realty OperatingPartnership, L.P. dated
3/1/1999 and recorded 4/7/1999 in Reel 2850 Page 2365.
k. Conveyance of Leasehold Interest made by Metropolitan
Operating Partnership L.P. as successor by merger with Tower
Realty Operating Partnership L.P. to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ L.P.,
dated 5/24/ 1999 and recorded on 6/16/1999 in Reel 2894 Page
1805.
l. Assignment and Assumption of Air Rights Lease made by ▇▇▇ ▇▇▇
▇▇▇▇▇▇ L.P. to Metropolitan ▇▇▇ ▇▇▇ ▇▇▇ LLC, dated as of and
to be recorded in the Office of the New York City Register,
New York County.
4. Terms, covenants, restrictions, provisions and agreements contained in
Agreement of Lease between Chatham Associates, Inc., as landlord and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as tenant, dated April 10, 1968 and recorded April 11,
1968 in Record Liber 294 Page 49. (Covers the Air Rights over Lot 131).
With Regard Thereto:
a. Amendment of Lease made between Chatham Associates, Inc. and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated as of 2/13/69 recorded 2/25/69 in Reel
132 Page 171.
b. Assignment of Lease made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to Croydon Office
Building, Inc., dated 2/21/69 recorded 2/26/69 in Reel 132
Page 390.
c. Assignment of Lease made by Croydon Office Building Inc. to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated 2/21/69 recorded 2/26/69 in Reel 132
Page 587.
d. Subordination and Non-disturbance Agreement made between
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, Inc., Chatham Associates, Inc. and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated 2/26/69 recorded 2/28/69 in Reel 132
Page 1276.
e. Assignment of Lease made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to Croydon Office
Building, Inc., dated 9/9/69 recorded 9/12/69 in Reel 150 Page
1947.
f. Assignment of Lease made by Croydon Office Building, Inc. to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated 9/10/69 recorded 9/16/69 in Reel 151
Page 421.
g. Assignment of Leases made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
as Trustees of the Trust under Article Fifth of the Land Will
and Testament of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ to ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, LLC dated 9/22/95 recorded 12/15/95 in Reel 2271 Page
2237.
h. Assignment of Air Rights Lease from ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC to
810 Partners LLC, dated 10/23/97, and recorded 4/15/98 in Reel
2563 Page 1078.
i. Assignment and Assumption of Air Rights Lease made by 810
Partners LLC to Bhone Inc., dated 12/31/97 and recorded 7/9/98
in Reel 2615 Page 1876.
j. Assignment and Assumption of Air Rights Lease made by 810
Partners LLC and Bhone Inc. to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, L.P., dated
12/31/97 and recorded 7/9/98 in Reel 2615 Page 1771.
k. Assignment and Assumption of Air Rights Lease made by ▇▇▇ ▇▇▇
▇▇▇▇▇▇ L.P. to Tower Realty OperatingPartnership L.P. dated
3/1/1999 and recorded 4/7/1999 in Reel 2850 Page 2372.
l. Conveyance of Leasehold Interest made by Metropolitan
Operating Partnership L.P. as successor by merger with Tower
Realty Operating Partnership L.P. to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ L.P.,
dated 5/24/1999 and recorded on 6/16/1999 in Reel 2894 Page
1805.
m. Assignment and Assumption of Air Rights Lease made by ▇▇▇ ▇▇▇
▇▇▇▇▇▇ L.P. to Metropolitan ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇, dated as of
_____________ and to be recorded in the Office of the New York
City Register, New York County.
As to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Only:
1. Agreement dated as of 8/18/1970 between Associated Maritime Industries
Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ d/b/a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, recorded on 8/26/1970 in Reel 182 Page 883.
2. Amended Agreement dated as of 6/5/1970 between Associated Maritime
Industries Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ d/b/a ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and The City of New York,
recorded on 9/8/1970 in Reel 183 Page 701.
3. Joint Operating Agreement dated 3/28/1969 by and between ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ d/b/a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company and Associated
Maritime Industries Inc., recorded on 4/8/1969 in Reel 136 Page 374.
1) Amendment dated as of 5/15/1970 between said parties, recorded
on 11/27/1970 in Reel 174 Page
929.
2) Amendment dated as of 12/28/1970 by and between ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ d/b/a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company and
Orient Overseas Building Corp. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Associates, recorded on 1/26/1971 in Reel 194 Page
1080.
4. Covenants contained in deed from the City of New York to One Hundred
Wall Street Corporation, dated 6/30/1966 and recorded on 8/31/1966 in
Record Liber 97 Page 396.
5. Grant of Easement dated 7/8/1970 between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and The
City of New York, recorded on 1/6/1971 in Reel 192 Page 1898.
6. Distinctive Sidewalk Improvement Maintenance Agreement dated 11/14/1990
made by ▇▇▇▇▇▇▇ & Wakefield (Agent for owner, CGR Advisors), recorded
on 2/28/991 in Reel 1765 Page 1742.
7. Terms, Covenants, Conditions and Provisions of the Lease made by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ d/b/a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates (lessor) and Orient Overseas
Building Corp. (lessee), a memorandum of which was dated 12/24/70,
recorded 1/26/71 in Reel 194 Page 1048. (Affects Lot 17 only).
8. Terms, Covenants, Conditions and Provisions of the Lease between
Associated Maritime Industries, Inc., as landlord and Orient Overseas
Associates, as tenant, dated 5/22/70, a memorandum of which was
recorded on 5/27/70 in Reel 174 Page 949, which affects only the
leasehold on Parcel II (Lot 17 only) by virtue of terms, covenants,
conditions and agreements contained in Agreement between Orient
Overseas Building Corp. and Orient Overseas Associates, dated 1/15/71
and recorded 1/26/71 in Reel 194 Page 1123.
With Respect Thereto:
a. Assignment of Lease dated 12/10/70 from Orient Overseas
Associates to 88 Pine Corp., recorded on 12/16/70 in Reel 191
Page 538.
b. Assignment of Lease dated 12/10/70 from 88 Pine Corp. to
Orient Overseas Associates, recorded on 12/16/70 in Reel 191
Page 543.
c. Assignment of Lease dated as of 1/12/71 from Orient Overseas
Associates to 88 Pine Corp., recorded on 1/13/71 in Reel 193
Page 1138.
d. Assignment of Lease dated as of 1/12/71 from 88 Pine Corp. to
Orient Overseas Associates, recorded on 1/13/71 in Reel 193
Page 1133.
e. Assignment of Lease dated 2/9/71 from Orient Overseas
Associates to 88 Pine Corp., recorded on 2/10/71 in Reel 196
Page 453.
f. Assignment of Lease dated 11/1/13 from 88 Pine Corp. to Orient
Overseas Associates, recorded on 11/7/73 in Reel 296 Page
1506.
9. Possible private and public easements within the bed of former Pine
Street for the purposes of access, the supplying of water, telephone
service, electricity and gas, and for the installing, maintaining and
replacing of cables, sewers, conduits, pipes and mains. (Affects Lot
17).
EXHIBIT D
Reserved
EXHIBIT E
Reserved
EXHIBIT F
Air Rights Leases
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
LOT 29
That certain Lease dated March 28, 1967 by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇, as lessor
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as lessee, recorded May 13, 1981 in Reel 566, Page 39, a
memorandum of which was recorded on May 29, 1967 in the City Register's Office,
New York County (the "Register's Office") in Record Liber 185, Page 27.
WITH RESPECT THERETO:
a. Agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, dated
March 28, 1967 and recorded May 29, 1967 in the Register's
Office in Record Liber 185, Page 44; and on May 13, 1981 in
Record Liber 566, Page 88.
b. Assignment of Lease made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to Croydon Office
Building, Inc., dated February 21, 1969 and recorded February
29, 1969 in the Register's Office in Reel 132, Page 394.
c. Assignment of Lease made by Croydon Office Building, Inc. to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated February 21, 1969 and recorded February
26, 1969 in the Register's Office in Reel 132, Page 583.
d. Assignment of Lease made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to Croydon Office
Building, Inc., dated September 9, 1969 and recorded September
12, 1969 in the Register's Office in Reel 150, Page 1951.
e. Assignment of Lease made by Croydon Office Building, Inc. to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 10, 1969 and recorded June 16,
1969 in the Register's Office in Reel 151, Page 425.
f. Assignment of Lease made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇,
as Trustees of the Trust under Article Fifth of the Will of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇ ▇▇▇▇▇▇ to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC,
dated September 22, 1995 and recorded December 15, 1995 in the
Register's Office in Reel 2271, Page 2237.
g. Assignment of Air Rights Lease from ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC to
810 Partners, LLC, dated October 23, 1997 and recorded April
15, 1998, in the Register's Office in Reel 2563 Page 1074.
h. Assignment and Assumption of Air Rights Lease made by 810
Partners LLC to Bhone Inc., dated December 31, 1997 and
recorded July 9, 1998 in Reel 2615 Page 1868.
i. Assignment and Assumption of Air Rights Lease made by 810
Partners LLC and Bhone Inc. to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, L.P., dated
December 31, 1997 and recorded July 9, 1998 in Reel 2615 Page
1762.
j. Assignment and Assumption of Air Rights Lease from ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇.▇. to Tower Realty Operating Partnership, dated
March 1, 1999 and recorded in the Register's Office on April
7, 1999 in Reel 2850, Page 2365.
k. Assignment of Air Rights Lease by operation of deed from
Metropolitan Operating Partnership, L.P., successor by merger
to Tower Realty Operating Partnership, L.P., to ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇.▇. dated May 24, 1999 and to be recorded in the
Register's Office.
That certain Sublease dated October 19, 1955 by and between ▇▇▇▇▇
▇▇▇▇▇▇▇, as lessor and 800 Estates Corp., as lessee, which lease was
recorded on May 31, 1981 in Reel 566, Page 9, and Agreement (Memorandum
of Lease) dated October 19, 1955, recorded on November 2, 1955 in the
City Register's Office, New York County (the "Register's Office") in
Record Liber 4940, Page 609 and Reel 566, Page 36.
WITH RESPECT THERETO:
A. Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
800 Estates Corp., dated March 28, 1967 and recorded
May 29, 1967 in the Register's Office in Record Liber
185, Page 30.
B. Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and
800 Estates Corp., dated Mach 28, 1967 and recorded
May 13, 1981 in the Register's Office in Reel 566,
Page 1.
C. Amendment of Lease dated March 28, 1967 by and
between 800 Estates Corp. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ recorded
May 13, 1981 in Reel 566, Page 95.
D. Assignment of Lease made by 800 Estates Corp. to
Tydel Holding Corp. dated May 5, 1981 and recorded
May 22, 1981 in the Register's Office in Reel 567,
Page 507.
E. Amendment to Lease made by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee under Article Fifth
of the Last Will and Testament of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustees under
Article Ninth of the Last will and Testament of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and Tydel Holding Corp., dated
April 17, 1986 and recorded May 28, 1986 in the
Register's Office in Reel 1069, Page 817.
Sublease between ▇▇▇▇▇ ▇▇▇▇▇▇▇, as lessor and 800 Estates Corp., as lessee dated
October 19, 1955 and recorded May 13, 1981 in Reel 566 Page 9, and Agreement
(Memorandum of Lease) dated October 19, 1955, recorded November 2, 1955 in Liber
4940 Page 609 and Reel 566 Page 36 (Lot 29 improvements)
a. Agreement restricting height of the building at ▇▇▇-▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and 800
Estates Corp., dated March 28, 1967 and recorded May 29, 1967
in Record Liber 185 Page 30.
b. Terms, provisions of an Attornment and Non-Disturbance and
Consent to Sublease Amendment Agreement made by ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ dated 3/28/67 recorded
5/13/81 in Reel 566 Page 1.
c. Amendment of (Sub)lease (and subordination of Sublease to Air
Rights Lease) between 800 Estates Corp. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
dated 3/28/67 and recorded 5/13/81 in Reel 566 Page 95.
d. Assignment of Lease made by 800 Estates Corp., Assignor to
Tydel Holding Corp., Assignee, dated 5/5/81 recorded 5/22/81
in Reel 567 Page 507.
e. Amendment to Lease made by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustees under Article Fifth of the Last
Will and Testament of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Trustee under Article Ninth of the Last
Will and Testament of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Tydel Holding Corp.,
dated 4/17/86 recorded 5/28/86 in Reel 1069 Page 817.
LOT 131
That certain Lease dated April 10, 1968 by and between Chatham Associates, Inc.,
as landlord and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as tenant, which lease was recorded on April 11,
1968 in the City Register's Office, New York County (the "Register's Office") in
Record Liber 294, Page 49.
WITH RESPECT THERETO:
a. Amendment of Lease made between Chatham Associates, Inc. and ▇▇▇▇▇▇▇
▇▇▇▇▇▇, dated as of February 13, 1969 and recorded February 25, 1969 in
the Register's Office in Reel 132, Page 171.
b. Assignment of Lease made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to Croydon Office Building,
Inc., dated February 21, 1969 and recorded February 26, 1969 in the
Register's Office in Reel 132, Page 390.
c. Assignment of Lease made by Croydon Office Building, Inc. to ▇▇▇▇▇▇▇
▇▇▇▇▇▇, dated February 21, 1969 and recorded February 26, 1969 in the
Register's Office in Reel 132, Page 587.
d. Subordination and Non-disturbance Agreement made between ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇, Inc., Chatham Associates, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated
February 26, 1969, and recorded February 28, 1969 in Reel 132, Page
1276.
e. Assignment of Lease made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to Croydon Office Building,
Inc., dated September 9, 1969 and recorded September 12, 1969 in the
Register's Office in Reel 150, Page 1947.
f. Assignment of Lease made by Croydon Office Building, Inc. to ▇▇▇▇▇▇▇
▇▇▇▇▇▇, dated September 10, 1969 and recorded September 16, 1969 in the
Register's Office in Reel 151, Page 421.
g. Assignment of Lease made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, as
Trustees of the Trust under Article Fifth of the Will of ▇▇▇▇▇▇▇
▇▇▇▇▇▇, and ▇▇▇ ▇▇▇▇▇▇ to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC, dated September 22,
1995 and recorded December 15, 1995 in the Register's Office in Reel
2271, Page 2237.
h. Assignment of Air Rights Lease from ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC to 810
Partners, LLC, dated October 23, 1997 and recorded April 15, 1998 in
the Register's Office in Reel 2563, Page 1078.
i. Assignment and Assumption of Air Rights Lease made by 810 Partners LLC
to Bhone Inc., dated December 31, 1997 and recorded July 9, 1998 in
Reel 2615, Page 1876
j. Assignment and Assumption of Air Rights Lease from 810 Partners, LLC
and Bhone Inc., to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, L.P., dated December 31, 1997 and
recorded July 9, 1998 in the Register's office in Reel 2615, Page 1771.
k. Assignment and Assumption of Air Rights Lease from ▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
L.P., to Tower Realty Operating partnership, dated March 1, 1999 and
recorded in the Register's Office on April 7, 1999, in Reel 2850, Page
2372.
l. Together with Lessor's interest in Agreement of Sublease of Air Rights
Lot 131, made by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Sublandlord, and
Chatham Associates, Inc., as subtenant, dated April 10, 1968 as
referenced in the Memorandum of Lease recorded April 11, 1968 in Liber
294, Page 70.
m. Assignment of Air Rights Lease by operation of deed from Metropolitan
Operating Partnership, L.P., successor by merger to Tower Realty
Operating Partnership, L.P.. to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇. dated May 24, 1999
and to be recorded in the Register's Office.
That certain Sublease of Air Rights Lot 131 dated April 10, 1968 by and between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as sublandlord and Chatham Associates, Inc., as subtenant, a
memorandum of which lease was recorded in the City Register's Office, New York
County on April 11, 1968 in Record Liber 294, Page 70.
METROPOLITAN 810 7th AVE, LLC AND 100 WALL COMPANY LLC,
MORTGAGOR,
AND
MONUMENTAL LIFE INSURANCE COMPANY,
MORTGAGEE
------------------------------------------------------------------------------
AGREEMENT OF SPREADER, CONSOLIDATION AND MODIFICATION OF MORTGAGE
AND SECURITY AGREEMENT
------------------------------------------------------------------------------
DATED: AS OF JULY __, 1999
THIS INSTRUMENT AFFECTS REAL AND PERSONAL PROPERTY SITUATED IN THE STATE OF NEW
YORK, COUNTY OF NEW YORK, SECTION ___, BLOCK 1024, ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ___,
▇▇▇▇▇ ▇▇, ▇▇▇▇ 1 AND P/O 17, RESPECTIVELY, KNOWN BY THE STREET ADDRESS OF ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ AND ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, AND WITH RESPECT TO THE AIR
RIGHTS LEASES, SECTION ____, BLOCK 1024, AND LOTS 29 AND 131. AS STATED IN
SECTION 4.18 HEREOF, SAID REAL PROPERTY IS NOT PRINCIPALLY IMPROVED OR TO BE
IMPROVED BY ONE OR MORE STRUCTURES CONTAINING IN THE AGGREGATE NOT MORE THAN SIX
RESIDENTIAL DWELLING UNITS, EACH HAVING ITS OWN COOKING FACILITIES.
THIS AGREEMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS AND IS ALSO
TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS UNDER THE NAMES OF MORTGAGOR,
AS "DEBTOR", AND MORTGAGEE, AS "SECURED PARTY".