United States Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-Q
(Mark One)
X Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Quarterly Period Ended September 30, 1996
or
Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Transition period from ______ to ______
Commission File Number: 0-15463
MENDIK REAL ESTATE LIMITED PARTNERSHIP
Exact Name of Registrant as Specified in its Charter
New York 11-2774249
State or Other Jurisdiction I.R.S. Employer
of Incorporation or Organization Identification No.
3 World Financial Center, 29th Floor,
New York, NY Attn: Andre Anderson 10285
Address of Principal Executive Offices Zip Code
(212) 526-3237
Registrant's Telephone Number, Including Area Code
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No ____
Consolidated Balance Sheets At September 30, At December 31,
1996 1995
Assets
Real estate investments:
Land $ 27,137,084 $ 27,137,084
Buildings and improvements 218,706,016 214,497,059
245,843,100 241,634,143
Less accumulated depreciation (65,208,257) (58,172,619)
180,634,843 183,461,524
Cash and cash equivalents 2,676,134 4,673,561
Restricted cash 934,502 1,065,455
U.S. Treasuries and Agencies 2,040,532 2,458,794
Rent and other receivables (net of
allowance for doubtful accounts of
$183,620 in 1996 and $150,880 in 1995) 1,356,741 938,101
Deferred rent receivable 11,233,357 9,597,899
Other assets, net of accumulated amortization
of $8,451,247 in 1996 and $6,513,970 in 1995 11,790,272 10,818,003
Total Assets $210,666,381 $213,013,337
Liabilities and Partners' Capital
Liabilities:
Accounts payable and accrued expenses $ 2,721,069 $ 1,816,543
Deferred income 6,742,875 7,530,747
Due to affiliates 2,266,228 2,650,348
Security deposits payable 934,502 1,065,455
Accrued interest payable 703,903 621,854
Mortgages payable 70,223,285 70,044,524
Notes payable to affiliates 2,230,000 2,230,000
Total Liabilities 85,821,862 85,959,471
Minority interest 39,883,555 40,388,146
Partners' Capital (Deficit):
General Partners (17,048) ---
Special Limited Partner --- ---
Limited Partners (395,169 units outstanding) 84,978,012 86,665,720
Total Partners' Capital 84,960,964 86,665,720
Total Liabilities and Partners' Capital $210,666,381 $213,013,337
Consolidated Statement of Partners' Capital (Deficit)
For the nine months ended September 30, 1996
Special
Limited General Limited
Partners Partners Partner Total
Balance at December 31, 1995 $86,665,720 $ --- $ --- $ 86,665,720
Net loss (1,687,708) (17,048) --- (1,704,756)
Balance at September 30, 1996 $84,978,012 $(17,048) $ --- $ 84,960,964
Consolidated Statements of Operations
Three months ended Nine months ended
September 30, September 30,
1996 1995 1996 1995
Income
Rent $9,726,397 $8,641,636 $26,703,367 $24,694,927
Interest 17,361 55,402 134,541 138,639
Total Income 9,743,758 8,697,038 26,837,908 24,833,566
Expenses
Property operating 5,212,057 5,296,717 15,171,839 14,697,423
Depreciation and amortization 2,791,631 2,558,628 8,131,046 7,591,644
Interest 1,821,107 2,048,498 5,393,089 6,770,643
General and administrative 87,655 87,047 351,281 281,163
Total Expenses 9,912,450 9,990,890 29,047,255 29,340,873
Loss before minority interest
and extraordinary item (168,692) (1,293,852) (2,209,347) (4,507,307)
Minority interest in loss of
consolidated venture (31,211) 333,902 504,591 907,681
Loss before
extraordinary item (199,903) (959,950) (1,704,756) (3,599,626)
Extraordinary Item
Gain on retirement of debt --- --- --- 16,247,734
Net Income (Loss) $(199,903) $(959,950) $(1,704,756) $12,648,108
Net Income (Loss) Allocated:
To the General Partners $ (1,999) $ (9,600) $ (17,048) $ 1,477,496
To the Special Limited Partner --- --- --- 471,998
To the Limited Partners (197,904) (950,350) (1,687,708) 10,698,614
$(199,903) $(959,950) $(1,704,756) $12,648,108
Per limited partnership unit
(395,169) outstanding:
Net loss before
extraordinary item $(0.50) $(2.41) $(4.27) $(9.02)
Net Income (Loss) $(0.50) $(2.41) $(4.27) $27.07
Consolidated Statements of Cash Flows
For the nine months ended September 30, 1996 1995
Cash Flows From Operating Activities
Net income (loss) $(1,704,756) $12,648,108
Adjustments to reconcile net income (loss) to net cash
provided by (used for) operating activities:
Depreciation and amortization 8,131,046 7,591,644
Minority interest in loss of consolidated venture (504,591) (907,681)
Gain on retirement of debt --- (16,247,734)
Increase (decrease) in cash arising from changes in
operating assets and liabilities:
Restricted cash 130,953 1,076,427
U.S. Treasuries and Agencies 418,262 ---
Rent and other receivables (418,640) (310,925)
Deferred rent receivable (1,635,458) (248,297)
Other assets (2,069,944) (2,361,197)
Accounts payable and accrued expenses (458,549) (273,499)
Deferred income (787,872) ---
Due to affiliates (384,120) (386,155)
Security deposits payable (130,953) (133,900)
Accrued interest payable 82,049 671,542
Net cash provided by operating activities 667,427 1,118,333
Cash Flows From Investing Activities
Additions to real estate assets (4,206,690) (3,053,314)
Accounts payable - real estate assets 1,363,075 (1,680,688)
Net cash used for investing activities (2,843,615) (4,734,002)
Cash Flows From Financing Activities
Proceeds from mortgage and notes payable 178,761 2,113,688
Payments of principal on notes payable --- (1,750,000)
Net cash provided by financing activities 178,761 363,688
Net decrease in cash and cash equivalents (1,997,427) (3,251,981)
Cash and cash equivalents, beginning of period 4,673,561 8,347,080
Cash and cash equivalents, end of period $ 2,676,134 $ 5,095,099
Supplemental Disclosure of Cash Flow Information
Cash paid during the period for interest $ 5,311,040 $ 6,099,101
Notes to the Consolidated Financial Statements
The unaudited consolidated financial statements should be read in conjunction
with the Partnership's annual 1995 audited financial statements within form
10-K.
The unaudited consolidated interim financial statements include all adjustments
consisting of only normal recurring accruals which are, in the opinion of
management, necessary to present a fair statement of financial position as of
September 30, 1996 and the results of operations for the three and nine months
ended September 30, 1996 and 1995, statement of cash flows for the nine months
ended September 30, 1996 and 1995 and the statement of partners' capital
(deficit) for the nine months ended September 30, 1996. Results of operations
for the period are not necessarily indicative of the results to be expected for
the full year.
The following significant events have occurred subsequent to fiscal year 1995,
and or material contingency exists which require disclosure in this interim
report per Regulation S-X, Rule 10-01, Paragraph (a)(5).
Reclassification -- Certain 1995 amounts have been reclassified to conform
with the financial statement presentation used in 1996.
Saxon Woods Line of Credit -- In September 1991, the Partnership established a
non-recourse line of credit secured by the Partnership's leasehold interest in
the property. During the third quarter of 1996, the Partnership finalized an
agreement with the lender for a one-year extension of the maturity of the
mortgage, which is now scheduled to mature in September 1997.
Part I, Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Liquidity and Capital Resources
The commercial real estate market in the greater New York metropolitan area has
shown some limited signs of improvement in recent years after a prolonged
period of depressed conditions beginning in 1988 and into the early 1990s.
However, the significant cost of tenant improvements required to be funded
under both new and renewal leases and the resulting demand for capital by
landlords, including the Partnership, has remained high. In order to conserve
its limited resources, the Partnership has pursued a strategy intended to
position each of the Partnership's properties, to the extent possible, to meet
its operating and other expenses as they come due using only the operating
income generated by that property, and, if necessary, proceeds from borrowings
secured by such property.
During the nine months ended September 30, 1996, the Partnership funded
operating costs, the cost of tenant improvements, leasing commissions, and
building capital improvements from four sources: (i) cash flow generated by the
property located at Two Park Avenue, New York, New York (the "Park Avenue
Property"), the Partnership's leasehold interest in 550/600 Mamaroneck Avenue,
Harrison, New York (the "Saxon Woods Corporate Center") and the Partnership's
leasehold interest in the property located at 330 West 34th Street, New York,
New York (the "34th Street Property"), (ii) Partnership reserves, (iii) the
deferral of property management fees and leasing commissions with respect to
certain of the properties by Mendik Realty Company, Inc., an affiliate of
Mendik Corporation, and (iv) proceeds from the non-recourse line of credit
secured by a first leasehold mortgage on the Partnership's leasehold interest
in the Saxon Woods Corporate Center (the "Saxon Woods Line of Credit"). It is
expected that funds from certain of these sources may be reduced or unavailable
in the future.
Park Avenue Property - As of September 30, 1996, the Park Avenue Property was
approximately 97% leased. In order to fund tenant improvements and leasing
commissions for leases signed in recent years as well as certain other leases
currently under negotiation, the Partnership utilized or committed to utilize
substantially all of the property's cash reserves which at September 30, 1996
totalled approximately $2,068,000. However, it is expected that these leases
will increase the property's cash flow, which cash flow will be available to
re-establish reserves.
The indebtedness secured by the Park Avenue Property currently matures in
December 1998. However, the lender has the option to accelerate the maturity
of the loans upon 180 days written notice. In light of the possible
acceleration of the maturity date of the loans, the Partnership is exploring
other options, including either a refinancing with a new lender or a possible
sale of the property. However, no assurances can be given that the Partnership
would be able to refinance or sell the property on terms acceptable to the
Partnership.
Major tenants at the Park Avenue Property are The Times Mirror Company Inc.,
which leases 271,850 square feet (29% of total leaseable area in the property)
under a lease which expires on September 30, 2010, and Smith Barney, which
leases 99,839 square feet (11% of total leaseable area in the property) under a
lease expiring May 30, 1998. Smith Barney assumed the lease for this space
from its affiliate, National Benefit Life Insurance Company, in December 1995.
Although Smith Barney has notified the Partnership that it intends to vacate
its space once the current lease expires, the Partnership has been negotiating
with a subtenant of Smith Barney, which occupies approximately 20,000 square
feet, to continue its occupancy under a direct lease after the May 1998 lease
expiration.
34th Street Property - As of September 30, 1996, the 34th Street Property was
approximately 92% leased. The largest tenant in the property is the City of
New York Human Resources Administration (the "City") occupying approximately
47% of the total leaseable area under a lease which is scheduled to expire in
February 2001. The terms of the lease call for the City to make annual base
rental payments of approximately $5.4 million and pay its proportionate share
of increases in real estate taxes and operating expenses over a base year. As
with most leases with the City of New York, the tenant has the right to
terminate its lease on a floor by floor basis upon one year's notice although
it must reimburse the Partnership's unamortized costs of tenant improvements
associated with the lease. To date, the Partnership has not received any
indication that the City intends to terminate any portion of the lease. The
City has retained a real estate brokerage firm to evaluate its space needs at
various locations in New York City, including the 34th Street Property. In
that regard, the Partnership has had preliminary discussions with the City and
its broker in connection with an extension of the City's lease.
The 34th Street Property is no longer encumbered by a mortgage obligation. The
previous mortgage was paid off in June 1995 for a discounted amount of $1.75
million, or approximately 10% of the property's outstanding debt balance of
approximately $18 million, including principal and accrued interest. The
successful payoff of the mortgage allowed the Partnership to retain its
interest in the property and have the opportunity to benefit from any
improvement in the market. Funding for the payoff was provided by an affiliate
of the Partnership's NY Real Estate Services 1 Inc. general partner (the "NYRES
1 Loan"). The NYRES 1 Loan bears interest at the prime rate less one and
one-quarter percent and matures upon the earlier of December 31, 2025 or the
termination of the Partnership. Accrued interest and principal are payable on
a current basis to the extent there is net cash flow available from the
property. The loan is not secured by a mortgage on the property, but is an
unsecured obligation of the Partnership. In connection with the loan, Mendik
Realty Company Inc., an affiliate of the Mendik Corporation general partner,
agreed to continue to defer its management fees and leasing commissions with
respect to the property. At present, the property is generating sufficient
cash flow to meet operating expenses.
Saxon Woods Corporate Center - The Saxon Woods Corporate Center consists of two
office buildings, the 550 Mamaroneck building and the 600 Mamaroneck building.
As of September 30, 1996, each building had a leased rate of 96%. In August
1996, the Partnership executed a long-term agreement with a new tenant to lease
28,000 square feet or approximately 23% of the available leaseable space at the
600 Mamaroneck building. Leasing and tenant improvement costs associated with
this lease are being funded by cash flow generated by the property and the $6.5
million Saxon Woods Line of Credit secured by the Partnership's leasehold
interest in the property. In anticipation of the execution of this lease, an
updated independent appraisal of the property was completed during the second
quarter, at which time the appraised value of the property increased from $15.2
million at year-end 1995 to $16.6 million. With the increase in the appraised
value, the Partnership may draw down the full amount of the credit facility
without exceeding the limitation contained in Section 13(d) the Partnership
Agreement which restricts the Partnership from borrowing in excess of 40% of
the property's appraised value. As of September 30, 1996, the Partnership had
borrowed $5,223,285 under the Saxon Woods Line of Credit. The Partnership
expects that cash flow from the Saxon Woods Corporate Center will cover
operating expenses and current debt service obligations over the remainder of
1996. During the third quarter of 1996, the Partnership finalized an agreement
with the lender for a one-year extension of the maturity of the mortgage, which
is now scheduled to mature in September 1997. Approximately $615,000 has been
drawn under the Saxon Woods Line of Credit since September 30, 1996 to fund
costs incurred in connection with the new tenant's lease. For additional
information concerning the extension agreement, reference is made to: (i) the
Promissory Note and Loan Agreement Modification and Extension Agreement, and
(ii) the Leasehold Mortgage Modification and Extension Agreement which are
attached hereto as Exhibit 10 (y) and Exhibit 10 (z), respectively, of this
Form 10-Q.
Operating Cash Reserves and Other Assets
The Partnership's consolidated cash reserves decreased by $1,997,427 to
$2,676,134 at September 30, 1996 from $4,673,561 at December 31, 1995. The
decrease is primarily attributable to payments for tenant improvements at each
of the Partnership's properties, and also the prepayment of real estate taxes
through December 31, 1996. During the nine months ended September 30, 1996,
approximately $2.8 million of cash was utilized for property improvements at
the Park Avenue Property, the 34th Street Property and Saxon Woods Corporate
Center in connection with leasing activity and other building improvements.
The Partnership's restricted cash balance at September 30, 1996, which is
comprised of tenant security deposits, was $934,502, compared to $1,065,455 at
December 31, 1995. The $130,953 decrease is primarily attributable to a
scheduled reduction in a tenant's security deposit and the eviction of a tenant
at the Park Avenue Property in May 1996. The security deposit for the evicted
tenant was applied to its outstanding accounts receivable balances.
The Partnership's U.S. Treasuries and Agencies balance totalled $2,040,532 at
September 30, 1996, compared to $2,458,794 at December 31, 1995. The $418,262
decrease is primarily attributable to the redemption of a portion of the
Partnership's investments during the first nine months of 1996 in order to fund
capital improvements at the Park Avenue Property.
Deferred rent receivable totalled $11,233,357 at September 30, 1996, compared
to $9,597,899 at December 31, 1995. The $1,635,458 increase is primarily
attributable to the addition of several new tenants at the 34th Street Property
in the fourth quarter of 1995 with free rent periods.
Other assets increased from $10,818,003 at December 31, 1995 to $11,790,272 at
September 30, 1996. The $972,269 increase is primarily attributable to the
prepayment of real estate taxes through December 31, 1996.
Short- and Long-term Liabilities
Accounts payable and accrued expenses increased by $904,526 to $2,721,069 at
September 30, 1996, compared to $1,816,543 at December 31, 1995. The increase
is primarily attributable to expenses incurred by the Partnership in connection
with property improvements completed at the 34th Street Property as a result of
the execution of several new leases during the fourth quarter of 1995.
Deferred income decreased by $787,872 to $6,742,875 at September 30, 1996,
compared to $7,530,747 at December 31, 1995. The decrease is primarily
attributable to the amortization of The Times Mirror Company Inc.'s prepaid
rent in connection with the modification of its lease in the fourth quarter of
1995. As part of the modification, The Times Mirror Company Inc. prepaid a
portion of the rents due through the original lease expiration of June 30, 2004
and effectively reduced their rental rate per square foot over the remaining
lease term.
Due to affiliates decreased from $2,650,348 at December 31, 1995 to $2,266,228
at September 30, 1996. The $384,120 decrease is primarily attributable to
prepaid cleaning and related service charges netted against other amounts due
to affiliates primarily consisting of deferred management fees and reimbursable
administrative expenses.
Results of Operations
For the three and nine months ended September 30, 1996, the Partnership
generated a net loss after depreciation and amortization of $199,903 and
$1,704,756 for the three and nine months ended September 30, 1996,
respectively, compared to a net loss of $959,950 and net income of $12,648,108
for the corresponding periods in 1995. The lower net loss for the three month
period is primarily attributable to an increase in rental income and a decrease
in interest expense. The change from net income to net loss for the nine month
period is primarily attributable to the $16,247,734 extraordinary gain
recognized on the retirement of the 34th Street Line of Credit in June 1995.
Excluding the gain, the Partnership generated a loss before extraordinary item
of $3,599,626 for the nine months ended September 30, 1995, compared to
$1,704,756 for the corresponding period in 1996. The decrease in net loss from
the 1995 period to the 1996 period is primarily attributable to an increase in
rental income and a decrease in interest expense.
Rental income for the three and nine months ended September 30, 1996 totalled
$9,726,397 and $26,703,367, respectively, compared to $8,641,636 and
$24,694,927 for the corresponding periods in 1995. The increase for both
periods is due primarily to significant leasing activity at the 34th Street
property during the fourth quarter of 1995.
Property operating expenses totalled $5,212,057 and $15,171,839 for the three
and nine months ended September 30, 1996, respectively, compared to $5,296,717
and $14,697,423 for the corresponding periods in 1995. The increase for the
nine month period is primary attributable to an increase in occupancy at the
34th Street Property due to significant leasing activity during the fourth
quarter of 1995 and an increase in operating costs at certain of the
Partnership's properties which resulted from severe weather conditions during
the first quarter of 1996.
Interest expense for the three and nine months ended September 30, 1996
totalled $1,821,107 and $5,393,089, respectively, compared to $2,048,498 and
$6,770,643 for the corresponding periods in 1995. The decrease for both periods
is due primarily to: (i) the $10 million paydown of the outstanding principal
balance of the mortgages secured by the Park Avenue Property in the fourth
quarter of 1995, and (ii) the June 1995 discounted payoff of the 34 Street
Property mortgage.
Part II Other Information
Items 1-5 Not applicable.
Item 6 Exhibits and reports on Form 8-K.
(a) Exhibits -
10 (y) Promissory Note and Loan Agreement Modification
and Extension Agreement between Mendik Real
Estate Limited Partnership and FGH Realty
Credit Corp. dated as of September 9, 1996
10 (z) Leasehold Mortgage Modification and Extension
Agreement between Mendik Real Estate Limited
Partnership and FGH Realty Credit Corp. dated
as of September 9, 1996
27 Financial Data Schedule
(b) Reports on Form 8-K - No reports on Form 8-K were filed
during the quarter ended September 30, 1996
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
MENDIK REAL ESTATE LIMITED PARTNERSHIP
BY: NY REAL ESTATE SERVICES 1 INC.
General Partner
Date: November 13, 1996 BY: /s/ Kenneth L. Zakin
Name: Kenneth L. Zakin
Title: President and Director
Date: November 13, 1996 BY: /s/ Mark Sawicki
Name: Mark Sawicki
Title: Vice President and
Chief Financial Officer
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-mos
<FISCAL-YEAR-END> Dec-31-1995
<PERIOD-END> Sep-30-1996
<CASH> 2,676,134
<SECURITIES> 000
<RECEIVABLES> 12,773,718
<ALLOWANCES> 183,620
<INVENTORY> 000
<CURRENT-ASSETS> 4,032,875
<PP&E> 245,843,100
<DEPRECIATION> 65,208,257
<TOTAL-ASSETS> 210,666,381
<CURRENT-LIABILITIES> 3,424,972
<BONDS> 000
<COMMON> 000
000
000
<OTHER-SE> 84,960,964
<TOTAL-LIABILITY-AND-EQUITY> 210,666,381
<SALES> 26,703,367
<TOTAL-REVENUES> 26,837,908
<CGS> 000
<TOTAL-COSTS> 15,171,839
<OTHER-EXPENSES> 8,482,327
<LOSS-PROVISION> 000
<INTEREST-EXPENSE> 5,393,089
<INCOME-PRETAX> (1,704,756)
<INCOME-TAX> 000
<INCOME-CONTINUING> (1,704,756)
<DISCONTINUED> 000
<EXTRAORDINARY> 000
<CHANGES> 000
<NET-INCOME> (1,704,756)
<EPS-PRIMARY> (4.27)
<EPS-DILUTED> 000
</TABLE>
PROMISSORY NOTE AND LOAN
AGREEMENT MODIFICATION AND EXTENSION AGREEMENT
made between
MENDIK REAL ESTATE LIMITED PARTNERSHIP
c/o Mendik Corporation
330 Madison Avenue
New York, New York 10017
as Borrower
and
FGH REALTY CREDIT CORP.
292 Madison Avenue
New York, New York 10017
as Lender
Dated: As of September 9, 1996
PROMISSORY NOTE AND LOAN
AGREEMENT MODIFICATION AND EXTENSION AGREEMENT
THIS PROMISSORY NOTE AND LOAN AGREEMENT MODIFICATION AND EXTENSION AGREEMENT
(this "Agreement"), dated as of September 9, 1996, by and among MENDIK REAL
ESTATE LIMITED PARTNERSHIP, a New York limited partnership, having an office at
c/o Mendik Corporation, 330 Madison Avenue, New York, New York, 10017 (the
"Borrower") and FGH REALTY CREDIT CORP., a Delaware corporation (formerly known
as Friesch-Groningsche Hypotheekbank Realty Credit Corporation), having an
office at 292 Madison Avenue, New York, New York, 10017 (the "Lender").
W I T N E S S E T H :
WHEREAS, the Borrower executed and delivered to Lender a Promissory Note,
dated September 25, 1991, in the original principal amount of up to
$6,500,000.00, (the "Original Note"), which Original Note evidences a loan in
the original principal amount of $6,500,000.00 (the "Loan") made by the Lender
to the Borrower pursuant to that certain Loan Agreement, dated September 25,
1991 between the Borrower and the Lender (the "Original Loan Agreement");
WHEREAS, the Original Note is secured by, among other things a Leasehold
Mortgage and Security Agreement, dated as of September 25, 1991, made by the
Borrower to the Lender, and recorded on October 2, 1991 in the Office of the
Clerk of the County of Westchester in Liber 14863, Page 55 (the "Original
Mortgage"), which Original Mortgage encumbers the Ground Lease (as defined in
the Original Mortgage) and the leasehold estate created thereby in certain real
property located at 550 Mamaroneck Avenue and 600 Mamaroneck Avenue, County of
Westchester, State of New York and as more particularly described in the
Original Mortgage (the "Property"). The Original Note, the Original Mortgage
and the Original Loan Agreement and any and all other documents executed in
connection with the Original Loan, shall be hereinafter collectively referred
to as the "Original Loan Documents";
WHEREAS, the Borrower has requested, and the Lender has agreed, to modify
and extend the terms of the Original Note and the Original Loan Agreement as
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Lender
hereby agree as follows:
A. DEFINED TERMS. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Original Loan Agreement.
B. CONFIRMATION OF INDEBTEDNESS. The Borrower hereby confirms and reaffirms
its promise to pay the principal amount of the Loan and all advances thereof,
plus interest thereon, to the Lender subject to and in accordance with the
terms and limitations of the Original Note, as modified and extended hereby.
C. MODIFICATION AND EXTENSION OF ORIGINAL NOTE. The terms, covenants and
provisions of the Original Note are hereby modified and extended as follows:
1. Increase in Libor Option Interest Rate. Effective from and after
March 25, 1997, Section 2(ii) of the Original Note shall be deleted in its
entirety and replaced with the following:
From and after March 25, 1997, interest shall be payable in respect to
the outstanding principal amount of the Loan at a rate per annum equal
to three percentage points (3.0%) in excess of the Libor Rate for the
relevant Interest Period.
2. Interest Period. The definition of the term "Interest Period" set
forth in Section 1 of the Original Note is hereby amended by deleting the
following from the first line thereof ", six or twelve." In addition, the
first two (2) sentences of Section 3 of the Original Note are hereby deleted in
their entirety, it being the intention of the parties hereto that only three
(3) month Interest Periods shall be available to the Borrower.
3. Fixed Option Termination. Section 4 of the Original Note is hereby
deleted in its entirety, it being the intention of the parties hereto that the
Borrower shall no longer have the right to elect the Fixed Option (as such is
defined in the Original Note).
4. Extension of Maturity Date. The Maturity Date (as such term is
defined in the Original Note) is hereby extended from September 25, 1996 to
September 25, 1997 and accordingly, the definition of "Maturity Date" of the
Original Note is hereby deleted and replaced with "September 25, 1997."
5. Original Mortgage Definition. The definition of Mortgage appearing
on page 4 of the Note is deleted in its entirety and replaced by the following:
"That certain Leasehold Mortgage and Security Agreement, dated September
25, 1991 made by Borrower to Lender, as modified by that certain
Leasehold Mortgage Modification and Extension Agreement, dated
September 9, 1996, as same may be amended, modified, recast or
replaced."
6. Modification of Original Note. As used in the Original Note, the
Original Mortgage, the Original Loan Agreement and the other Original Loan
Documents, the term "Note" shall mean the Original Note, as modified hereby.
D. MODIFICATION AND EXTENSION OF ORIGINAL LOAN AGREEMENT. The Original Loan
Agreement is hereby modified as follows:
1. Funding Commitment Termination. Notwithstanding anything to the
contrary contained in the Original Loan Agreement, as amended hereby, from and
after December 31, 1996, Lender shall have no further obligation to make any
advances of Loan proceeds under the Original Loan Agreement, as amended hereby.
2. Extension of Maturity Date. The Maturity Date (as such term is
defined in the Original Loan Agreement) is hereby extended from September 25,
1996 to September 25, 1997 and accordingly, the definition of "Maturity Date"
set forth in the Original Loan Agreement is hereby deleted and replaced with
"September 25, 1997."
3. Modification of Usage Fee. The Original Loan Agreement is hereby
amended as follows:
(a) the definition of "Usage Fee" appearing on page 14 of the
Original Loan Agreement is amended by inserting the phrase "until September 25,
1996" following the phrase "A non-refundable fee payable monthly" appearing in
the first line of such definition.
(b) Section III(5)(g) appearing on page 22 of the Original Loan
Agreement is hereby amended by inserting the phrase "until September 25, 1996"
at the end of the sentence.
4. Addition of Funding Fee. The Original Loan Agreement is hereby
amended as follows:
(a) The following definition is hereby inserted, in appropriate
alphabetical order, in the definition section of the Original Loan Agreement:
"Funding Fee" - A non-refundable fee payable upon, and as a
condition to, each Loan advance made after September 25, 1996,
which Funding Fee shall be equal to the amount of interest which
would have been earned on such Loan advance (assuming for purposes
of computing said Funding Fee that such Loan Advance was made on
September 25, 1996) for the period (the "Fee Period") from
September 25, 1996 until the date such advance is actually made at
a rate per annum equal to 2.9% provided that such deemed interest
rate shall be computed on the basis of a 360 day year over the
actual number of days in the Fee Period.
(b) The following is hereby inserted at the end of Article III,
Section (5)(g) appearing on page 22 of the Original Loan Agreement:
(h) the Funding Fee, upon each advance of Loan proceeds after
September 25, 1996 in accordance with the terms hereof.
(c) The following is hereby inserted at the end of Article IV,
Section (l)(a) appearing on page 29 of the Original Loan Agreement:
(v) the Funding Fee, in accordance with the provisions hereof.
(d) The following phrase is hereby inserted at the end of Article
VII, Section 5(iv) appearing on page 42 of the Original Loan Agreement:
(v) the Funding Fee, to the extent that it is due in accordance
with the terms hereof.
5. Agent for Service. Pursuant to Section XI(4) of the Loan Agreement,
Borrower appoints Proskauer, Rose, Goetz & Mendelsohn, LLP, whose present
address is 1585 Broadway, New York, New York 10036, to serve as successor agent
to Shea & Gould as Borrower's agent for service of process in the State of New
York.
6. Notices. The Original Loan Agreement is hereby amended by deleting
Article VIII, Section (6) in its entirety appearing on page 44 of the Original
Loan Agreement and inserting the following in its place:
(6) a. Any notice, report, demand or other instrument authorized or
required to be given or furnished shall be deemed given or furnished (i) when
addressed to the party intended to receive the same, at the address of such
party set forth below, and delivered at such address (against a signed
receipt), (ii) three days after the same is deposited in the United States
mail as first class certified mail, return receipt requested, postage paid,
(iii) when delivered by nationwide commercial courier service, one business day
after the date of delivery of such notice to the courier service (provided that
overnight delivery service is used), or (iv) when transmitted by telecopy to
the telecopier number set forth below, to the party intended to receive same,
provided that such transmission is confirmed by duplicate notice in such other
manner as permitted above, upon receipt at such telecopier number:
Lender: FGH Realty Credit Corp.
292 Madison Avenue
New York, New York 10017
Attention: Special Servicing Department
Telecopier: (212) 251-0149
Copy to: Sullivan & Worcester LLP
767 Third Avenue
New York, New York 10017
Attention: Alan H. Pleskow, Esq.
Telecopier: (212) 758-2151
Borrower: Mendik Real Estate Limited Partnership
c/o Mendik Corporation
330 Madison Avenue
New York, New York 10017
Attention: Mr. David R. Greenbaum
Telecopier: (212) 867-4833
Copy to: Proskauer, Rose, Goetz & Mendelsohn, LLP
1585 Broadway
New York, New York 10036
Attention: Lawrence J. Lipson, Esq.
Telecopier: (212) 969-2900
b. Any party may change the address to which any such notice, report,
demand or other instrument is to be delivered or mailed, by furnishing written
notice of such change to the other parties, but no such notice of change shall
be effective unless and until received by such other parties. Rejection or
refusal to accept, or inability to deliver because of changed address or
because no notice of changed address was given, shall be deemed to be receipt
of any such notice."
5. Modification of Original Loan Agreement. As used in the Original
Note, the Original Mortgage and the Original Loan Agreement, and all the other
Original Loan Documents, the term "Loan Agreement" shall mean the Original Loan
Agreement, as amended hereby.
E. REPRESENTATIONS. ETC. The Borrower represents, warrants and covenants to
the Lender that as of the date hereof:
1. there are no offsets, counterclaims or defenses under the Ground Lease
or against the indebtedness evidenced by the Original Note, as
modified hereby, the Original Loan Agreement, as modified hereby, or
secured by the Original Mortgage, as modified by the Leasehold
Mortgage Modification and Extension Agreement, dated the date hereof,
by Borrower to Lender (the "Mortgage Modification") (the Original
Note, as modified hereby, the Original Mortgage, as modified by the
Mortgage Modification, and the Original Loan Agreement, as modified
hereby, and any and all other documents executed in connection with
the Loan are hereinafter, collectively, referred to as the "Loan
Documents");
2. that the outstanding principal amount of the Loan on the date hereof
is $5,223,285.03;
3. that the Borrower has full power, authority and legal right to execute
this Agreement and all of the other loan documents executed in
connection herewith (this Agreement and such other documents are
hereinafter, collectively, referred to as the "Modified Loan
Documents") and to keep and observe all of the terms of this
Agreement, the Modified Loan Documents and the Loan Documents to be
observed or performed by the Borrower;
4. that there are no actions, suits or proceedings pending or, to the
knowledge of the Borrower threatened against or affecting the Borrower
or the Ground Lease or the Property, which could have a material
adverse effect on the Borrower or the Ground Lease and/or the Property
or involving the validity or enforceability of the Original Mortgage,
as modified by the Mortgage Modification, or the priority of the lien
thereof, at law or in equity, and the Borrower is not operating under,
or subject to, or in default of, or in violation with respect to any
order, writ, injunction, decree or demand of any court or any
governmental authorities except set forth on Schedule A attached
hereto and a part hereof;
5. that there has been no material adverse change in the financial
condition of the Borrower since the date of the last financial
statement delivered to the Lender in connection with the Loan:
6. (i) to the best of Borrower's knowledge, there is no default existing
under the Ground Lease with respect to the landlord thereunder and
(ii) there is no default by the Borrower existing under the Ground
Lease, the Original Note, as modified hereby, the Original Mortgage,
as modified by the Mortgage Modification, the Original Loan Agreement,
as modified hereby, the other Modified Loan Documents or the Loan
Documents or any event which with the giving of notice or the passage
of time or both could constitute a default thereunder; and
7. the Ground Lease is in full force and effect and have not been
modified or changed since the date of the Original Note.
F. CHANGES ONLY IN WRITING. The Borrower acknowledges that this Agreement
and all instruments referred to herein can be extended, modified or amended
only in writing executed by the Lender and the Borrower and that none of the
rights or benefits of the Lender can be waived permanently except in a written
document executed by the Lender. The Borrower further acknowledges the
Borrower's understanding that no officer or administrator of the Lender has the
power or the authority from the Lender to make an oral extension or
modification or amendment of any such instrument or agreement on behalf of the
Lender.
G. BINDING NATURE. This Agreement shall be binding upon and inure to the
benefit of the Borrower and the Lender and their respective successors and
assigns.
H. DUPLICATE ORIGINALS. This Agreement may be executed in any number of
duplicate originals and each such duplicate original shall be deemed to
constitute but one and the same instrument.
I. PARTIAL INVALIDITY. If any term, covenant or condition of this Agreement
shall be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be construed without such provision.
J. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE LENDER HEREBY WAIVES
ANY RIGHT WHICH IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE ORIGINAL NOTE, AS
MODIFIED HEREBY, THE ORIGINAL MORTGAGE, AS MODIFIED BY THE MORTGAGE
MODIFICATION, THE ORIGINAL LOAN AGREEMENT, AS MODIFIED HEREBY, AND THE OTHER
LOAN DOCUMENTS.
K. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and year first above written.
LENDER:
FGH REALTY CREDIT CORP., a Delaware corporation
By: /s/ Zanda J. Lynn
Zanda J. Lynn
Vice President
BORROWER:
MENDIK REAL ESTATE LIMITED PARTNERSHIP,
New York limited partnership,
By: Mendik Corporation,
general partner
By: /s/ David R. Greenbaum
David R. Greenbaum
President
ATTEST: By: NY Real Estate Services 1, Inc.
(f/k/a Hutton Real Estate Services XV, Inc.),
general partner
__________________________ By: /s/ Kenneth L. Zakin
Name: Kenneth L. Zakin
Secretary/Assistant Secretary President
The undersigned hereby irrevocably accepts the
appointment as agent for service of process in
accordance with Article IX(4) of the Loan Agreement
and Section D(3) hereof, and the undersigned
acknowledges that the Lender is relying on the
acceptance of this appointment by the undersigned
in making the Loan.
Proskauer, Rose, Goetz & Mendelsohn, LLP
/s/ Lawrence J. Lipson
Lawrence J. Lipson
Partner
SCHEDULE A
[Litigation]
Nancy Sword et al. v. Lehman Brothers Holdings, Inc. et al.,Civil Act No.
WMN 96-871, United States District Court, District of Maryland.
LEASEHOLD MORTGAGE MODIFICATION AND EXTENSION AGREEMENT
made between
MENDIK REAL ESTATE LIMITED PARTNERSHIP
c/o Mendik Corporation
330 Madison Avenue
New York, New York 10017
as Mortgagor
and
FGH REALTY CREDIT CORP.
292 Madison Avenue
New York, New York 10017
as Mortgagee
Dated: As of September 9, 1996
After Recording, Return to
Sullivan & Worcester
767 Third Avenue
New York, New York 10017
Attn.: Alan H. Pleskow, Esq.
Premises:
550 and 600 Mamaroneck Avenue
County of Westchester, State of New York
Block: 482
Lots: 72, 27
County: Westchester
Town: Harrison
LEASEHOLD MORTGAGE MODIFICATION AND EXTENSION AGREEMENT
THIS LEASEHOLD MORTGAGE MODIFICATION AND EXTENSION AGREEMENT (this
"Agreement"), dated as of September 9, 1996, between MENDIK REAL ESTATE LIMITED
PARTNERSHIP, a New York limited partnership, having an address at c/o Mendik
Corporation, 330 Madison Avenue, New York, New York 10017 (the "Mortgagor") and
FGH REALTY CREDIT CORP., a Delaware corporation (formerly known as
Friesch-Groningsche Hypotheekbank Realty Credit Corporation), having an address
at 292 Madison Avenue, New York, New York 10017 (the "Mortgagee").
W I T N E S S E T H :
WHEREAS, the Mortgagor executed and delivered to the Mortgagee a Promissory
Note, dated as of September 25, 1991 in the original principal amount of
$6,500,000.00 (the "Original Note"), which Original Note evidences a loan in
the original principal amount of up to $6,500,000.00 made by the Mortgagee to
the Mortgagor pursuant to that certain Loan Agreement dated September 25, 1991
between the Borrower and the Lender (the "Original Loan Agreement");
WHEREAS, the Original Note is secured by a certain Leasehold Mortgage and
Security Agreement, dated as of September 25, 1991, from the Mortgagor in favor
of the Mortgagee and recorded on October 2, 1991 in the Office of the Clerk of
the County of Westchester, State of New York (the "Clerk's Office") in Liber
14863, Page 55 (the "Original Mortgage"), which Original Mortgage encumbers
Mortgagor's interest as tenant in the ground leases, (collectively, the "Ground
Lease") described on Schedule A attached hereto, which Ground Lease affects the
property located at 550 Mamaroneck Avenue and 600 Mamaroneck Avenue, County of
Westchester, State of New York and more particularly described on Schedule B
attached hereto and made a part hereof (the "Mortgaged Property");
WHEREAS, simultaneously with the execution of this Agreement, the Mortgagor
and Mortgagee have modified and extended the terms of the Original Note and the
Original Loan Agreement pursuant to a Promissory Note and Loan Agreement
Modification and Extension Agreement (the Original Note, as so modified and
extended, is hereinafter referred to as the "New Note", and the Original Loan
Agreement, as so modified and extended, is hereinafter referred to as the "Loan
Agreement", and the New Note and the Loan Agreement together with the Original
Mortgage, as amended hereby, and any and all other documents executed in
connection herewith or therewith, the "Loan Documents"); and
WHEREAS, the Mortgagor has requested, and the Mortgagee has agreed, to
modify the terms of the Original Mortgage as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Mortgagor and the Mortgagee
hereby agree as follows:
A. DEFINED TERMS. All capitalized terms used herein, unless otherwise
defined, shall have the meaning set forth in the Original Mortgage.
B. EXTENSION OF TERM. The scheduled maturity of the Original Mortgage is
hereby extended to September 25, 1997.
C. AMENDMENT OF ORIGINAL MORTGAGE. The terms, covenants and provisions of
the Original Mortgage are hereby modified and amended to the extent set forth
below and, except as set forth below, the terms of the Original Mortgage shall
remain unchanged and in full force and effect and the Original Mortgage as so
modified and amended is hereby confirmed in all respects by the Mortgagor:
1. The Original Mortgage is hereby amended by replacing the definition of
"Note" set forth in first recital thereof appearing on page 1 of the Original
Mortgage with the definition of the New Note set forth in this Agreement.
Furthermore, any and all references to "Note" set forth in the Original
Mortgage shall mean the New Note. The Original Mortgage, as modified and
extended by this Agreement, shall secure the New Note with the same force and
effect as the Original Mortgage did, and shall be afforded the same priority as
the Original Mortgage had, with the Original Note.
2. The Original Mortgage is hereby amended by inserting the following
after the word "agreements" appearing in the fifth line of the Granting Clause
on page 2 of the Original Mortgage:
"including, without limitation, the Loan Agreement, as amended by the
Promissory Note and Loan Agreement Modification and Extension Agreement, dated
September 9, 1996 between Mortgagor and Mortgagee,"
3. The Original Mortgage is hereby amended by adding the following after
paragraph 1.04.6(a) appearing on page 12 of the Original Mortgage:
"Particular Insurance Provisions. In addition to the insurance
requirements set forth above, the Mortgagor shall comply with the requirements
set forth below. If the provisions set forth below conflict with the terms set
forth elsewhere in this Mortgage, the terms set forth below shall control.
(a) Coverage Provisions.
(i) All risk/open perils special form property insurance shall be
in force with limits of one hundred percent (100%) replacement cost. If a
coinsurance clause shall be in effect, an agreed amount endorsement shall be
required. Blanket policies shall include limits by property location. The
coverage shall insure the Mortgaged Property and all tangible personal
property.
(ii) Broad form boiler and machinery coverage, including a form
of business income coverage, shall be in force if any such items are located on
or about the Mortgaged Property.
(iii) If available, flood insurance shall be in force if the
Mortgaged 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. The coverage shall include the Mortgaged Property and the
tangible personal property.
(iv) A form of business income coverage shall be in force in the
amount of eighty percent (80%) of one year's business income from the Mortgaged
Property. Blanket policies shall include limits by property location.
(v) Comprehensive/general liability coverage shall be in force
with a one million dollar ($1,000,000.00) combined single limit per occurrence
with a minimum aggregate limit of two million dollars ($2,000,000.00).
Umbrella/excess liability insurance may be used to satisfy this requirement.
(vi) Liquor liability coverage shall be in force 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 Mortgaged
Property.
(b) How Mortgagee shall be Named. On all property policies and
coverages (including coverage against loss of business income), the Mortgagee
shall be named as "first mortgagee" under a standard mortgage clause. On all
liability policies and coverages, the Mortgagee shall be named as an
"additional insured." The Mortgagee shall be referred to verbatim as follows:
"FGH Realty Credit Corp. and its successors, assigns and affiliates; as their
interests may appear; c/o AEGON USA Realty Advisors, Inc.; Mortgage Loan Dept.;
433 Edgewood Rd., NE; Cedar Rapids, Iowa 52499".
(c) Rating. The insurance carrier shall be rated A, Class XII, or
better by Best's Rating Service, without regard to its parent's or any
reinsurer's rating.
(d) Deductible. The maximum deductible on all coverages and policies
shall be twenty-five thousand dollars ($25,000.00).
(e) Notices Changes and Renewals. All policies shall require the
insurance carrier to give the Mortgagee a minimum of thirty (30) days' notice
in the event of cancellation or non-renewal. Any vacancy, change of title,
tenant occupancy or use, physical damage or contract shall be reported to the
Mortgagee immediately. An original or certified copy of each policy shall be
required upon renewal. If no such copy is available, the Mortgagee shall
accept a binder for a period not to exceed ninety (90) days. All binders,
certificates of insurance and original or certified copies of policies shall
name the Mortgagee as a named insured, or as an additional insured, shall
include the complete and accurate property address and shall bear the original
signature of the issuing insurance agent."
4. The Original Mortgage is hereby amended by deleting paragraph 5.02
in its entirety appearing on page 42 of the Original Mortgage and inserting the
following paragraph 5.02 in its place:
"5.02 Addresses for Notices. Etc.
(a) Any notice, report, demand or other instrument authorized or
required to be given or furnished shall be deemed given or furnished (i) when
addressed to the party intended to receive the same, at the address of such
party set forth below, and delivered at such address (against a signed
receipt), (ii) three days after the same is deposited in the United States
mail as first class certified mail, return receipt requested, postage paid,
(iii) when delivered by nationwide commercial courier service, one business day
after the date of delivery of such notice to the courier service (provided that
overnight delivery service is used), or (iv) when transmitted by telecopy to
the telecopier number set forth below, to the party intended to receive same,
provided that such transmission is confirmed by duplicate notice in such other
manner as permitted above, upon receipt at such telecopier number:
Mortgagee: FGH Realty Credit Corp.
292 Madison Avenue
New York, New York 10017
Attention: Special Servicing Department
Telecopier: (212) 251-0149
Copy to: Sullivan & Worcester LLP
767 Third Avenue
New York, New York 10017
Attention: Alan H. Pleskow, Esq.
Telecopier: (212) 758-2151
Mortgagor: Mendik Real Estate Limited Partnership
c/o Mendik Corporation
330 Madison Avenue
New York, New York 10017
Attention: Mr. David R. Greenbaum
Telecopier: (212) 867-4833
Copy to: Proskauer, Rose, Goetz & Mendelsohn, LLP
1585 Broadway
New York, New York 10036
Attention: Lawrence J. Lipson, Esq.
Telecopier: (212) 969-2900
(b) Any party may change the address to which any such notice,
report, demand or other instrument is to be delivered or mailed, by furnishing
written notice of such change to the other parties, but no such notice of
change shall be effective unless and until received by such other parties.
Rejection or refusal to accept, or inability to deliver because of changed
address or because no notice of changed address was given, shall be deemed to
be receipt of any such notice."
5. As used in the New Note, the Original Mortgage and the other Loan
Documents, the term "Mortgage" shall mean the Original Mortgage, as amended
hereby.
D. OTHER ASSURANCES. The Mortgagor shall promptly cause this
Agreement, and such other agreements as the Mortgagee shall reasonably require,
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 of and fully
to protect the lien of the Original Mortgage, as amended hereby, upon, and the
interest of the Mortgagee in, the Mortgaged Property. The Mortgagor will pay
all filing, registration and recording fees, and all expenses incident to the
preparation, execution and acknowledgment 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 shall hold harmless and indemnify
the Mortgagee against any liability incurred by reason of the imposition of any
tax on the issuance, making, filing, registration, recording or enforcement of
this Agreement.
E. CHANGES ONLY IN WRITING. The Mortgagor acknowledges that this
Agreement and all instruments referred to herein can be extended, modified or
amended only in a writing executed by the Mortgagee and the Mortgagor and that
none of the rights or benefits of the Mortgagee can be waived permanently
except in a written document executed by the Mortgagee. The Mortgagor further
acknowledges the Mortgagor's understanding that no officer or administrator of
the Mortgagee has the power or the authority from the Mortgagee to make an oral
extension or modification or amendment of any such instrument or agreement on
behalf of the Mortgagee.
F. BINDING NATURE. This Agreement shall be binding upon and inure to
the benefit of the Mortgagor and the Mortgagee and their respective successors
and assigns.
G. DUPLICATE ORIGINALS AND COUNTERPARTS. 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. This Agreement may be
executed in one or more counterparts each of which shall be an original and all
of which shall constitute but one instrument.
H. PARTIAL INVALIDITY. If any term, covenant or condition of this
Agreement shall be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be construed without such provision.
I. WAIVER OF JURY TRIAL. EACH OF THE MORTGAGOR AND THE MORTGAGEE HEREBY
WAIVES ANY RIGHT WHICH IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY
LITIGATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE ORIGINAL
NOTE, THE NEW NOTE, THE ORIGINAL MORTGAGE, AS AMENDED HEREBY, AND THE OTHER
LOAN DOCUMENTS.
J. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement the
day and year first above written.
MORTGAGEE:
FGH REALTY CREDIT CORP.,
a Delaware corporation
By: /s/ Zanda J. Lynn
Zanda J. Lynn
Vice President
MORTGAGOR:
MENDIK REAL ESTATE LIMITED PARTNERSHIP,
a New York limited partnership
By: Mendik Corporation,
general partner
By: /s/ David R. Greenbaum
David R. Greenbaum
President
By: NY Real Estate Services 1, Inc.
(f/k/a Hutton Real Estate Services XV, Inc.),
general partner
By: /s/ Kenneth L. Zakin
Kenneth L. Zakin
President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19th day of September, 1996, before me personally came Zanda J.
Lynn, to me known, who, being duly sworn, did depose and say that she resides
at c/o 292 Madison Avenue, New York, New York, that she is a Vice President of
FGH REALTY CREDIT CORP., a Delaware corporation, the corporation described in
and which executed the foregoing instrument; and that she signed her name
thereto by authority of the board of directors of said corporation.
By: /s/ James P. Murphy
James P. Murphy
Notary Public, State of New York
No. 01MU5050744
Qualified in Bronx County
Commission Expires October 16, 1997
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 9th day of September, 1996, before me personally came David R.
Greenbaum, to me known to be the individual who executed the foregoing
instrument and, who, being duly sworn by me, did depose and say that he is the
president of MENDIK CORPORATION, which is general partner of MENDIK REAL ESTATE
LIMITED PARTNERSHIP, a New York general partnership, and that he executed the
foregoing instrument in the partnership name of MENDIK REAL ESTATE LIMITED
PARTNERSHIP, and that he had authority to sign the same, and acknowledged that
he executed the same as the act and deed of said partnership.
By: /s/ Michael Martinez
Michael Martinez
Notary Public, State of New York
No. 01MA4987374
Qualified in Bronx County
Commission Expires October 15, 1997
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 9th day of September, 1996, before me personally came Kenneth L.
Zakin, to me known to be the individual who executed the foregoing instrument
and, who, being duly sworn by me, did depose and say that he is the president
of NY REAL ESTATE SERVICES 1, INC.(f/k/a Hutton Real Estate Services XV, Inc.),
which is general partner of MENDIK REAL ESTATE LIMITED PARTNERSHIP, a New York
general partnership, and that he executed the foregoing instrument in the
partnership name of MENDIK REAL ESTATE LIMITED PARTNERSHIP, and that he had
authority to sign the same, and acknowledged that he executed the same as the
act and deed of said partnership.
By: /s/ Joan L. Calderon
Joan Livingston Calderon
Notary Public, State of New York
No. 31-4896362
Qualified in New York City
Commission Expires July 6, 1997
SCHEDULE A
[GROUND LEASE]
Lease dated September 30, 1977 made between Richard M. Harmonay, S. Leo
Harmonay and Philip Becker, as trustees under the Last Will and Testament of
William L. Harmonay, as lessor and the Michael Harmonay Corporation, as
lessee, a memorandum of which lease, dated September 30, 1977 was recorded on
October 13, 1977 in Liber 7425, Cp. 760, as assigned by Assignment and
Assumption of Lease made from 550/600 Mamaroneck Company, dated September 4,
1986 and recorded October 9, 1986 in Liber 8583 Cp. 7.
Lease dated September 30, 1977 made between Richard M. Harmonay, S. Leo
Harmonay and Philip Becker, as trustees under the Last Will and Testament of
William L. Harmonay, as lessor and the Michael Harmonay Corporation, as
lessee, a memorandum of which lease, dated September 30, 1977 was recorded on
October 13, 1977 in Liber 7425, Cp. 754, as assigned by Assignment and
Assumption of Lease made from 550/600 Mamaroneck Company, dated September 4,
1986 and recorded October 9, 1986 in Liber 8583 Cp. 15.
SCHEDULE B
LEGAL DESCRIPTION
PARCEL I
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Town of Harrison, County of Westchester and State of New York, being more
particularly bounded and described as follows:
BEGINNING at a point formed by the intersection of the southerly side of Union
Avenue with the easterly side of Mamaroneck Avenue;
RUNNING THENCE along the southerly side of Union Avenue the following two (2)
courses and distances:
1. South 86 degrees 51 minutes 45 seconds East, 206.69 feet
2. Southerly on a curve to the right having a radius of 575
feet a distance of 466.46 feet to a point;
THENCE South 3 degrees 08 minutes 15 seconds West, 345.05 feet to a point;
THENCE North 86 degrees 51 minutes 45 seconds West, 623.67 feet to the easterly
side of Mamaroneck Avenue;
THENCE along the said easterly side of Mamaroneck Avenue North 3 degrees 08
minutes 15 seconds East, 524.14 feet to the point or place of BEGINNING.
PARCEL II
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Town of Harrison, County of Westchester and State of New York being more
particularly bounded and described as follows:
BEGINNING at a point on the easterly side of Mamaroneck Avenue distant 524.14
feet southerly as measured along the same from its intersection with the
southerly side of Union Avenue;
RUNNING THENCE along the said easterly side of Mamaroneck Avenue the following
two courses and distances:
1. South 3 degrees 08 minutes 15 seconds West, 231.12 feet
to a point;
2 South 3 degrees 08 minutes 20 seconds West, 374.85 feet
to a point;
THENCE South 61 degrees 59 minutes 42 seconds East, 74.98 feet to a point;
THENCE South 86 degrees 51 minutes 45 seconds East, 291.97 feet to a point;
THENCE North 48 degrees 08 minutes 15 seconds East, 372.87 feet to a point;
THENCE North 3 degrees 08 minutes 15 seconds East, 373.84 feet to a point;
THENCE North 86 degrees 51 minutes 45 seconds West, 623.67 feet to point or
place of BEGINNING.
