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FIRST AMENDMENT TO MORTGAGE,
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FIRST AMENDMENT TO ASSIGNMENT OF LEASES, AND
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FIRST AMENDMENT TO ASSIGNMENT OF RENTS
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FIRST AMENDMENT TO MORTGAGE, FIRST AMENDMENT TO ASSIGNMENT OF
LEASES, AND FIRST AMENDMENT TO ASSIGNMENT OF RENTS (this "Amendment"),
dated as of June 1, 1994, between GENERAL CAMERA CORPORATION ("Mortgagor")
and JOHN HANCOCK REALTY INCOME FUND-II LIMITED PARTNERSHIP ("Mortgagee").
W I T N E S S E T H :
= = = = = = = = = = =
WHEREAS, Mortgagor and Mortgagee have entered into that certain
11.00% Secured Note, dated June 30, 1989, in the original principal amount
of $5,500,000.00 (the "Note"); and
WHEREAS, the principal amount due and owing under the Note is, as
of the date hereof, $5,500,000, excluding any interest or other amounts due
and owing thereon; and
WHEREAS, the Note is secured by a mortgage made by Mortgagor to
Mortgagee, dated June 30, 1989 and recorded on July 6, 1989 in the land
records of New York County, at Reel 1596, Page 2455 (the "Mortgage"), which
Mortgage secured the Note, and encumbers the property more fully described
on Exhibit A attached hereto and made a part hereof; and
WHEREAS, the Note is further secured, in part, by an Assignment
of Leases Agreement between Mortgagor, as Assignor, and Mortgagee, as
Assignee, dated June 30, 1989 and recorded on July 6, 1989 in the land
records of New York County, at Reel 1597, Page 7 (the "Assignment of
Leases"); and
WHEREAS, the Note is further secured, in part, by an Assignment
of Rents between Mortgagor, as Assignor, and Mortgagee, as Assignee, dated
June 30, 1989 and recorded on July 6, 1989 in the land records of New York
County, at Reel 1597, Page 1 (the "Assignment of Rents"); and
WHEREAS, Mortgagor has requested that Mortgagee grant its consent
to certain transactions proposed to be entered into by Mortgagor, and in
connection with such consent, the parties have agreed to amend certain of
the terms of the Note and the Mortgage to provide for, among other things,
modification of certain payment terms under the Note; and
WHEREAS, Mortgagor and Mortgagee desire to amend the Mortgage,
the Assignment of Rents, and the Assignment of Leases as set forth herein;
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NOW, THEREFORE, in consideration of the terms, covenants and
conditions set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Mortgagor and
Mortgagee hereby agree as follows:
1. The terms "Mortgage," "Note," "Assignment of Leases" or
"Assignment of Rents," as used in this Amendment or in the Mortgage, the
Note or any other document, instrument or agreement executed by Mortgagor
and Mortgagee, shall include any amendments, modifications or supplements
thereto entered into from time to time, including (without limitation) the
amendments entered into as of the date hereof. Each capitalized term used
herein and not otherwise defined herein shall have the meaning assigned to
it in the Mortgage.
2. The Mortgagee's address in the first paragraph of the
Mortgage and in the tenth through twelfth lines of Section 7.04 shall
hereby read as follows:
"c/o The Real Estate Investment Group (B-19)
John Hancock Place
P.O. Box 111
Boston, MA 02117
Attention: Alan R. Cohen"
3. The reference to the form of Note in the last sentence of
Section 1.01 and the first sentence of Section 1.02 of the Mortgage shall
be deemed to refer to the Note, as amended, modified or supplemented from
time to time, including (without limitation) by the First Amendment to
Note, dated as of the date hereof, between Mortgagor and Mortgagee (the
"Other Amendment").
4. Section 2.09.2(c) of the Mortgage is amended by inserting,
at the end of such Section 2.09.2(c), the following:
"In amplification of, and not in limitation of, the
foregoing, Mortgagor shall not grant any consent,
approval or waiver with respect to any proposed
assignment or subletting by a lessee under a Space
Lease (including, without limitation, by Pany Rental,
Inc. or Imaging Video Ink) without having first
obtained the written consent of Mortgagee."
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5. Section 2.09.2 is further amended by inserting the following
as a new Section 2.09.2(d) after Section 2.09.2(c):
"(d) The parties hereby confirm that Mortgagee, at the
request of Mortgagor, has consented to the execution
and delivery by Mortgagor of Space Leases dated as of
June 1, 1994, between (i) Mortgagor and Pany Rental,
Inc. and (ii) Mortgagor and Imaging Video Ink.
Mortgagor hereby acknowledges and confirms that,
notwithstanding any terms and conditions set forth in
the foregoing Space Leases, such consent by Mortgagee
does not constitute a waiver of any rights or remedies
of Mortgagee, or obligations of Mortgagor, set forth in
this Mortgage, and in the event of any conflict or
inconsistency between the terms and conditions
contained in such Space Leases and the terms and
conditions contained in this Mortgage, then the terms
and conditions contained in this Mortgage shall govern
and prevail. In addition, in amplification of, and not
in limitation of, the provisions of Section 2.09.2(a)
hereof, Mortgagor hereby agrees that it shall not enter
into, or consent to, any amendment, modification or
supplement to the foregoing Space Leases without having
obtained the prior written consent of Mortgagee
thereto."
6. Section 4.04 of the Mortgage is amended by inserting,
immediately between the second and third sentences thereof, the following:
"Mortgagor shall deliver to Mortgagee the
information and data detailed on Schedule 2 attached
hereto and made a part hereof, within the time periods
specified in said Schedule."
7. The instrument entitled "Schedule 2" and attached to this
Amendment shall be deemed to be attached as Schedule 2 to the Mortgage.
8. (a) Section 5.01(A) of the Mortgage is hereby amended by
deleting the period at the end of Section 5.01(n), and by inserting,
immediately after Section 5.01(A)(n), the following:
"or (o) if an Event of Default has occurred under
any of the Additional Collateral Documents."
(b) Section 5.01(C) of the Mortgage is hereby amended by
deleting the phrase "(h) through (n)" from the third line thereof and by
inserting the phrase "(h) through (o)" in its place.
(c) The Mortgage is hereby amended by inserting,
immediately after Section 5.01(E), the following:
"(F) As used in this Section 5.01, the term
"Additional Collateral Documents" shall mean, col
lectively, the following documents, as they may be
amended, modified or supplemented from time to time:
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(i) Assignment, Pledge and Security Agreement,
dated as of the date hereof, between Mortgagor, as
Pledgor, and Mortgagee, as Pledgee;
(ii) Assignment, Pledge and Security Agreement,
dated as of the date hereof, between Imaging Video
Incorporated, as Pledgor, and Mortgagee, as Pledgee;
(iii) Note Pledge Agreement, dated as of the
date hereof, between Mortgagor, as Pledgor, and Mort
gagee, as Pledgee;
(iv) Note Pledge Agreement, dated as of the
date hereof, between S. Richard DiBona, as Pledgor, and
Mortgagee, as Pledgee;
(v) Note Pledge Agreement, dated as of the
date hereof, between Milton Keslow, as Pledgor, and
Mortgagee, as Pledgee;
(vi) Note Pledge Agreement, dated as of the
date hereof, between Imaging Video Incorporated, as
Pledgor, and Mortgagee, as Pledgee;
(vii) Note Pledge Agreement, dated as of the
date hereof, between Sandra Keslow, as Pledgor, and
Mortgagee, as Pledgee;
(viii) Pledge Agreement, dated as of the date
hereof, between S. Richard DiBona and Milton Keslow, as
Pledgor, and Mortgagee, as Pledgee; and
(ix) Lockbox Agreement, dated as of the date
hereof, between Mortgagor and Mortgagee."
9. The term "Space Leases" as used in the Mortgage and the term
"Leases" and "leases" as used in the Assignment of Leases and the
Assignment of Rents shall be deemed to include, without limitation, the
following:
(i) Lease, dated as of the date hereof, between Mortgagor,
as Landlord, and Pany Rental, Inc., as Tenant, as the same may
hereafter be amended, modified or supplemented from time to time; and
(ii) Lease, dated as of the date hereof, between Mortgagor,
as Landlord, and Imaging Video Ink, as Tenant, as the same may
hereafter be amended, modified or supplemented from time to time.
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10. In order to induce the Mortgagee to enter into
this Amendment, the Mortgagor hereby represents and warrants to the
Mortgagee that (x) no Event of Default (as such term is defined in the
Mortgage) exists as of the date hereof under the Mortgage after giving
effect to this Amendment and (y) all of the representations and warranties
contained in each of the Mortgage, the Assignment of Leases and the
Assignment of Rents are true and correct in all material respects as of the
date hereof both before and after giving effect to this Amendment with the
same effect as though such representations and warranties had been made on
and as of the date hereof.
11. Except as specifically amended hereby, all terms
and provisions of each of the Mortgage, the Assignment of Leases and the
Assignment of Rents shall remain in full force and effect and are hereby
ratified and confirmed and each of the Mortgage, the Assignment of Leases
and the Assignment of Rents as amended hereby shall, from and after the
date of this Amendment, each be read as a single integrated document incor
porating the changes effected by this Amendment. Except as expressly
provided hereby the execution and delivery of this Amendment does not
constitute a waiver of any obligation of the Mortgagor under any of the
Mortgage, the Note, the Assignment of Leases or the Assignment of Rents.
12. This Amendment may be executed in any number of
counterparts, each of which shall be an original, and all of which together
shall constitute but one and the same instrument.
13. This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the law of
the State of New York.
14. Upon the execution and delivery hereof by the parties
hereto, this Amendment shall be effective as of the date hereof.
15. Mortgagor shall, from time to time at the request of the
Mortgagee, execute and deliver to Mortgagee any other documents or
instruments, and shall take such other action as may reasonably be required
more effectively to carry out the terms and intent of this Amendment.
16. Mortgagee has made no representations, warranties or
covenants to or with Mortgagor with respect to the subject matter of this
Amendment except as expressly provided herein. This Amendment represents
the entire agreement between Mortgagor and Mortgagee with respect to such
matters, and all prior negotiations and agreements relating thereto are
hereby merged into this Amendment.
17. Mortgagor agrees to pay all costs and expenses incurred by
Mortgagee in connection with this Amendment and the Other Amendment,
including, without limitation, the preparation, execution and delivery of
this Amendment and the Other Amendment, recording fees, title insurance
costs and attorney's fees, costs and disbursements.
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IN WITNESS WHEREOF, each of the Mortgagor and Mortgagee have
caused this Amendment to be duly executed as of the date first written
above.
MORTGAGOR:
GENERAL CAMERA CORPORATION
By: MILTON KESLOW
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Name: Milton Keslow
Title: Vice President
MORTGAGEE:
JOHN HANCOCK REALTY INCOME FUND - II LIMITED
PARTNERSHIP
By John Hancock Realty Equities, Inc., its
general partner
By: WILLIAM M. FITZGERALD
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Name: William M. Fitzgerald
Title: President
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 1ST day of JUNE, in the year 1994, before me personally
came Milton Keslow, to me personally known, and known to me to be the Vice
President of GENERAL CAMERA CORPORATION, and who resides at 77 Brewster
Rd., Scarsdale, NY and to be the individual described in and who executed
the above instrument in the corporate name, and he duly acknowledged to me
that he executed the same for and on behalf of said corporation.
AVRON I. BROG
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Notary Public
[NOTARIAL SEAL]
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STATE OF MA )
: ss.:
COUNTY OF Suffolk )
On this 1st day of June, in the year 1994, before me, personally
came William Fitzgerald, to me known who, being by me duly sworn, did
depose and say that he/she resides at 200 Berkeley St., Boston, MA 02117;
that he/she is a President of JOHN HANCOCK REALTY EQUITIES, INC., the
general partner of JOHN HANCOCK REALTY INCOME FUND - II LIMITED
PARTNERSHIP, the limited partnership described in and which executed the
foregoing instrument; and that he/she signed his/her name thereto by order
of said entities.
Alan R. Cohen
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Notary Public
[NOTARIAL SEAL]
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SCHEDULE A
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PARCEL I:
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ALL that certain plot, 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 on the southerly side of 36th Street, distant 250 feet
easterly from the corner formed by the intersection of the said southerly
side of 36th Street with the easterly side of 11th Avenue;
RUNNING THENCE Southerly parallel with said easterly side of 11th Avenue,
98 feet 9 inches to the center line of the block;
THENCE Easterly along the said center line of the block, 100 feet;
THENCE Northerly again parallel with the said easterly side of 11th Avenue
98 feet, 9 inches to said southerly side of 136th Street;
THENCE Westerly along the said southerly side of 36th Street, 100 feet, to
the point or place of BEGINNING.
PARCEL II
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ALL that certain plot, 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 on the southerly side of 36th Street, distant 387 feet
6 inches westerly from the corner formed by the intersection of the
westerly side of Tenth Avenue with the southerly side of 36th Street;
THENCE Westerly along the southerly side of 36th Street 62 feet 6 inches;
THENCE Southerly and parallel with Tenth Avenue 98 feet 9 inches to the
center line of the block between 35th and 36th Streets;
THENCE Easterly along said center line 62 feet 6 inches;
THENCE Northerly and parallel with Tenth Avenue 98 feet 9 inches to the
southerly side of 36th Street the point or place of BEGINNING.
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Schedule 2
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Document Required Delivery Date
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1. Preliminary 12/31/93 personal finan- June 15, 1994
cial statements of S. Richard DiBona,
Margaret DiBona, Milton Keslow, and
Sandra Keslow (the "Guarantors")
2. Final 12/31/93 personal financial September 15, 1994
statements of each of the Guarantors
3. 1992 federal tax returns of each Prior to June 1, 1994
of the Guarantors
4. 1993 federal tax returns of each of October 15, 1994
the Guarantors
5. Preliminary 12/31/93 financial Prior to June 1, 1994
statements of General Camera Corp.
6. Final 12/31/93 financial statements June 15, 1994
of General Camera Corp. and IV Ink
7. Equity (Net Worth) statements of On or before May 1
General Camera Corp. and IV Ink for of the succeeding
calendar years ending December calendar year
31, 1994, 1995 and 1996. [Note:
These statements shall be delivered
concurrently with the 12/31 finan-
cial statements of General Camera
Corp. and IV Ink.]
8. Projection of Income and Prior to June 1, 1994
Expenses for balance of 1994 and
for 1995 and 1996 (on a calendar
year basis) for General Camera
Corp.
9. Copies of all intercompany notes, Prior to June 1, 1994
loan agreements, etc. between IV
Ink, IV Inc., General Camera Corp.
and the Guarantors, together with
a schedule detailing the interest
rate for each instrument and showing
the annual interest and principal
payments under each such instrument
for the next three (3) years
10. Quarterly Income and Expense State- 30 days after
ments for General Camera Corp. the end of each
beginning with the calendar quarter calendar quarter
ending September 30, 1994)
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