MODIFICATION TO RESERVE ESCROW AGREEMENT
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THIS AGREEMENT made and entered into as of the first day of
January, 1994, by and between NORMAN S. GELLER, THOMAS M. BENNETT, JEFFREY
GLUSKIN and NEIL G. BLUM, BRIAN K. ELLISON and JULIA C. PARKS, as Trustees
of 260 FRANKLIN STREET ASSOCIATES TRUST under a Declaration of Trust dated
May 16, 1986, duly recorded with the Suffolk County Registry District of
the Land Court as Document No.405198, as amended in accordance with the
Certificate of Trustee as to Appointment of Additional Trustees and First
Amendment to Declaration of Trust establishing 260 Franklin Street
Associates Trust, dated September 12, 1986, duly recorded with Suffolk
County Registry of Deeds as Instrument No. 374 of September 26, 1986 and
filed with the Suffolk County Registry District of the Land Court as
Document No. 411174 and as further amended by Certificate of Trustee as to
removal of certain Trustees and appointment of Additional Trustees dated
July 23, 1990, duly recorded with the Suffolk County Registry of Deeds in
Book 16416, Page 342 and Document No. 467674, with appointment of six
Trustees registered as Document No. 467675 through 467680, with the Suffolk
County Registry District of the Land Court, as further amended in
accordance with a Certificate of Trustee as to Removal of Certain Trustees
and Appointment of Additional Trustees, dated May 20, 1992, duly recorded
with Suffolk County Registry of Deeds as Document No. 487549, having a
mailing address c/o JMB Realty Corporation, 900 North Michigan Avenue,
Chicago, Illinois 60611 (hereinafter called "Borrower")' TEACHERS INSURANCE
AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation having a mailing
address of 730 Third Avenue, New York, New York 10017 ("Lender"); and The
BOSTON MORTGAGE COMPANY, INC. a corporation, whose address is 25 Mall Road,
Burlington, Massachussets 01803-0918 (hereinafter called "Escrow Agent").
W I T N E S S E T H:
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WHEREAS, Borrower, Lender and Escrow Agent are parties to that
certain Reserve Escrow Agreement dated January 1, 1991 which agreement was
entered into as consideration for Lender agreeing to the terms of that
certain Second Mortgage Modification and Consolidation Agreement of even
date therewith recorded with the Suffolk County Registry of Deeds as
Instrument No. 308 and filed with the Suffolk County Registry District of
the Land Court as Document No. 482106;
WHEREAS, Borrower has requested that Lender agree to modify the
terms under which Available Cash flow is required to remain in the Reserve
Account. All capitalized terms not otherwise defined herein shall have the
meaning ascribed thereto in either the Reserve Escrow Agreement or the
Second Mortgage Modification and Consolidation Agreement; and
WHEREAS, Lender is willing to accede to Borrower's request
solely upon the terms set forth in this Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE MORTGAGED PREMISES, the
parties hereto do hereby covenant and agree as follows:
1. Notwithstanding the requirement that Available Cash Flow
be deposited quarterly under the Reserve Escrow Agreement, Available Cash
flow shall be actually determined on a calendar year basis and to the
extent Escrow Agent determines that the amount ("Excess Deposits")
deposited quarterly as Available Cash Flow would not have been deposited if
calculations under the Reserve Escrow Agreement had been made on an annual
basis, Escrow Agent shall remit such Excess Deposit to Borrower. In making
such determinations, the following provisions shall control:
a. Only quarterly deposits made for a particular
calendar year on account of Available Cash Flow shall be used for making
such determination and in no event can money deposited in the Reserve
Account for a preceding calendar year be used for determining any
remittance due Borrower pursuant to this Agreement in a subsequent year.
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b. Escrow Agent shall determine whether there have
been any Excess Deposits based upon analyzing and reconciling the certified
quarterly statements submitted to Lender pursuant to Paragraph 9(a) of the
Second Mortgage Modification and Consolidation Agreement.
c. In the event that a quarterly statement submitted
for a subsequent quarter shows that some of all of the Available Cash Flow
deposited for the previous quarters of such calendar year would not have
been deposited if calculations of Available Cash Flow had been determined
for all such quarterly periods (e.g., for a nine month period instead of
being determined quarterly), Escrow Agent shall remit the amount so
determined to be such Excess Deposit to the Borrower following such
determination.
d. To the extent any annual financial or
reconciliation statement or audit shall show that on an annual basis
Borrower would not have been entitled to a refund (i.e., no Excess Deposit
did in fact occur), Borrower shall within five (5) days of demand,
redeposit into the Reserve Account the amount of any money paid Borrower by
Escrow Agent as an Excess Deposit together with interest at the applicable
fixed interest rate set forth in the Note and any failure to make such
payment within five (5) days of demand shall constitute a default under the
Second Mortgage Modification and Consolidation Agreement, at Lender's
option, affording Lender with all rights and remedies as provided in the
Second Mortgage Modification and Consolidation Agreement respecting
Mortgagor defaults.
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2. Except as herein contained, all the provisions of the
Reserve Escrow Agreement and Second Mortgage Modification and Consolidation
Agreement shall continue to remain unchanged and in full force and effect
and Borrower, Lender and Escrow Agent hereby ratify and reaffirm all of
such provisions, agree to comply with each and everyone of such provisions,
and Borrower confirms that it has no defense or offset to its liability to
pay the Consolidated Indebtedness with fixed and residual interest and the
yield maintenance amount due Lender in accordance with the terms of the
Second Mortgage Modification and Consolidation Agreement.
3. Borrower represents and warrants that it has full power
and authority to execute this Agreement for the uses and purposes herein
contained.
4. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
The party or parties executing this Agreement for and on behalf
of Borrower are doing so in their capacity of Trustee and not as
individuals. As such, any liability for breaching any of the Borrower's
obligations hereunder shall be limited to the Premises, trust assets and,
the moneys deposited in escrow under this Agreement.
Without limitation on the foregoing, but in addition thereto,
neither Borrower nor any Trustee, advisor or any other entity shall be
personally liable in any manner or to any extent under or in connection
with this Agreement or any other agreement or instrument entered into in
connection herewith; provided, however, that the foregoing shall not affect
or impair any obligations under a certain Indemnity and Payment Agreement
of even date herewith given by Carlyle Real Estate Limited Partnership-XV
and Carlyle Real Estate Limited Partnership-XVI to Lender.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
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Witness not personally but solely as
Trustee of 260 Franklin Street
Associates Trust as aforesaid
for self and co-trustees
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By:
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THE BOSTON MORTGAGE COMPANY, INC
ATTEST:
By:
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Name: Name: Harold C. McKenna
Title: Title: Chairman
[SEAL]
ATTACHED TO AND FORMING PART OF THAT CERTAIN MODIFICATION TO RESERVE ESCROW
AGREEMENT DATED AS OF JANUARY 1, 1994.
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The undersigned, as parties to that certain Indemnity and
Payment Agreement dated January 1, 1991, hereby consent to the execution by
the Borrower of this Modification to Reserve Escrow Agreement and do hereby
covenant and agree that their respective obligations under such Indemnity
and Payment Agreement are and will be unaffected by Borrower's execution of
this Agreement and that such Indemnity and Payment Agreement will cover
Borrower's obligations hereunder.
CARLYLE REAL ESTATE LIMITED CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XV PARTNERSHIP-XVI,
an Illinois Limited an Illinois Limited
Partnership Partnership
By its sole Managing By its sole Managing
General Partner General Partner
JMB Realty Corporation, a JMB Realty Corporation,
Delaware Corporation a Delaware Corporation
By: By:
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(Corporate Seal) (Corporate Seal)
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ACKNOWLEDGMENT
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STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK ) , 1995
On this day of , 1995, before me appeared
to me personally known, ----------------------------,
who, being by me dully sworn, did say that she is the
of Teachers Insurance and Annuity ---------------------
Association of America and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by authority
of its Board of Trustees, and said acknowledged
said instrument to be the free ------------------- act and deed of said
corporation,
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Notary Public
My commission expires:
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ACKNOWLEDGEMENT
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STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
On this day of Janaury, 1995
-------
Then personally appeared the above named
and acknowledged the foregoing as free -------------------
- ---- act and deed, before me,
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Notary Public
My commission expires:
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ACKNOWLEDGEMENT
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STATE OF ILLINOIS )
) SS:
COUNTY OF COOK ) , 1995
On this day of , 1995, before me
appeared to me personally -------------------------,
known, who, being by me dull sworn, did say that they are the
of JMB Realty Corporation, the managing ---------------------,
general partner of Carlyle Real Estate Limited Partnership XV and Carlyle
Real Estate Limited Partnership XVI (collectively the "Limited
Partnerships") and that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was signed and
sealed in behalf of said corporation and Limited Partnerships by authority
of its Board of Directors, and said acknowledged said
- -------------------- instrument to be the free act and deed of said
corporation and Limited Partnerships.
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Notary Public
My commission expires:
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