FIRST AMENDMENT TO LOAN AGREEMENT
AND OTHER LOAN DOCUMENTS
This First Amendment to Loan Agreement and Other Loan Documents (this
"AGREEMENT") is entered into as of October .l, 2002, by and between WELLSFORD/
WHITEHALL HOLDINGS, L.L.C., a Delaware limited liability company ("BORROWER"),
and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("Lender").
This Agreement is made with reference to the following facts:
RECITALS
A. Lender has made a loan to Borrower in the aggregate principal amount of
up to $352,600,000.00 (the "LOAN"), pursuant to terms of that certain Loan
Agreement dated June 25, 2001 by and between Borrower and Lender (the "LOAN
AGREEMENT"). Capitalized terms used in this Agreement and not defined shall have
the meanings assigned to such terms in the Loan Agreement. The Loan is evidenced
by that certain Promissory Note dated June 25, 2001, executed by Borrower to the
order of Lender in the face principal amount of $352,600,000.00 (the "NOTE").
B. Borrower has requested that Lender agree to make an additional advance
to Borrower in the aggregate amount of up to $6,500,000.00. The funds from such
additional advance shall be used to refinance that certain real property located
in Warren, New Jersey, more particularly described in Exhibit "A" attached
hereto and incorporated herein (the "SOMERSET' TECH CENTER"), and to pay certain
closing costs relating to such additional advance. Borrower has also requested
that Lender reallocate a portion of the Working Capital Advance Allocation to
pay for or reimburse Borrower for certain costs in respect of necessary and
customary replacements or substitutions to improvements to the Somerset Tech
Center. Subject to the terms and conditions contained in this Agreement, Lender
has agreed to modify the Loan Agreement and other Loan Documents to increase the
amount of the Loan, and to reallocate a portion of the Working Capital Advance
Allocation, as requested by Borrower.
C. As of the date of this Agreement (and exclusive of the Additional
Advance described below), the outstanding principal balance of the Loan is
$258,060,434. The unfunded balance of the Loan is $72,230,000, consisting of the
Nomura Holdback of $28,000,000, the Mt. Airy Holdback of $200,000, the Gateway
Tower Holdback of $1,800,000 and the Working Capital Advance Allocation of
$42,230,000. Pursuant to the terms of the Loan Agreement, the Shattuck Office
Center Holdback, in the amount of $7,088,000, and the portion of the Working
Capital Advance Allocation which was originally allocated to the Shattuck Office
Center Property, in the amount of $370,000, were canceled.
D. As used in this Agreement, the term "LOAN DOCUMENTS" means the Loan
Agreement, the Note, the Deeds of Trust, the Assignments of Leases, and the
other "Loan Documents" described in the Loan Agreement. This Agreement, the
Amendments described below and the Amended and Restated Note described below
also shall constitute Loan Documents.
AGREEMENT
NOW, THEREFORE, with reference to the foregoing Recitals and information,
and in consideration of the mutual covenants and agreements contained in this
Agreement, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower and Lender agree as follows:
1. Recitals; Representations and Warranties. The above statement of facts
set forth in the Recitals is true and correct, and the Recitals hereby are
incorporated herein as an agreement of Borrower and Lender. Borrower hereby
represents and warrants to Lender that (a) no Default or Event of Default has
occurred or exists, and (b) all representations and warranties of Borrower
contained in the Loan Agreement or in any of the other Loan Documents (as the
Loan Agreement and such other Loan Documents are amended hereby) are true and
correct as of the date hereof, excluding the representation in Section 6.28
regarding the Shattuck Office Center Property.
2. Additional Advance. Subject to the terms and conditions of this
Agreement, Lender agrees to provide Borrower, and Borrower accepts, an
additional advance (the "ADDITIONAL ADVANCE") in the principal sum of up to
$6,500,000.00. The Additional Advance, together with the outstanding principal
balance and remaining unfunded proceeds of the original Loan, shall be evidenced
by the- Amended and Restated Note described below and shall be secured by the
Deeds of Trust and the other Collateral Documents.
2.1. Initial Advance. Upon fulfillment of the conditions set forth in
Section 8 Lender shall disburse (a) a portion of the Additional Advance, equal
to the commitment fee payable to Lender (described in Section 8.1 (a) below) and
all other sums owing to Lender described in Section 8 below, to itself, in
payment of the commitment fee and such other sums (to the extent not paid
through escrow in accordance with clause (b) of this Section 2.1 (b) a portion
of the Additional Advance by wire transfer to Commonwealth Land Title Company
for the escrow established to consummate the closing of the transactions
contemplated by this Agreement, to be disbursed by Commonwealth Land Title
Company (upon satisfaction of the conditions set forth in Lender's escrow and
recording instructions) to pay certain closing costs, and (iii) the balance of
the Additional Advance less the amount of the GMAC Holdback) by wire transfer to
Borrower to finance or refinance the Somerset Tech Center.
2.2. GMAC Holdback. Lender shall disburse a portion of the Additional
Advance in the amount of $400,000 (the "GMAC HOLDBACK") in one or more Advances,
subject to satisfaction of the following conditions as to each such Advance:
(a) Borrower shall have satisfied the terms and conditions set forth in
Part B of Schedule 2.1 to the Loan Agreement;
(b) Advances shall not be made more frequently than once per calendar
month;
(c) After giving effect to the requested Advance, the undisbursed portion
of the GMAC Holdback (if any) shall not be less than the then remaining amount
(if any) of the "Allowance" defined and described in Section 5(a) of Exhibit C
to the Lease dated February 28, 2001 between Borrower, as landlord, and GMAC
Home Services, as Tenant, covering space at the Somerset Tech Center. Borrower
shall deliver to Lender evidence reasonably satisfactory to Lender, evidencing
the then remaining amount of the Allowance.
3. Consolidation of Indebtedness. The original Loan is consolidated with
the Additional Advance to form a single indebtedness (the "MQREGATE LOAN") in
the principal amount of $336,790,434.00, which is the sum of the amounts
described in Recital C plus the Additional Advance. The Aggregate Loan shall be
evidenced by that certain Amended and Restated Promissory Note of even date
herewith executed by Borrower in favor of Lender in the face amount of
$336,790,434.00 (the "AMENDED AND RESTATED NOTE"). The Amended and Restated Note
shall amend, restate and replace the Note in its entirety.
Amendments to Loan Agreement. Borrower and Lender hereby amend the Loan
Agreement as follows:
4.1. Definition of GECC. The definition of "GECC" set forth in Section
1.1(61) is amended and restated in its entirety to read as follows: "'GECC"
means General Electric Capital Corporation, a Delaware corporation."
4.2. Definition of Maximum Loan Amount. The definition of "Maximum Loan
Amount" set forth in Section 1.1(93) is amended and restated in its entirety to
read as FOLLOWS:
"'MAXIMUM LOAN AMOUNT" means $336,790,434.00."
4.3. Definition of Note. The definition of "Note" set forth in Section
1.1(107) of the Loan Agreement is amended and restated in its entirety to read
as follows: "'NOTE" shall mean the Amended and Restated Promissory Note dated
October 1, 2002, in the stated principal amount of Three Hundred Thirty-Six
Million Seven Hundred Ninety Thousand Four Hundred Thirty Four and No/100
Dollars ($336,790,434.00) executed by Borrower and payable to the order of
Lender, in evidence of the Loan."
4.4. New Definitions. Section 1.1 of the Loan Agreement is hereby amended
to add the following new definitions to the end thereof: "(156) "FIRST
AMENDMENT" shall mean that certain First Amendment to Loan Agreement and Other
Loan Documents dated as of October 1, 2002 entered into between Borrower and
Lender." "(157) "FIRST AMENDMENT DATE" shall mean October_, 2002."
4.5. Definition of Borrower Properties. The definition of "Borrower
Properties" set forth in Section 1.1 of the Loan Agreement is hereby amended to
include, in addition to all other real property currently included within such
definition, (a) the Somerset Tech Center, and (b) all other "Property" described
in the Deed of Trust encumbering the Somerset Tech Center.
4.6. Working Capital Budgets. Effective as of the First Amendment Date, the
remaining undisbursed Working Capital Advance Allocation shall be reallocated
among the Properties (including Somerset Tech Center) in accordance with the
Working Capital Budgets set forth in revised Schedule 2.1(5) attached hereto.
4.7. Amendment to Section 2.1(5)(d)(ii). Section 2.1(5)(d)(ii) of the Loan
Agreement is amended and restated in its entirety to read as follows: "(ii)
subject to paragraph (e) below, an amount which, when added to the Loan balance
and all undisbursed Loan funds allocated to the Mount Airy Holdback and the
Gateway Tower Holdback and the GMAC Holdback (as defined r- Z. Holdback the
First Amendment), is equal to the lesser of (A) the Cash On Cash Limit CU I.,~%
Amount and (B) the Debt Service Coverage Ratio Limit Amount; and" Mc;!:: 1.3}G
4.8. Amendment to Section 2.3(4). Section 2.3(4) of the Loan Agreement is
amended and restated in its entirety to read as follows:
"(4) PREPAYMENT. Except as provided below, at any time during the Term,
upon not less than ten (10) days' prior written notice to Lender, Borrower may
prepay the Loan in whole or in part without premium or penalty, provided that
each such prepayment shall be accompanied by the payment of accrued and unpaid
interest on the principal amount being prepaid, through the date of prepayment,
and any other costs or expenses which are payable to Lender in accordance with
the terms hereof or any other Loan Document. The foregoing notwithstanding, from
the Closing Date through December 31, 2002 prepayment (in whole or in part)
shall only be permitted in connection with a sale or other transfer of a
Property to a Person which is not an Affiliate of Borrower or of any Borrower
Party. From and after January 1, 2003, Loan shall be closed to partial
prepayment from a Refinance (including a Refinance of any or all of the Nomura
Properties). A prepayment premium equal to two percent (2.0%) of the outstanding
principal balance of the Loan shall be payable if an Event of Default occurs and
the Loan is accelerated prior to January 1, 2003. Borrower acknowledges that the
prepayment premium required by this Section 2.3(4) constitutes partial
compensation to Lender for the costs of reinvesting the Loan proceeds and for
loss of the contracted rate of return on the Loan. Furthermore, Borrower
acknowledges that the loss that may be sustained by Lender as a result of such
prepayment by Borrower is not susceptible of precise calculation and the
prepayment premium represents the good faith effort of Borrower and Lender to
compensate Lender for such loss. Borrower confirms that Lender's agreement to
make the Loan at the interest rate and on the other terms set forth herein
constitutes adequate and valuable consideration, given individual weight by
Borrower, for the prepayment provision set forth in this Section."
4.9. Amendment to Section 3.1(1). The following is hereby added to the end
of Section 3.1(1) of the Loan Agreement: "In addition to the foregoing insurance
requirements, Borrower shall keep in full force and effect through July 1, 2003
the existing insurance policies, issued by Lexington Insurance Company and
National Fire and Marine Insurance Company, which insure the buildings and
improvements located at each Borrower Property against loss or damage by acts of
terrorism (and while such policies are in effect, Lender shall be listed as a
"mortgagee" and "loss payee" thereunder); provided that Borrower shall not be in
breach of this covenant if either of such policies terminates due to dissolution
of the insurer or a unilateral cancellation of such policy by the insurer (other
than a cancellation caused by any action or inaction by Borrower which entitled
the insurer to cancel the policy)."
4.10. Schedules. Schedules 1.1(A), 1.1(B), 2.1(5), 4.2, 5.1 (A)-5.1(F),
6.4, 6.5, 6.6, 6.7, 6.10, 6.26, 6.27 and 8.19 to the Loan Agreement are hereby
replaced in their entirety with Schedules 1.1(A), 1.1(B), 2.1(5), 4.2,
5.1(A)-5.1(F), 6.4, 6.5, 6.6, 6.7, 6.10, 6.26, 6.27 and 8.19 respectively,
attached to this Agreement. All defined terms making specific reference to any
information contained within any of these Schedules are hereby amended to refer
to such Schedule(s) as attached hereto.
5. Amendments to Loan Documents. Borrower and Lender hereby amend the Loan
Documents as follows:
5.1. References to Loan and Note. All references to the Loan in the Loan
Documents hereafter shall be deemed to be references to the Aggregate Loan, and
all references to the Note hereafter shall be deemed to be references to the
Amended and Restated Note.
5.2. Amendment to Hazardous Substances Indemnity Agreement. The definition
of "Premises" in the recitals of the Hazardous Substances Indemnity Agreement is
hereby amended to include, in addition to all other Property currently included
within such definition, the Somerset Tech Center. Borrower hereby reaffirms and
restates all representations, warranties, covenants and agreements contained in
the Hazardous Substances Indemnity Agreement, as such representations,
warranties, covenants and agreements apply to the Somerset Tech Center. WWPH and
WWG shall execute the Consent of Borrower Parties attached hereto, and Gateway
Tower Owner shall execute the Consent of Guarantor attached hereto, to evidence
their consent to the foregoing amendment to the Hazardous Substances Indemnity
Agreement.
5.3. Amendment to Agreement Regarding Asset Management. The Agreement
Regarding Asset Management is hereby amended to include the Somerset Tech Center
within the definition of "Property" used therein.
5.4. Collateral Documents. The Deeds of Trust and all other Collateral
Documents shall secure, in addition to all other indebtedness and obligations
secured thereby, the payment and performance of all present and future
indebtedness and obligations of Borrower under (a) this Agreement, (b) the
Amended and Restated Note, and (c) any and all amendments, modifications,
renewals and/or extensions of this Agreement or the Amended and Restated Note,
regardless of whether any such amendment, modification, renewal or extension is
evidenced by a new or additional instrument, document or agreement. The Deed of
Trust which Borrower is executing concurrently herewith and which shall encumber
the Somerset Tech Center shall also constitute one of the Collateral Documents.
6. Replacement of Front Building at Somerset Tech Center. The Somerset Tech
Center is currently improved with two buildings, one of which is a currently
vacant single-story building located closest to the southern boundary of the
Somerset Tech Center (the "FRONT BUILDING"). Subject to the following terms and
conditions, Borrower shall be entitled to demolish the Front Building and
replace it with a new office building (together with any related improvements to
be constructed in connection therewith, the "NEW BUILDING") containing
approximately 60,000 net rentable square feet:
6.1. Prior to seeking a loan commitment from another lender to finance the
construction of the New Building (the "NEW BUILDING FINANCING"), Borrower
covenants to notify Lender in writing of its intention to seek such New Building
Financing and shall provide to Lender fifteen (15) Business Days to submit a
proposal to provide the New Building Financing. If Borrower elects to accept the
terms of such proposal, Lender shall provide the New Building Financing on such
terms as may be contained in the definitive documentation relating to the New
Building Financing executed by Lender, Borrower and the other parties thereto
(it being understood and agreed, however, that Lender shall not be required to
provide, and Borrower shall not be required to accept, any such. New Building
Financing except pursuant to definitive documentation that is executed and
delivered by Lender, Borrower and the other parties thereto). If Lender does not
make a proposal to provide the New Building Financing within fifteen (15)
Business Days after being given the opportunity to make such proposal, or
Borrower does not elect to accept Lender's proposal for the New Building
Financing, or Lender and Borrower do not execute and deliver definitive
documentation with respect to the New Building Financing within a reasonable
period of time after Borrower accepts Lender's proposal with respect to the New
Building Financing, Borrower may, subject to compliance with the provisions of
Sections 6.2 and 6.3 below, obtain the New Building Financing from such other
lender and on such terms as it shall, in its sole discretion, deem appropriate
("PERMITTED FINANCING").
6.2. Notwithstanding anything to the contrary contained herein, Borrower
shall not obtain any Permitted Financing unless, prior to or concurrently with
the closing of such Permitted Financing, Borrower shall have (a) satisfied all
conditions set forth in Section 2.4 of the Loan Agreement to the release of the
Somerset Tech Center from the Lien of the Loan Documents, other than the
requirement that the release be in connection with a sale or other transfer of
such Property to a Person that is not an Affiliate of Borrower or of any
Borrower Party; provided, however, that if such release occurs within six (6)
months of the First Amendment Date, the Release Payment shall be the greater of
(i) the Adjusted Loan Basis of the Somerset Tech Center and (ii) the minimum
amount which, when applied to the outstanding principal balance of the Loan,
would result in a Cash On Cash Return of at least eleven percent (11%) and a
Debt Service Coverage Ratio of at least 1.25 to 1.0; and (b) transferred the
Somerset Tech Center to an entity which may be related to Borrower, so long as
Borrower is not directly or indirectly liable on a recourse basis for any of
such entity's indebtedness or obligations to any Person.
6.3. If the New Building will be constructed with funds from a Permitted
Financing, then (a) Borrower shall not undertake any demolition or new
construction work at the Somerset Tech Center unless and until the Somerset Tech
Center has been released from the Lien of the Loan Documents in accordance with
Section 6.2 above, and (b) Section 6.4, Section 6.5, Section 6.6 and Section 6.7
below shall not apply.
6.4. If the New Building will be constructed with funds from Lender or with
funds from capital contributions to Borrower, then prior to undertaking any
demolition or new construction work, Borrower shall have delivered to Lender,
and Lender shall have reasonably approved:
(a) a detailed line item budget of all costs to be incurred in connection
with the demolition of the Front Building and the construction and lease-up of
the New Building (the "NEW BUILDING BUDGET");
(b) the final plans and specifications for the New Building, bearing the
signed approval thereof by the project architect, accompanied by the architect's
signed estimate, bearing the architect's seal, of the entire cost of completing
the New Building;
(c) evidence that all necessary approvals and consents regarding the New
Building have been obtained, and that the Somerset Tech Center, upon completion
of the New Building, will be in compliance with all applicable Laws (including
all zoning, parking, setback and other land use restrictions);
(d) copies of all building permits and other permits, licenses, consents
and approvals of all applicable Governmental Authorities relating to the New
Building, as well as copies of all construction contracts and other contracts
relating to the New Building; and
(e) if Borrower is funding the work from capital contributions, Borrower
shall have provided Lender with (i) evidence reasonably satisfactory to Lender
that Borrower has access to all capital funds necessary to complete the New
Building in accordance with the plans and New Building Budget approved by
Lender, and (ii) a guaranty of completion of the New Building in accordance with
the plans approved
6.5. Lender, which guaranty shall be in form and substance, and from WWG or
another guarantor reasonably satisfactory to Lender.
6.6. The New Building shall be constructed in accordance with all
applicable Laws. At such time as the foundations for the New Building have been
completed, Borrower shall cause the Title Company to issue to Lender an CLTA
102.5 (or local equivalent) foundation Endorsement to Lender's Title Policy for
the Somerset Tech Center.
6.7. Upon completion of the New Building, Borrower shall deliver to Lender
a certificate of occupancy covering the New Building, together with a written
certification from the architect retained in connection with the New Building
that the New Building has been completed in accordance with the plans approved
by Lender and that the New Building is fully operational and ready for occupancy
and use.
7. Anti-Terroism and Anti-Money Laundering Compliance.
7.1. Compliance with Anti-Terrorism Laws. Borrower represents, warrants and
covenants to Lender that Borrower, the Gateway Tower Owner and Borrower's other
direct and indirect wholly-owned subsidiaries (collectively with the Gateway
Tower Owner, the "BORROWER SUBSIDIARIES"), WWPII and WWG are not and shall not
be, and, after making due inquiry, that no Person who directly or indirectly
owns a controlling interest in or otherwise controls Borrower, WWPII or WWG
(each, a "CONTROLLING PERSON") is or shall be, (a) listed on the Specially
Designated Nationals and Blocked Persons List (the "SDN LIST") maintained by the
Office of Foreign Assets Control ("OFAC" Department of the Treasury, and/or on
any other similar list ("OTHER LISTS" and, collectively with the SDN List, the
"Lists") maintained by the OFAC pursuant to any authorizing statute, Executive
Order or regulation (collectively, "OFAC LAWS AND REGULATIONS"); or (b) a Person
(a "DESIGNATED PERSON") either (i) included within the term "designated
national" as defined in the Cuban Assets Control Regulations, 31 C.F.R Part 515,
or (ii) designated under Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order
No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) or a Person
similarly designated under any related enabling legislation or any other similar
Executive Orders (collectively, the "EXECUTIVE ORDERS"). The OFAC Laws and
Regulations and the Executive Orders are collectively referred to in this
Agreement as the "ANTI-TERRORISM LAWS". Borrower also shall require, and shall
take reasonable measures to ensure compliance with the requirement, that no
Person who owns any otherdirect interest in Borrower, WWPII or WWG is or SHALL
be listed on any of the Lists or is or shall be a Designated Person. This
Section 7.1 shall not apply to any Person to the extent that such Person's
interest in the Borrower is through a U.S. Publicly-Traded or Pension Entity. As
used in this Agreement, "U.S. PUBLICLY-TRADED OR PENSION ENTITY" means either
(A) a Person (other than an individual) whose securities are listed on a
national securities exchange, or quoted on an automated quotation system, in the
United States, or a wholly-owned subsidiary of such a Person, or (B) an
"employee pension benefit plan" or "pension plan" as defined in Section 3(2) of
ERISA.
7.2. Compliance by Interest Holders. Borrower shall require each Person
that proposes to become a Controlling Person after the First Amendment Date and
that is not a U.S. Publicly-Traded or Pension Entity to sign, and to deliver to
Borrower (and Borrower shall deliver to Lender), an Interest Holder
Certification and Agreement, substantially in the form attached as Exhibit "B"
("INTEREST HOLDER AGREEMENT"). No transfer of an interest which would otherwise
cause such a Person to become a Controlling Person shall be effective unless and
until the transferee has executed and delivered to Borrower an Interest Holder
Agreement as required above, and Borrower has delivered a copy thereof to
Lender. From time to time upon the written request of Lender, Borrower shall
deliver to Lender a schedule of the name, legal domicile address and (for
entities) place of organization of each holder of a direct interest in Borrower,
WWPII or WWG.
7.3. Anti-Terrorism Policies. Borrower agrees to adopt and maintain
adequate policies, procedures and controls to ensure that it and each of the
Borrower Subsidiaries is in compliance with all Anti-Terrorism Laws and related
government guidance (such policies, procedures and controls are collectively
referred to in this Agreement as "BORROWER ANTI-TERRORISM POLICIES"). Borrower
further agrees to make the Borrower Anti-Terrorism Policies, and the respective
policies, procedures and controls for Persons who are or are to become
Controlling Persons or direct members in Borrower (such policies, procedures and
controls are collectively referred to as "INVESTOR ANTI-TERRORISM POLICIES"),
together with the information collected thereby concerning Borrower, the
Borrower Subsidiaries, WWPII, WWG and such Controlling Persons and direct
members (but not indirect members that are not Controlling Persons, WWPII or
WWG), available to Lender for review and inspection by Lender from time to time
during normal business hours and upon reasonable prior notice, and Borrower
agrees to deliver copies of the same to Lender from time to time upon request.
Lender will keep the Borrower Anti-Terrorism Policies and the Investor
Anti-Terrorism Policies, and the information collected thereby, confidential
subject to customary exceptions for legal process, auditors, regulators, or as
otherwise reasonably required by Lender to comply with requirements of law.
Borrower consents to the disclosure to U.S. regulators and law, enforcement
authorities by Lender or any of its Affiliates or agents of such information
about Borrower, the Borrower Subsidiaries and the owners of direct interests in
Borrower, WWPII and WWG that Lender reasonably deems necessary or appropriate to
comply with applicable Anti-Terrorism Laws and Anti-Money Laundering Laws.
7.4. Funds Invested in Borrower. Borrower represents and warrants that it
has taken, and that it shall continue to take, reasonable measures appropriate
to the circumstances (and in any event as required by law), with respect to each
holder of a direct interest in Borrower, WWPII and WWG to assure that funds
invested by such holders in Borrower are derived from legal sources ("ANTI-MONEY
LAUNDERING MEASURES"). The Anti-Money Laundering Measures have been and shall be
undertaken in accordance with the Bank Secrecy Act, 31 U.S.C.ss.ss.5311 et seq.
("BSA" and all applicable laws, regulations and government guidance on BSA
compliance and on the prevention and detection of money laundering violations
under 18 U.S.C.ss.ss.1956 and 1957 (collectively with the BSA, "ANTI-MONEY
LAUNDERING LAWS").
7.5. No Violation of Anti-Money Laundering Laws. Borrower represents and
warrants to Lender, to its actual knowledge after making reasonable inquiry (in
accordance with the Anti-Money Laundering Measures), that neither Borrower, nor
any Borrower Subsidiary, nor any holder of a direct interest in Borrower, WWPII
or WWG (a) is under investigation by any Governmental Authority for, or has been
charged with, or convicted of, money laundering under 18 U.S.C.ss.ss.1956 and
1957, or drug trafficking, terrorist-related activities or other money
laundering predicate crimes, or a violation of the BSA, (b) has been assessed
civil penalties under any Anti-Money Laundering Laws, or (c) has had any of its
funds seized or forfeited in an action under any Anti-Money Laundering Laws.
7.6. Borrower Compliance with Anti-Money Laundering Laws. Borrower
represents, warrants and covenants to Lender that it has taken, and agrees that
it shall continue to take, reasonable measures appropriate to the circumstances
(in any event as required by law), to ensure that Borrower and all Borrower
Subsidiaries are and shall be in compliance with all current and future
Anti-Money. Laundering Laws and laws, regulations and government guidance for
the prevention of terrorism, terrorist financing and drug trafficking.
7.7. Notification of Lender: Quarantine Steps. Borrower shall immediately
notify Lender if Borrower obtains actual knowledge that any holder of a direct
interest in Borrower, WWPII or WWG, or any director, manager or officer of any
of such holder, (a) has been listed on any of the Lists, (b) has become a
Designated Person, (c) is under investigation by any Governmental Authority for,
or has been charged with or convicted of, money laundering or drug trafficking,
terrorist-related activities or other money laundering predicate crimes, or any
violation of the BSA, (d) has been assessed civil penalties under any Anti-Money
Laundering Laws, or (e) has had funds seized or forfeited in an action under any
Anti-Money Laundering Laws. In addition, if Borrower obtains actual knowledge
that any holder of an indirect interest in Borrower, WWPII or WWG (i) has been
listed on any of the Lists, (ii) has become a Designated Person, (iii) has been
indicted for, or has been charged with or convicted of, money laundering or drug
trafficking, terrorist-related activities or other money laundering predicate
crimes, or any violation of the BSA, (iv) has been assessed civil penalties
under any Anti-Money Laundering Laws, or (v) has had funds seized or forfeited
in an action under any Anti-Money Laundering Laws, Borrower shall take
reasonable steps ("QUARANTINE STEPS") to assure that funds received from such
indirect interest holder thereafter are not used by Borrower to make payments to
Lender under the Loan Documents; provided, however, that if the facts or
circumstances which caused such indirect interest holder to be classified within
one of the categories described in the foregoing clauses (i) through (v) cease
to exist or to apply to such indirect interest holder, then Borrower may cease
taking Quarantine Steps with respect to such indirect interest holder. As a
matter of clarification and not limitation, any payments by Borrower to Lender
which are made from Gross Receipts of the Properties shall be deemed to be
payments that are not derived from funds received from such indirect interest
holder.
7.8. Additional Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default:
(a) Borrower shall fail to comply with any of the provisions of this
Section 7 or any Person executing an Interest Holder Agreement shall fail to
comply with the provisions of such agreement, and in either case the same shall
remain unremedied for a period of thirty (30) days after Borrower receives
written notice of such failure from Lender; provided, however, if such failure
is of the type WHICH IS curable but cannot be cured within such 30-day period,
then Borrower shall have an additional sixty (60) days to cure such failure if
Borrower, within the initial 30 days, shall have commenced and shall be
diligently pursuing such cure.
(b) Any representation or warranty of Borrower under this Section 7, or any
representation or warranty made to Lender under an Interest Holder Agreement,
shall be false, misleading or incorrect as of the date when made and such
representation or warranty, if the condition that gave raise to the breach
thereof is capable of being cured, shall remain false, misleading or incorrect
for a period ending on the first to occur of thirty (30) days after Borrower
shall receive written notice from Lender regarding such false, misleading or
inaccurate representation or warranty, or thirty (30) days after Borrower shall
become aware that such representation or warranty is false, misleading or
incorrect; provided, however, that if the breach of the representation or
warranty that is capable of being cured is of the type that cannot be cured
within such 30-day period, then Borrower shall have an additional sixty (60)
days to effect such cure so long as Borrower shall have commenced to cure the
condition that gave raise to the breach of representation or warranty within the
initial 30-day period, and Borrower thereafter diligently pursues such cure.
(c) Notwithstanding the foregoing, it shall be an immediate Event of
Default (for which no cure periods shall apply) if Borrower or any Controlling
Person is at any time listed on the SDN List.
7.9. Representations and Warranties True and Correct. Borrower represents
and warrants to Lender that, as of the First Amendment Date, all of the
representations and warranties contained in the Interest Holder Agreements
delivered to Lender prior to the First Amendment Date are true and 'correct.
Borrower further represents and warrants that all evidence of Borrower's,
Gateway Tower Owner's, and each Borrower Party's identity provided to Lender is
genuine, that all related information is accurate and that Borrower has acquired
and shall hold its interest in the Assets for its own account, risk and
beneficial interest, without the obligation or intention to sell, distribute,
assign or transfer all or any portion of such interest to any other Person.
7.10. Blocking the Loan. Borrower acknowledges and agrees that if Borrower
breaches any of its representations, warranties or agreements set forth in this
Section 7, Lender has the right or may be obligated to block the Loan by, among
other things, prohibiting additional Loan advances, segregating the assets
constituting the Loan or any funds deposited with or otherwise controlled by
Lender pursuant to the Loan Documents in accordance with applicable
Anti-Terrorism Laws, declining any payment or any prepayment or consent request,
and/or declaring an Event of Default and immediately accelerating the Loan
(subject, in the case of declaring an Event of Default and accelerating the
Loan, to the notice and cure provisions set forth in Section 7,.8, above).
7.11. No Expansion of Transfer Rights. Nothing contained in this Section 7
is intended, nor shall be construed, to permit any assignment, transfer, sale,
conveyance, encumbrance, pledge or hypothecation of a direct or indirect
interest in Borrower, the Gateway Tower Owner, WWG, WWPII, Wells Avenue
Holdings, WASH Manager or Nomura Borrower which is prohibited by Section 9.4(2)
of the Loan Agreement.
8. Conditions Precedent. Lender's obligation to make the initial advance of
the Additional Advance, and to otherwise modify the terms of the Loan as set
forth herein, is subject to the satisfaction of all of the following conditions
precedent:
8.1. Lender shall have received each of the following in form and substance
satisfactory to Lender (unless otherwise specified, all documents to be
delivered shall be originals):
(a) The payment to Lender in cash of (i) the commitment fee for the
Additional Advance in an amount equal to $65,000.00 (less any portion of
Borrower's good faith deposit applied thereto), and (ii) $13,500, which is the
unpaid portion of the commitment fee for the Loan funds reallocated from the
Working Capital Budgets for the Nomura Properties to the Working Capital Budget
for the Somerset Tech Center (i.e., 0.5% of $2,700,000).
(b) The Amended and Restated Note duly executed by Borrower.
(c) This Agreement duly executed by Borrower; the Consent of Borrower
Parties attached hereto duly executed by the Whitehall Parties, Wellsford, WWPII
and WWG; the Consent of Guarantor attached hereto executed by Gateway Tower
Owner; the Consent of Indemnitors attached hereto executed by all "Indemnitors"
under the Indemnification Agreement; and the Acknowledgment and Reaffirmation
Regarding Asset Management attached hereto duly executed by WWG and the Asset
Manager.
(d) A duly executed and acknowledged Amendment to Deed of Trust and
Assignment of Leases and Rents executed by Borrower for each of the Deeds of
Trust (collectively, the "AMENDMENTS").
(e) A duly executed and acknowledged Deed of Trust encumbering the Somerset
Tech Center. (f) A duly executed and acknowledged Assignment of Leases with
respect to the Somerset Tech Center. (g) A Collateral Assignment of Contracts
for the Somerset Tech Center, duly executed and delivered by Borrower.
(h) UCC-I financing statements for the Somerset Tech Center for filing in
each jurisdiction deemed necessary by Lender.
(i) Opinions of Sullivan & Cromwell, counsel to Borrower, and opinions of
Lender's local counsel in Massachusetts, Maryland and New Jersey; in each case
addressing such matters regarding the Aggregate Loan, the Borrower, each
Borrower. Party, the Gateway Tower Owner, this Agreement, the Amended and
Restated Note, the Amendments and/or the Loan Documents as Lender may reasonably
specify.
(j) A current rent roll for the Somerset Tech Center and each other
Property, together with copies of all Tenant leases relating to the Somerset
Tech Center and each other Property which have not been previously delivered to
Lender.
(k) Estoppel certificates and, where required by Lender, subordination,
nondisturbance and attornment agreements from Tenants under Leases at the
Somerset Tech Center, as shall be satisfactory to Lender.
(l) Governmental certificates, dated the most recent practicable date prior
to the First Amendment Date, with telecopy updates where available, showing that
Borrower and the Gateway Tower Owner are each organized and in good standing in
the jurisdiction of its organization and showing that Borrower is qualified as a
foreign limited liability company in good standing in all states in which the
Borrower Properties are located, and that the Gateway Tower Owner is qualified
as a foreign limited liability company in good standing in the state of
Maryland.
(m) Resolutions of the management committee of the sole member of the sole
member of Borrower, certified by an authorized signatory of such sole member (or
the manager thereof) of such member within a recent date prior to the First
Amendment Date, to be duly adopted and in full force and effect on such date,
authorizing (i) the consummation of the transactions contemplated by this
Agreement and the Amendments, and (ii) specific officers to execute and deliver
this Agreement, the Amendments, the Amended and Restated Note and the other
Ancillary Agreements which Borrower and/or Gateway Tower Owner is executing in
connection herewith.
(n) Certificates of an authorized signatory of the sole member (or the
manager thereof) of the sole member of Borrower, dated within a recent date
prior to the First Amendment Date, as to the incumbency of the authorized
signatories authorized by the resolutions delivered to Lender (as required
herein) to execute and deliver this Agreement, the Amended and Restated Note,
the Amendments and the other Ancillary Agreements and other certificates or
documents to be delivered pursuant hereto or thereto, together with a
certification of the incumbency of such authorized signatory.
(o) Resolutions of the management committee of WWG, certified by an
authorized signatory of WWG (or the manager thereof) within a recent date prior
to the First Amendment Date, to be duly adopted and in full force and effect on
such date, authorizing (i) the consummation of the transactions contemplated by
this Agreement, and (ii) specific authorized signatories to execute and deliver
the Consent of Borrower Parties, the Consent of Indemnitors and the
Acknowledgment and Reaffirmation Regarding Asset Management attached to this
Agreement, the other Loan Documents and Ancillary Agreements to which WWG is a
party, and any other certificate or other document to be delivered by WWG
pursuant hereto or thereto.
(p) Resolutions of the management committee of the sole member of WWPII,
certified by an authorized signatory of such member (or the manager thereof)
within a recent date prior to the First Amendment Date, to be duly adopted and
in full force and effect on such date, authorizing (i) the consummation of each
of the transactions contemplated by this Agreement, and (ii) specific authorized
signatories to execute and deliver the Consent of Borrower Parties and the
Consent of Indemnitors attached to this Agreement, the other Loan Documents and
Ancillary Agreements to which WWPII is a party, and any other certificate or
other document to be delivered by WWPII pursuant hereto or thereto.
(q) Certificates of an authorized signatory of the sole or managing member
(as applicable) of WWG and WWPII (or the manager thereof), in each case dated
within a recent date prior to the First Amendment Date, as to the incumbency of
the authorized signatories of such member (or the manager thereof) authorized by
the company resolutions or consent delivered to Lender (as required herein for
each such party) to execute and deliver the Consent of Borrower Parties, the
Consent of Indemnitors and (as to WWG) the Acknowledgment and Reaffirmation
Regarding Asset Management attached to this Agreement, the other Loan Documents
and Ancillary Agreements to which such entity is a party, and any other
certificate or other document to be delivered by such party pursuant hereto or
thereto, together with a certification of the incumbency of such authorized
signatory.
(r) A board resolution of Wellsford certified by the Secretary or an
Assistant Secretary of Wellsford, in each case within a recent date prior to the
First Amendment Date, to be duly adopted and in force and effect on such date,
authorizing (i) the consummation of the transactions contemplated by this
Agreement, and (ii) specific officers to execute and deliver the Consent of
Borrower Parties and the Consent of Indemnitors attached to this Agreement, the
other Loan Documents and Ancillary Agreements to which Wellsford is a party, and
any other certificate or other document to be delivered by Wellsford pursuant
hereto or thereto.
(s) Certificates of the Secretary, an Assistant Secretary or a Vice
President of Wellsford, dated within a recent date prior to the First Amendment
Date, as to the incumbency of the officers or representatives of Wellsford
authorized by the company consent delivered to Lender (as required herein) to
execute and deliver the Consent of Borrower Parties and the Consent of
Indemnitors attached to this Agreement, the other Loan Documents and Ancillary
Agreements to which Wellsford is a party, and any other certificate or other
document to be delivered by Wellsford pursuant hereto or thereto, together with
a certification of the incumbency of such Secretary or Assistant Secretary, as
the case may be.
(t) A partnership. certificate of each Whitehall Party and a consent of
manager of each Whitehall Party's general partner, certified by the Secretary,
an Assistant Secretary or a Vice President of such general partner, and in each
case within a recent date prior to the First Amendment Date, to be duly adopted
and in force and effect on such date, authorizing (i) the consummation of the
transactions contemplated by this Agreement, and (ii) specific officers to
execute and deliver the Consent of Borrower Parties and the Consent of
Indemnitors attached to this Agreement, the other Loan Documents and Ancillary
Agreements to which such Whitehall Party is a party, and any other'certificate
or other document to be delivered by such Whitehall Party pursuant hereto or
thereto.
(u) Certificates of the Secretary, an Assistant Secretary or Vice President
of the general partner of each Whitehall Party, dated within a recent date prior
to the First Amendment Date, hereof, as to the incumbency of the officers or
representatives of such general partner authorized by the resolutions delivered
to Lender (as required herein) to execute and deliver the Consent or Borrower
Parties and the Consent of Indemnitors attached to this Agreement, any other
Loan Documents and Ancillary Agreements to which such Whitehall Party is =a
party, and any other certificate or other document to be delivered by such
Whitehall Party pursuant hereto or thereto, together with a certification of the
incumbency of such Secretary, Assistant Secretary or Vice President, as the case
may be.
(v) A copy of any amendments (excluding those delivered to Lender at or
before the original Loan closing) to the organizational charter of Borrower,
Gateway Tower Owner, WWG, WWPII, WP Commercial, each Whitehall Party and the
general partner of each Whitehall Party, in each case certified as of a recent
date prior to the First Amendment Date by the Secretary of State of the
jurisdiction of its organization, and a copy of any amendments (excluding those
delivered to Lender at or before the original Loan closing) to the operating
agreement or partnership agreement, as the case may be, of Borrower, Gateway
Tower Owner, WWG, WWPII, WP Commercial, each Whitehall Party, and the general
partner of each Whitehall Party, certified by an authorized officer or manager
of such entity as true and correct as of a recent date.
(w) An environmental engineering report for the Somerset Tech Center, the
content of which is acceptable to Lender in its sole discretion, conducted by an
engineer and in a manner both of which are satisfactory to Lender in its sole
discretion. Such report shall be of an investigation which makes appropriate
inquiry concerning the existence of Hazardous Materials on the Somerset Tech
Center, and the past or present use or release of any Hazardous Materials.
(x) An engineering report for the Somerset Tech Center, acceptable to
Lender covering, among other matters, inspection of heating and cooling systems,
roof and structural details, and showing no failure of compliance with building
plans and specifications (which must be approved by Lender), or with any
applicable local, state or federal laws.
(y) An ALTA-form title insurance policy (or its equivalent) naming Lender
as insured first mortgagee in respect of the Somerset Tech Center, and insuring
the validity and first position lien priority of the Deed of Trust encumbering
the Somerset Tech Center, issued by Commonwealth Land Title Insurance Company,
with coverage brought forward to the date on which the Deed of Trust is
recorded, with such endorsements as may be required by Lender, with no
exceptions or exclusions other than Permitted Encumbrances or as may be approved
by Lender, and in an insured amount not to exceed 120% of the sum of (i) the
initial Loan Basis for the Somerset Tech Center plus (ii) the amount of Loan
funds allocated to the Working Capital Budget for the Somerset Tech Center.
(z) A current "as-built" survey of the Somerset Tech Center, dated or
updated to a date not earlier than thirty (30) days prior to the First Amendment
Date, certified to Lender and Commonwealth Land Title Insurance Company,
prepared by a licensed surveyor reasonably acceptable to Lender and such title
insurer, and conforming to Lender's current standard survey requirements.
(aa) Evidence that the Somerset Tech Center and the operation thereof
comply with all legal requirements, including that all requisite certificates of
occupancy, building permits, and other licenses, certificates, approvals or
consents required of any Governmental Authority have been issued without
variance or condition and that there is no litigation, action, citation,
injunctive proceedings, or like matter pending or threatened with respect to the
validity of such matters. Borrower shall have provided Lender with copies of
such documentation as Lender may require from applicable zoning, building and
municipal agencies evidencing the foregoing.
(bb) All other Ancillary Agreements reasonably required by Lender.
(cc) Evidence that all actions necessary or, in the reasonable opinion of
Lender, desirable to perfect and protect the security interests created by the
existing Deeds of Trust and other Collateral Documents, as amended by this
Agreement and the Amendments, have been or will be taken.
8.2. No change shall have occurred in the financial condition of Borrower,
the Gateway Tower Owner or any Borrower Party or in the Operating Cash Flow of
any of the Borrower Properties, or in the financial condition of any major or
anchor tenant, which would have, in Lender's reasonable judgment, a Material
Adverse Effect.
8.3. No condemnation or adverse zoning or usage change proceeding shall
have occurred or shall have been threatened against any of the Borrower
Properties (including the Somerset Tech Center); none of the Borrower Properties
shall have suffered any significant damage by fire or other casualty which has
not been repaired; no Law, moratorium, injunctive proceeding, restriction,
litigation, action, citation or similar proceeding or matter shall have been
enacted, adopted or threatened by any Governmental Authority, which would have,
in Lender's judgment, a Material Adverse Effect.
8.4. Lender shall have verified that the amount of the Additional Advance
does not exceed eighty percent (80%) of the Property Basis for the Somerset Tech
Center.
8.5. Lender shall have verified that the amount of the Additional Advance
does not exceed seventy-one percent (71 %) of the acquisition and historical
renovation costs for the Somerset Tech Center.
8.6. Lender shall have verified that the Cash On Cash Return is not less
than 10.7%, and Lender shall have verified that the Cash On Cash Return based
solely on the Somerset Tech Center and the amount of the Additional Advance is
not less than 10.5%.
8.7. Lender shall have verified that (a) Borrower's cash equity invested in
the Somerset Tech Center is not less than $2,700,000, and (b) Borrower's cash
equity invested in all Borrower Properties is not less than $38,400,000.
8.8. Borrower shall have delivered to Lender, and Lender shall have
approved, a detailed two-year capital budget for the Somerset Tech Center.
8.9. Borrower shall have (a) established all deposit accounts relating to
the Somerset Tech Center as required by the terms of the Loan Agreement and
delivered to Lender satisfactory evidence thereof, and (b) delivered to Lender a
deposit account agreement for each such account, substantially in the form of
Exhibit "B" to the Loan Agreement, executed by Borrower and the depository at
which such account is held.
8.10. All brokerage fees and commissions payable in connection with the
Additional Advance (if any) have been paid.
8.11. The representations and warranties contained in the Loan Agreement
and in all other Loan Documents are true and correct as of the date hereof.
8.12. No Default or Event of Default has occurred and is continuing.
8.13. The Title Company shall have issued and delivered to Lender, or shall
have irrevocably and unconditionally committed to issue for the. benefit of
Lender, such endorsements to the Title Policies as Lender shall request to
insure the validity and continuing first position lien priority of the Deeds of
Trust, as amended hereby and by the Amendments, including CTLA 110.10
endorsements.
8.14. Borrower shall have reimbursed Lender (either directly tly or through
the application of all or part of the Borrower's good faith deposit) for all
third party costs and expenses incurred by Lender in connection with the
transaction contemplated by this Agreement, including title insurance costs,
recording fees, attorneys' fees and costs, costs of environmental appraisals and
structural reports and travel expenses.
9. Consent to Merger of WXI/Mt. Bethel Road. L.L.C. into Borrower. Lender
acknowledges that, as of the First Amendment Date, Borrower will have acquired
title to Somerset Tech Center as the successor by merger to WXI/Mt. Bethel Road,
L.L.C., a Delaware limited liability company ("WXI/MT. BETHEL"), which is a
wholly-owned subsidiary of WWG, and Lender consents to such merger. Borrower
represents and warrants to Lender that, since its inception, WXI/Mt. Bethel has
not engaged in any business other than the business of owning and operating
Somerset Tech Center, and has not incurred any Indebtedness other than trade
debt incurred in the ordinary course of its ownership and operation of Somerset
Tech Center.
10. Return of Original Note. Lender agrees that, concurrently with the
closing of the transaction contemplated by this Agreement, or reasonably
promptly thereafter, Lender shall return the original Note to Borrower.
11. Non-Impairment. Except as expressly provided herein, nothing in this
Agreement shall alter or affect any provision, condition or covenant contained
in the Loan Agreement or other Loan Documents or affect or impair any rights,
powers or remedies thereunder, and the parties hereto intend that the provisions
of the Loan Agreement and other Loan Documents shall continue in FULL force and
effect except as expressly modified hereby. In the event of any conflict between
this Agreement and the terms of the respective Loan Documents to which it
relates or any documents relating thereto, the terms of this Agreement shall
govern and control. Unless otherwise specified herein, whenever possible, the
provisions of this Agreement shall be deemed supplemental to and not in
derogation of the terms of the respective Loan Documents to which it relates.
12. Miscellaneous. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York applicable to
contracts made and performed in such state, without regard to the principles
thereof regarding conflict of laws, and any applicable laws of the United States
of America. The headings used in this Agreement are for convenience only and
shall be disregarded in interpreting the substantive provisions of this
Agreement., If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, that portion
shall be deemed severed herefrom and the remaining parts shall remain IN FULL
force as though the invalid, illegal or unenforceable provision had never been a
part hereof As used in this Agreement, the term "INCLUDES)" shall mean
"include(s), without limitation," and the term "INCLUDING" shall mean
"including, but not limited to."
13. Integration; Interpretation. The Loan Documents, including this.
Agreement, contain or expressly incorporate by reference the entire agreement of
the parties with respect to the matters contemplated therein, and supersede all
prior negotiations. No reference to this Agreement is necessary in any
instrument or document at any time referring to a Loan Document. Any reference
to a Loan Document (including in any other Loan Document) shall be deemed a
reference to such document as modified hereby.
14. Counterparts. This Agreement may by executed in any number of
counterparts, all of which shall be considered one in the same instrument. The
original, executed signature pages of exact copies of this Agreement may be
attached to one of such copies to form one document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement as of
the day and year first set forth above.
"Borrower"
WELLSFORD/WHITEHALL HOLDINGS, L.L.C., a Delaware limited liability company
By. Wellsford/Whitehall
Properties II, L L C , a
Delaware limited
liability company, its
managing member
By: Wellsford/Whitehall Group, L L C , a Delaware
limited liability company, its sole member
By. WP Commercial, L L C , a Delaware limited
liability company, its manager .
By: /s/ Alan S. Kava
-----------------------------------
Name: Alan S. Kava
Title: Authorized Signatory
Lender:
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
By: /s/ Paul St Arnauld
------------------------------------
Paul St Arnauld, Authorzed Signatory
CONSENT OF BORROWER PARTIES
---------------------------
The undersigned, having read and understood the foregoing First Amendment
to Loan Agreement and Other Loan Documents ("AGREEMENT"), hereby (a) consent to
the Additional Advance and to all of the terms and provisions of the Agreement,
(b) agree that the Agreement does not terminate any of the obligations of the
undersigned to Lender under the Joinder, and (c) reaffirm their obligations
under the Joinder in light of the Agreement. The undersigned have reviewed the
provisions of the Joinder and, with the advice of their own counsel, hereby
reaffirm and restate the waivers, authorizations, agreements and understandings
set forth in the Joinder as though set forth in full herein.
By executing this Consent of Borrower Parties, WWG and WWPII further
specifically consent and agree to the amendment of the Hazardous Substances
Indemnity Agreement set forth in Section 5.2 of the Agreement, pursuant to which
the Somerset Tech Center is included within the term "Premises" as used in the
Hazardous Substances Indemnity Agreement. WWG and WWPII hereby reaffirm and
restate all representations, warranties, covenants and agreements contained in
the Hazardous Substances Indemnity Agreement, as such representations,
warranties, covenants and agreements apply to the Somerset Tech Center.
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP XI, a Delaware
limited partnership
By: WH Advisors, L.L.C. XI, a Delaware
limited liability company, its General
Partner
By:
-----------------------------------
Name:
Title:
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP VIII, a Delaware
limited partnership
By: WH Advisors, L.L.C. XI, a Delaware
limited liability company, its General
Partner
By:
-----------------------------------
Name:
Title:
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V, a Delaware
limited partnership
By: WH Advisors, L.L.C. XI, a Delaware
limited liability company, its General
Partner
By:
-----------------------------------
Name:
Title:
WELLSFORD/WHITEHALL GROUP,
L.L.C., a Delaware limited partnership
By: WP Commercial, L.L.C., a Delaware
limited liability company, its manager
By:
-----------------------------------
Name:
Title:
WELLSFORD REAL PROPERTIES,
a Maryland corporation
By:
-----------------------------------
Name:
Title:
WELLSFORD/WHITEHALL PROPERTIES II, L.L.C. a
Delaware
limited company
By: Wellsford/Whitehall Group, L.L.C., a
Delaware limited liability company,
its sole member
By: WP Commerccial, L.L.C, a
Delaware limited liability
company, its manager
By:
-----------------------------------
Name:
Title:
CONSENT OF GUARANTOR
The undersigned, having read and understood the foregoing First Amendment
to Loan Agreement and Other Loan Documents ("AGREEMENT"), hereby (a) consents to
the Additional Advance and to all of the terms and provisions of the Agreement,
(b) agrees that the Agreement does not terminate any of the obligations of the
undersigned to Lender under the Guaranty dated as of June 25, 2001, executed by
the undersigned in favor of Lender (the "GUARANTY"), (c) reaffirms its
obligations under the Guaranty in light of the Agreement, and (d) agrees that,
subject to the limitations on the undersigned's aggregate total liability under
the Guaranty for the Guaranteed Obligations, the Guaranteed Obligations shall
include the payment of the Aggregate Loan and the payment and performance of all
other present and future indebtedness and obligations of Borrower to Lender
under the Agreement and under the Loan Documents, as amended by the Agreement.
The undersigned agrees that all references in the Guaranty to (i) the Loan
hereafter shall be deemed to be references to the Aggregate Loan, and (ii) the
Note hereafter shall be deemed to be references to the Amended and Restated
Note. The undersigned has reviewed the provisions of the Guaranty and, with the
advice of its own counsel, hereby reaffirms and restates the waivers,
authorizations, agreements and understandings set forth in the Guaranty as
though set forth in full herein.
By executing this Consent of Guarantor, the undersigned further consents
and agrees to the amendment of the Hazardous Substances Indemnity Agreement set
forth in Section 5.2 of the Agreement, pursuant to which the Somerset Tech
Center is included within the term "Premises" as used in the Hazardous
Substances Indemnity Agreement. The undersigned agrees that such amendment does
not terminate any of the obligations of the undersigned to Lender under the
Hazardous Substances Indemnity Agreement, and the undersigned hereby reaffirms
and restates all representations, warranties, indemnities and other agreements
made by the undersigned in the Hazardous Substances Indemnity Agreement, which
shall continue to apply only to the Gateway Tower Premises.
WWG 401 NORTH WASHINGTON LLC, a Delaware limited liability company
By: WellsfordlWhitehall Holdings, L.L.C., a Delaware
limited liability company, its sole member
By: Wellsford/Whitehall Properties 1I, L.L.C., a
Delaware limited liability company, its
managing member
By: Wellsford/Whitehall Group, L.L.C., a
Delaware limited liability company, its
sole member
By: WP Commercial, L.L.C., a
Delaware limited liability
company, its manager
By:
-----------------------------------
Name:
Title:
CONSENT OF INDEMNITORS
The undersigned, having read and understood the foregoing First Amendment
to Loan Agreement and Other Loan Documents ("AGREEMENT"), hereby (a) consent to
the Additional Advance and to all of the terms and provisions of the Agreement,
(b) agree that the Agreement does not terminate any of the obligations of the
undersigned to Lender under the Indemnification Agreement dated as of June 25,
2001, executed by the undersigned in favor of Lender (the "INDEMNITY"), (c)
reaffirm their obligations under the Indemnity in light of the Agreement, and
(d) agree that all references in the Indemnity to the Loan hereafter shall be
deemed to be references to the Aggregate Loan. The undersigned have reviewed the
provisions of the Indemnity and, with the advice of their own counsel, hereby
reaffirm and restate the indemnities, waivers, authorizations, agreements and
understandings set forth in the Indemnity as though set forth in full herein.
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V, a
Delaware limited partnership
By: WH Advisors, L.L.C. V, a Delaware limited
libaility company, its general partner
By:
-----------------------------------
Name:
Title:
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP
VII, a Delaware limited partnership
By: WH Advisors, L.L.C. VII, a Delaware
limited libaility company, its general partner
By:
-----------------------------------
Name:
Title:
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VI,
a Delaware limited partnership
By: WH Advisors, L.L.C. VI, a Delaware limited
libaility company, its general partner
By:
-----------------------------------
Name:
Title:
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP
VIII, a Delaware limited partnership
By: WH Advisors, L.L.C. VIII, a Delaware
limited libaility company, its general partner
By:
-----------------------------------
Name:
Title:
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP XI,
a Delaware limited partnership
By: WH Advisors, L.L.C.XI, a Delaware limited
libaility company, its general partner
By:
-----------------------------------
Name:
Title:
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP
XII, a Delaware limited partnership
By: WH Advisors, L.L.C. XII, a Delaware
limited libaility company, its general partner
By:
-----------------------------------
Name:
Title:
WELLSFORD REAL PROPERTIES, INC., a Maryland
corporation
By:
-----------------------------------
Name:
Title:
ACKNOWLEDGMENT AND REAFFIRMATION
--------------------------------
REGARDING ASSET MANAGEMENT
--------------------------
The undersigned, having read and understood the foregoing
First Amendment to Loan Agreement and Other Loan Documents ("AGREEMENT"), hereby
(i) reaffirms its obligations under the Agreement Regarding Asset Management, as
amended by the Agreement, and (ii) acknowledges that the Somerset Tech Center
constitutes a "Property" under the Agreement Regarding Asset Management, and
that the Somerset Tech Center constitutes a "Property" under the Asset
Management Provisions.
WELLSFORD/WHITEHALL GROUP, L.L.C., a Delaware
limited liability company
By: WP Commercial, L.L.C., a Delaware limited
liability company, its manager
By:
-----------------------------------
Name:
Title:
WP COMMERCIAL, L.L.C., a Delaware limited liability
company
By:
-----------------------------------
Name:
Title:
EXHIBIT "A"
LEGAL DESCRIPTION
That certain real property situated in the Township of Warren, County of
Somerset, State of New Jersey, described as follows:
BEGINNING at a point on the northerly sideline of Mt. Bethel Road (a.k.a.
Somerset County Route 651, variable width right of way), said point being on the
dividing line between Lot 11 and Lot 12.01, Block 80, said point also being
378.48 feet westerly as measured along various courses along said northerly
sideline of Mt. Bethel Road from its intersection with the westerly terminus of
a curve connecting Mt. Bethel Road with the westerly sideline of Technology
Drive North (variable width right of way), and from said beginning point running
thence; The following three (3) courses along the northerly sideline of Mt.
Bethel Road:
1. North 56 degrees 24 minutes 00 seconds West, a distance of 100.41 feet to a
point; thence
2. North 51 degrees 46 minutes 00 seconds West, a distance of 224.86 feet to
point; thence
3. North 65 degrees 13 minutes 30 seconds 00 seconds West, a distance of
138.95 feet to a point; thence
4. Along the dividing line between Lot 11 and Lot 10, Block 80, North 04
degrees 51 minutes 16 seconds East, a distance of 278.00 feet to a point;
thence
5. Continuing along the dividing line between Lot 11 and Lot 10, Block 80,
North 86 degrees 09 minutes 44 seconds West, a distance of 100.02 feet to a
point; thence
6. Along the dividing line between Lot 11 and Lot 9, Block 80, North 04
degrees 51 minutes 16 seconds East, a distance of 300.05 feet to a point;
thence the following two (2) courses along the dividing line between Lot 11
and Lot 2, Block 80:
7. South 86 degrees 09 minutes 44 seconds East, a distance of 100.02 feet to a
point; thence
8. North 02 degrees 56 minutes 30 seconds East, a distance of 613.93 feet to
an iron pipe found; thence
9. Along the common dividing line between Lot 11 & Lot 2, Block 80, and Lot
49, Block 82, North 01 degrees 06 minutes 30 seconds West, a distance of
303.25 feet to a point; thence
10. Along the common dividing line between Lot 22, Block 80 and Lots 49, 48, 47
& 46, Block 82, South 88 degrees 10 minutes 31 seconds East, a distance of
441.75 feet to a point; thence
11. Along the common dividing line between Lot 11, Lot 12.01 and Lot 12.02,
Block 80 and Lot 46, Block 82, South 04 degrees 17 minutes 00 seconds West,
a distance of 1736.02 feet to the northerly side of Mt. Bethel Rood and the
point and place of Beginning.
FOR INFORMATIONAL PURPOSES ONLY:
"In compliance with Chapter 157, Laws of 1977, premises herein is Lot 11 & 11.01
in Block 80 on the Tax Map of the Township of Warren, County of Somerset, State
of New Jersey."
EXHIBIT "B"
FORM OF INTEREST HOLDER AGREEMENT
---------------------------------
SCHEDULE 1.1(A)
---------------
PROPERTY INFORMATION
--------------------
PROPERTY ADDRESS CITY STATE UNITS/NRSF/ PROPERTY TYPE
-------- ------- ---- ----- ----------- -------------
ASSETS
------
Cutler Lake Corp Center 117 Kendrick Street Needham MA 211,556 office
60 Turner Street 60 Turner Street Waltham MA 15,876 office
24 Federal/3 P.O. Square 24 Federal St. and 79 Milk Street Boston MS 74,353 office
65,007
Gateway Tower 401 N. Washington Street Rockville MD 248,463 office
Somerset Tech Center 150 Mt. Bethel Warren NJ 129,227 office
300 Atrium 300 Atrium Drive Franklin NJ 147,474 office
400 Atrium 400 Atrium Drive Franklin NJ 354,669 office
500 Atrium 500 Atrium Drive Franklin NJ 169,752 office
700 Atrium 700 Atrium Drive Franklin NJ 181,069 office
Mountain Heights I & II 420-430 Mountain Avenue Berkley NJ 182,588 office
Heights 123,082
105 Challenger Road 105 Challenger Road Ridgefield NJ 153,550 office
Park
Greenbrook Corporate Center 100 Passaic Avenue Fairfield NJ 201,350 office
Campus Drive 379-399 Campus Drive Franklin NJ 199,110 office
180/188 Mount Airy Road 180/188 Mount Airy Road Basking Ridge NJ 103,668 office
Garden State Convention 50 Atrium Drive Franklin NJ 82,300 office
Center
Wells Reasearch Center* 75, 85, 95 Wells Avenue Newton MA 241,761 office
7/57 Wells Avenue* 7/57 Wells Avenue* Newton MA 89,215 office
Dedham Place* 9-11 Allied Drive Dedham MA 47,662 office
128 Tech Center* 128 Technology Drive Waltham MA 217,501 office
201 University Avenue* 201 University Avenue Westwood MA 82,000 office
* Nomura Property
SCHEDULE 1.1(B)
BASIS ALLOCATIONS
-----------------
PROPERTY PROPERTY BASIS LOAN BASIS
-------- -------------- ----------
Cutler Lake Corp. Center $30,072,421 $22,051,307
60 Turner Street $ 840,113 $ 605,361
24 Federal/3 P.O. Square $33,877,463 $29,385,454
Gateway Tower $33,577,228 $28,312,359
Somerset Tech Center $ 9,402,976 $ 6,100,000
300 Atrium $14,754,318 $13,489,484
400 Atrium $27,759 988 $25,065,149
500 Atrium $15,943,480 $14,902,659
700 Atrium $18,587,001 $15,926,886
Mountain Heights I & II $49,568,274 $41,223,409
105 Challenger Road $16,385,111 $17,554,480
Greenbrook Corporate Center $23,236,806 $20,375,843
Campus Drive $15,118,598 $13,143,421
180/188 Mount Airy Road $13,061,316 $11,908,763
Garden State Convention Center $ 4,849,471 $ 4,115,858
Wells Research Center $41,875,000 $ - 0 -
7/57 Wells Avenue $13,917,000 $ - 0 -
Dedham Place $14,504,000 $ - 0 -
333 Elm Street $ 6,001,000 $ - 0 -
128 Tech Center $33,249,000 $ - 0 -
201 University Avenue $ 9,339,000 $ - 0 -
TOTAL: $425,919,663 $264,160,434
============ ============
SCHEDULE 4.2
ENVIRONMENTAL REPORTS
PROPERTY REPORT TITLE CONSULTANT DATE
-------- ------------ ---------- ----
Cutler Lake Corp Center Release Notification and Downgradient Property ENSR 05/04/01
Status Submittal
60 Turner Street Phase I Environmental Site Assessment & ENSR 02/98
Subsurface Investigation
Gateway Tower Phase I Environmental Site Assessment I'VE Environmental 11/23/94
Phase I & II Environmental Site Assessment ENSR 10/99
Comprehensive Asbestos Survey ENSR 10/99 .
Asbestos Abatement Final Compliance Report ENSR 01/00
Somerset Tech Center Phase I Environmental Site Assessment Vertex Engineering Services, 05/02/01
Inc.
300 Atrium Drive Review of Environmental Assessments Report PMK Group 08/01/97
400 Atrium Drive Review of Environmental Assessments Report PMK Group 08/01/97
Final UST Investigation ATC Associates, Inc. 05/15/01
500 Atrium Drive Review of Environmental Assessments Report PMK Group 08/01/97
700 Atrium Drive Review of Environmental Assessments Report PMK Group 08/01/97
Greenbrook Corp Center Environmental Site Assessment First Environmental 04/97
Site Assessment PMK Group 02/18/98
180/188 Mount Airy Rd. Environmental Assessment Report PMK Group. 06/02/98
Mountain Heights I & H Phase I Environmental Report Kaselaan & IYAngelo Associates 03%30/94
Report of Preliminary Asbestos Survey PMK Group 11/03/97
Environmental Site Assessment PMK Group 10/15/99
Letter Environmental Health 10/19/99
Investigations, Inc.
Wells Research Center Phase I Environmental Report ENSR 03/98
Due Diligence Report Environmental Waste 03/98
Management
Dedham Place Phase I Environmental Report ENSR 03/98
Underground Storage Tank Report ENSR 09/08/99
333 Elm Street Phase I Environmental Site Assessment ENSR 02/98
128 Technology Center Phase I Environmental Report EMG 11/25/96
Limited Subsurface Investigation Rizw Associates 01/30/97
201 University Avenue Phase I Environmental Report ENSR 02/98
Method 3 Risk Assessment Report ENSR 03/99
SCHEDULE 5.1(A1
TENANT DELINQUENCIES
--------------------
ASSET NAME COMMENT
[SEE ATTACHED TENANT DELINQUENCY REPORTS]
SCHEDULE 5.1(B)
NOTICES OF TERMINATION OR DEFAULT
---------------------------------
ASSET NAME COMMENT
---------- -------
24 Federal/3 P.O. Square 1. Andover Brokerage, aka JP Capital - termination
(24 Federal)
2. Walter S. Burrage - default (3 Post Office Square)
3. Destineer/Skytel -- default (3 Post Office Square)
Wells Research Center 1. HQ Business Center (default and termination)
7/57 Wells Avenue 1. Custom Communications (default)
SCHEDULE 5.1(C)
PURCHASE OPTIONS
----------------
Property Name
- -------------
MOUNTAIN HEIGHTS I & II
Comment
- -------
COMPAQ COMPUTER CORP. (TENANT) HAS RIGHT OF FIRST OFFER TO PURCHASE BUILDING
(420 MOUNTAIN AVENUE) IF OFFERED FOR SALE OTHER THAN AS PART OF A MULTI-ASSET
SALE (2 OR MORE BUILDINGS).
SCHEDULE 5.1(D)
LEASE TERMINATION RIGHTS
PROPERTY NAME TENANT COMMENT
------------- ------ -------
Somerset Tech Center GMAC Home Services One-time right to terminate at the end of the fifth lease
year, with at least 12 months prior notice and a fee
equal to 6 months "fully escalated" rent
300 Atrium Drive EMS America Termination option effective 4/04; penalty 3 months rent
+ umommortized TI
Mountain Heights 1& II Santa Cruz Termination option effective 9/04; penalty $529,000
(430 Mountain Ave)
Compaq One-time right at the end of the seventh lease year
(420 Mountain Axe) (8/07), with 12 months prior notice and termination fee
of $3,630,919 ($29.50 x 123,082 sf)
One-time right to terminate upon 6 months prior notice,
Campus Drive Royal Consumer given within 180 days after Rent
Information Products Commencement Date; exercisable if Tenant or all of
Tenant's assets have been sold to a third party in an
arms-length transaction
180/188 Mount Airy Research International. Termination option effective 12/01 - 12/03 with 6 months
penalty only if Tenant wants 15,000 sf in market and
Landlord cannot deliver
Dedham Place Kramer & Flgman Termination right after the 5th year (3/04), with 6 months
prior notice and 2 months rent and operating expense penalty
Paging Network Right to terminate anytime
CellcoFartnership d/b/a Tennination option at sole discretion if unable to use
Verizon Wireless property for its intended purpose by written notice via
certified mail
Washington Mutual One-time right to terminate as to all or a portion of
premises at the end of the third lease year, with at least 7
months prior notice and a fee equal to 40% of abated base
rent and 40% of landlord's unamortized leasing costs
7/57 Wells Avenue EMC Either party may terminate at the end of any monthly
extension with no less than 15 days prior notice
GEO Centers May terminate after 12/1/95 with 6 months notice.
Jungbunziauer May terminate with 120 days prior written notice and rent
penalty
Charles Murray Right to terminate upon death or disability
Wells Research Center Provident Mutual Right to terminate after 5th lease year (6/04), with no
less than 9 months notice
Sodexho Marriott May terminate with/without cause with 60 days written
notice
60 Turner Street Brandeis University May terminate in entirety or partially (2,500 sf minimum)
with 6 months written notice after 7/1997
24 Federal/3 P.O. Square WP Commercial Floating termination option upon 9 months written notice
(3 P.O. Square) with a partial termination right not to exceed 50% of
Premises as long as the space is "feasible". Tenant to
pay all separation costs.
Gateway Tower WP Commercial Floating termination option upon 9 months written notice
with a partial termination right not to exceed 50% of
Premises as long as the space is "feasible". Tenant to pay
all separation costs.
SCHLDULE 5.1(E)
LEASING COMMISSIONS OWING
ASSET NAME COMMENT
---------- -------
Greenbrook Tenant: Information Resources; $136,375 commission owed
Campus Drive Tenant: Royal Consumer Information Products; $231,908 commission owed
Gateway Tower Tenant: GSA; $70,000 commission owed Tenant: various retail tenants; $33,776
commission owed Tenant: Emmes; $76,697 commission owed
Tenant: Montgomery County; $106,972 commission owed
SCHEDULE 5.L(F)
PREPAID RENTS
ASSET NAME COMMENT
[SEE ATTACHMENTS TO SCHEDULE 5.1(A)]
SCHEDULE 6.4
CONDEMNATION PROCEEDINGS
------------------------
None.
SCHEDULE 6.5
CASULATIES AND FLOOD ZONE PROPERTIES
------------------------------------
None.
SCHEDULE 6.6
MATERIAL AGREEMENTS
-------------------
1. Environmental Services Procurement and Coordination Agreement dated as of
January 1, 2001 between WWG and BTS Solutions LLC.
SCHEDULE 6.7
PROPERTY COMPLIANCE
-------------------
None.
SCHEDULE 6.10
PERMITS
-------
None.
SCHEDULE 6.17
LITIGATION
----------
None.
SCHEDULE 6.26
AFFILIATE INDEBTEDNESS
Wellsford/Whitehall Properties II, L.L.C. ("WWPII") is liable under (i)
that certain Guaranty and Indemnity Agreement, dated as of July 16, 1999, by and
between WWPII and IDS Life Insurance Company ("IDS"), (ii) that certain
Hazardous Materials Indemnity Agreement, dated as of July_, 1999, by and between
WWPII and IDS and (iii) that certain Guaranty, dated as of July 16, 1999, by and
between WWPII and Leonard Grebow, Steven J. Grebow, Marc G. Grebow, Ronald S.
Deutsch and Governor Warfield LLC, and (iii) that certain Contribution
Agreement, dated as of June 27, 2001, by and among WWPH, WWG, WP Commercial,
Wellsford, the Whitehall Parties, Whitehall Street Real Estate Limited
Partnership VI, a Delaware limited partnership, Whitehall Street Real Estate
Limited Partnership VIII, a Delaware limited partnership and Whitehall Street
Real Estate Limited Partnership XII, a Delaware limited partnership.
SCHEDULE 6.27
-------------
CASH EQUITY INVESTMENT
----------------------
Cost Basis:
- -----------
Gateway Tower $ 35,740,537
24 Federal/3 P.O. Square 35,915,583
400 Atrium 36,204,695
Mountain Heights I&ls 48,168,466
Cutler Lake Corp. Center 35,800,640
Greenbrook Corp. Center 25,741,614
105 Challenger Rd. 21,275,542
700 Atrium 18,746,791
500 Atrium 21,107,770
300 Atrium 19,550,744
Campus Drive 23,466,899
180/188 Mt. Airy Road 16,364,462
Garden St. Convention Center 6,134,396
60 Turner St. 1,153,246
Somerset Technology Center 9,257,262
------------
Subtotal $354,628,647
Less:
GECC Loan ($264,160,434)
Net Cash Equity $ 90,468,213
SUPPLEMENTAL SCHEDULE 8.19
--------------------------
PROPERTY-SPECIFIC COVENANTS
---------------------------
1. POST CLOSING STRUCTURAL REPAIRS. Within six (6) months after the date of
the initial Advance for the Somerset Tech Center, Borrower shall have completed,
Lien-free and in accordance with applicable Laws, the repairs described in the
tableset forth below for the Somerset Tech Center (as such work is more
particularly described in the engineering report for such Property prepared by
Lender's consultant(s) in connection with theinitial Advance for such Property):
COMPONENT OR SYSTEM ITEM DESCRIPTION QTY. UNIT UNIT TOTAL
COST COST
Wall Surfaces Repair water-damaged drywall 200 SF $5 $1,000
in building 2
TOTAL $1,000
2. POST CLOSING REMEDIAL ACTION. Borrower shall complete the Remedial
Action described in the table set forth below for the designated Properties,
which Remedial Action shall be completed Lien-free, in accordance with all
applicable Environmental Laws, and within the applicable time period (if any)
set forth below.
PROPERTY REMEDIAL ACTION COMPLETION DATE
-------- --------------- ---------------
Somerset Tech Center Borrower acknowledges that asbestos-containing materials and
leas based paint may be present at the Somerset Tech Center.
Within 45 days after the First Amendment Date, Borrower
shall establish its standard operations and maintenance
program at Somerset Tech Center for the removal,
encapsulation of, or other action for handling
asbestos-containing materials and leas-based paint at
Somerset Tech Center, and thereafter Borrower shall
60 Turner Street Install air venting system to ensure that radon concentration in 12/31/02
lowest building level (i.e., classrooms and theater) remains
consistently below 4 pCi/l (picocuries per liter).
Borrower to provide Lender with reasonably 12/31/02
satisfactory evidence that the
out-of-service generator and associated
above-ground propane storage tank have been
removed from the Property and disposed of.
Cutler Lake Corp. Center Borrower to provide Lender with 12/31/02
reasonably satisfactory evidence that
it has made commercially reasonable
efforts to obtain an indemnity from Coca Cola
Corporation with respect to contamination
originating from an groundwater contamination
originating from an upgradient property owned
and/or occupied by Coca Cola Corporation.
400 Atrium Borrower shall cause its Lender-approved consultant to complete 12/31/02
a Phase II environmental study of the portion of the Property in
the vicinity of the active 3,500-gallon underground storage tank
currently located at the Property, which Phase II study shall be
sufficient in scope to identify the extent of any subsurface
contamination associated with such underground storage tank.
Borrower shall cause such consultant to remediate such
contamination to applicable legal standards, and Borrower shall
obtain a "closure" or "no further action" letter from the lead
Governmental Authority having jurisdiction over the Remedial
Action and the Property.
180/188 Mount Airy Rd. Borrower shall cause its Lender-approved consultant to conduct 12/31/02
additional investigation of the area of the Property in the vicinity
of the former location of three underground storage tanks. The
scope of such investigation shall be reasonably satisfactory to
Lender. Borrower shall cause such consultant to remediate any
contamination identified to applicable legal standards, and
Borrower shall obtain a "closure" or "no further action" letter
from the lead Governmental Authority having jurisdiction over
the Remedial Action and the Property.