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SECOND MORTGAGE MODIFICATION AGREEMENT

Mortgage Agreement

SECOND MORTGAGE MODIFICATION AGREEMENT | Document Parties: ACADIA REALTY TRUST | Emmet, Marvin  Martin, LLP | P/A LIBERTY LLC | PNC BANK, NATIONAL ASSOCIATION You are currently viewing:
This Mortgage Agreement involves

ACADIA REALTY TRUST | Emmet, Marvin Martin, LLP | P/A LIBERTY LLC | PNC BANK, NATIONAL ASSOCIATION

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Title: SECOND MORTGAGE MODIFICATION AGREEMENT
Governing Law: New Jersey     Date: 11/8/2010
Industry: Real Estate Operations     Sector: Services

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SECOND MORTGAGE MODIFICATION AGREEMENT

 

 

BY AND BETWEEN

 

ACADIA – P/A LIBERTY LLC, a Delaware limited liability company ,

as Mortgagor

 

and

 

PNC BANK, NATIONAL ASSOCIATION,

as Mortgagee

 

 


 

 

Date: September 17, 2010 (effective as of September 17, 2010)

 

 

 

 

RECORD AND RETURN TO:

 

 

 

Emmet, Marvin & Martin, LLP

 

177 Madison Avenue

 

Morristown, NJ 07960

 

Attn: Neil V. Williams, Esq.

 

 

 


 

 

SECOND MORTGAGE MODIFICATION AGREEMENT

 

made as of the 17th day of September, 2010, effective as of September 17, 2010

(this “Modification Agreement”)

 

BY AND BETWEEN

 

PNC BANK, NATIONAL ASSOCIATION, a national banking association organized and existing under and by virtue of the laws of the United States of America, having an office at Two Tower Center Boulevard, 18 th Floor, East Brunswick, New Jersey 08816 (the “Mortgagee”),

 

 

AND

 

ACADIA – P/A LIBERTY LLC, a Delaware limited liability company, with an address at c/o Acadia Realty Trust, 1311 Mamaroneck Avenue, Suite 260, White Plains, New York 10605 (the “Mortgagor”).

 

W I T N E S S E T H:

 

WHEREAS , on May 18, 2006, the Mortgagor, as maker, delivered to the Mortgagee, as payee, a building loan note in the aggregate principal amount of TWELVE MILLION FOURTY NINE THOUSAND SIX HUNDRED THIRTY THREE AND 00/100 ($12,049,633.00) DOLLARS (the “Original Note”) in connection with a building loan made to the Mortgagor by the Mortgagee (hereinafter said loan as modified shall be referred to as the “Loan”); and

 

WHEREAS , on May 18, 2006, the Mortgagor and the Mortgagee entered into a certain Building Loan Agreement dated May 18, 2006, providing for the advances of the Loan to the Mortgagor to construct the “Improvements” as such term was defined therein; hereinafter referred to as the “Loan Agreement”); and

 

WHEREAS, on May 18, 2006, the Mortgagor, as mortgagor, delivered to the Mortgagee, as mortgagee, a certain Mortgage securing the Mortgagor’s obligations under the Original Note (the “Mortgage”), which Mortgage encumbers certain real property premises located in the City of New York, Borough and County of Queens and State of New York, as more fully described in Schedule A attached hereto and made a part hereof (the “Mortgaged Property”), which Mortgage was recorded on June 2, 2006 in the City Register of the City of New York’s office (“Register’s Office”) as CRFN 200600307479 et seq .; and

 

WHEREAS, on May 18, 2006, the Mortgagor, as mortgagor, delivered to the Mortgagee, as mortgagee, a certain Assignment of Leases and Rents securing the Mortgagor’s obligations under the Original Note (the “Assignment of Leases”), which Assignment of Leases encumbers the Mortgaged Property, which Assignment of Leases was recorded on June 2, 2006 in the Register's Office as CRFN 200600307480 et seq .; and

 

WHEREAS , pursuant to that certain Amended and Restated Mortgage Note dated July 22, 2009 (effective as of July 18, 2009) from Mortgagor to Mortgagee in the reduced principal amount of $10,450,000.00 (the “First Restated Note”), the parties have amended and restated the indebtedness evidenced by the Original Note and secured by the Mortgage, as modified as set forth below; and

 

 

1


 

 

WHEREAS, on July 22, 2009, the Mortgagor, as mortgagor, delivered to the Mortgagee, as mortgagee, a certain Mortgage Modification Agreement dated July 22, 2009 (effective as of July 18, 2009) securing the Mortgagor’s obligations under the First Restated Note (the “First Modification Agreement”), which First Modification Agreement encumbered the Mortgaged Property and was recorded on August 14, 2009 in the Register's Office as CRFN 2009000255450 et seq ., which First Modification Agreement was corrected by a correction First Modification Agreement encumbered the Mortgaged Property to be recorded in the Register's Office just prior to this Modification agreement; and

 

WHEREAS , pursuant to that certain Second Amended and Restated Mortgage Note dated the date hereof from Mortgagor to Mortgagee in the reduced principal amount of $10,000,000.00 (the “Restated Note”), the parties have amended and restated the indebtedness evidenced by the First Restated Note and secured by the Mortgage, as previously modified and as modified and restated hereby; and

 

WHEREAS, the Mortgagee, the owner and holder of the Original Note, the First Restated Note, the Restated Note and the Mortgage, and the Mortgagor, the owner in fee simple of the Mortgaged Property, have mutually agreed to modify the terms of the Mortgage and the other Loan Documents in the manner hereinafter set forth; and

 

WHEREAS , hereinafter the Original Note, the Restated Note, the Mortgage, the Assignment of Leases, the Loan Agreement, the First Modification Agreement, this Modification Agreement, and all other instruments, certificates, affidavits, and documents executed in connection with the Loan shall be referred to as the “Loan Documents”.

 

NOW, THEREFORE , in pursuance of said agreement and in consideration of the sum of ONE DOLLAR and other valuable consideration each to the other in hand paid, receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree as follows:

 

1.   PRINCIPAL AMOUNT OWING.

 

Upon the receipt by the Mortgagee of a principal reduction payment of $450,000.00, the aggregate principal sum of TEN MILLION AND 00/100 ($10,000,000.00) DOLLARS is now due and owing under the Restated Note, all without any offset, defense or counterclaim whatsoever.

 

2.   REPRESENTATIONS.

 

The Mortgagor represents, warrants and agrees with the Mortgagee as follows:

 

(a)   The Mortgage is in full force and effect and has not been modified.

 

 

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(b)   The Mortgage, this Agreement, and all documents executed and delivered in connection with this Agreement including, without limitation, the Restated Note, have been duly authorized, executed and delivered by the Mortgagor and constitute legal, valid and binding obligations of the Mortgagor, enforceable against the Mortgagor in accordance with their respective terms without offset, defense or counterclaim.

 

(c)   The Mortgage is a valid first mortgage lien in favor of the Mortgagee on the Mortgaged Property, securing the obligations under the Restated Note.

 

(d)   The Mortgagor is the sole owner of the ground leasehold interest in the Mortgaged Property, and no mortgage (other than the Mortgage), ground leasehold interest, judgment or other lien encumbers the Mortgaged Property.

 

(e)   All real estate taxes and municipality charges in respect of the Mortgaged Property have been paid as of the date on which same are due.

 

(f)   No material adverse change in the financial condition of the Mortgagor has occurred since the date of the most recent financial statement of the Mortgagor delivered to the Mortgagee.

 

(g)   There is no action, suit or proceeding pending or threatened against or affecting the Mortgagor or the Mortgaged Property.

 

(h)   The Mortgaged Property has not been damaged or destroyed by fire or other casualty, and no condemnation or eminent domain proceedings have been commenced with respect to the Mortgaged Property and, to the best of the Mortgagor’s knowledge, no such condemnation or eminent domain proceeding is threatened.

 

(i)   To the best of the Mortgagor’s knowledge, the Mortgaged Property is being used and operated in compliance with all applicable laws.

 

3.   MODIFICATION OF MORTGAGE AND ASSIGNMENT OF LEASES.

 

The Mortgage and Assignment of Leases shall secure all indebtedness and obligations of the Mortgagor evidenced by and advances made under the Restated Note, including, without limitation, all Additional Interest payable under the Restated Note (as such term is defined therein).

 

4.   FINANCIAL REPORTING.

 

The Mortgagor covenant and agrees to deliver to the Mortgagee (or cause to be delivered to the Mortgagee) the following:

 

(a)   Within one hundred twenty (120) days after the end of each fiscal year of Mortgagor during the term of the Loan, with financial statements of Mortgagor in form reasonably satisfactory to the Mortgagee.  Such financial statements shall be prepared on a GAAP basis excluding the effect of straight-line rent and FAS 141R adjustments, and shall include balance sheets and income statements as the Mortgagee may reasonably require.  Such financial statements shall be certified by the Mortgagor’s managing member as being true and accurate in all material respects and consistent with prior practices by a satisfactory officer of Mortgagor.

 

 

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(b)   Within one hundred eighty (180) days after the end of each fiscal year during the term of the Loan, audited financial statements of Acadia Strategic Opportunity Fund II, LLC (the “Guarantor”) in form satisfactory to the Mortgagee.  Such financial statements shall be certified as being true and accurate in all material respects and consistent with prior practices by an officer of the Guarantor.

 

(c)   Within one hundred twenty (120) days of calendar year end, annual budgets and forecasts for the Project;

 

(d)   Within one hundred twenty (120) days of fiscal year end, annual financial covenant certificates of the Guarantor regarding the Guarantor’s financial covenants set forth in the Guaranty, together with calculations.

 

(e)   Within sixty (60) days after each calendar quarter end, quarterly statements of net operating income prepared on the same basis as the annual financial statements of the Mortgagor (including rent rolls) of the Project.

 

(f)   Annual income tax return of the Mortgagor within thirty (30) days of filing.

 

(g)   In addition to, and not by way of limitation of, the reporting requirements set forth above, the Mortgagor shall provide and cause the Guarantor to provide the Mortgagee with such other information as reasonably requested by the Mortgagee from time to time for purposes of evaluating the financial condition, liquidity and cash flow of the Project, the Mortgagor, the Guarantor and any related entities.

 

5.   REFERENCES.

 

Whenever in the Mortgage or other Loan Documents reference is made to the “Note” or “Building Loan Note” the same shall mean the Restated Note as described herein and as may hereafter be modified or amended. Unless otherwise specified herein (a) words importing any gender include the other gender and (b) the words “include” or “including” or words of similar import, shall be deemed to be followed by the words “but not limited to” or “without limitation.” The terms “Owner” and “Mortgagor” as used in the Mortgage, in the Restated Note or this Agreement, shall be interchangeable and shall refer to the “Mortgagor”, as defined in this Agreement.

 

 

4


 

 

6.   MODIFICATIONS.

 

The terms hereof may not be waived, changed, modified, terminated or discharged orally, but only by an agreement in writing signed by the party against whom enforcement of such waiver, change, modification, termination and discharge is sought.

 

7.   UNMODIFIED TERMS.

 

Except as herein expressly modified and amended herein, all of the terms, covenants and conditions of the Mortgage and other Loan Documents shall remain in full force and effect.

 

8.   CONFLICTS.

 

To the extent that the terms, covenants and conditions of the Restated Note, Mortgage, and/or other Loan Documents shall conflict with those set forth herein, the terms, covenants and conditions of the Restated Note, Mortgage, and other Loan Documents hereby are and shall be superseded and replaced by the terms, covenants and conditions set forth herein, and the Mortgagor agrees to comply with and be subject to all of the terms, covenants and conditions of the Restated Note, Mortgage, and other Loan Documents as modified hereby.

 

9.   SUCCESSORS AND ASSIGNS.

 

This Modification Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

 

10.   FEES.

 

(a)   The Mortgagor shall be responsible for and shall pay to the Mortgagee, upon demand, the Mortgagee’s loan modification fee referenced in the Restated Note and all of the Mortgagee’s reasonable attorney’s fees, plus out of pocket disbursements) and title insurance company fees and charges, if any, in connection with the entering into of this Modification Agreement and the transactions contemplated by this Modification Agreement, and such costs and expenses incurred to and including the date hereof shall be paid simultaneously with the execution and delivery of this Modification Agreement.

 

(b)   In the event of the bringing of any action or suit by the Mortgagee against the Mortgagor by reason of any breach of any of the covenants, agreements or provisions on the part of the Mortgagor arising out of this Modification Agreement, the Mortgage, or the Restated Note, then in that event the Mortgagee shall be entitled to have and recover from the other party all reasonable and necessary out-of-pocket costs and expenses of the action or suit, including actual attorneys’ fees, accounting and engineering fees, and any other professional fees and expenses resulting therefrom.

 

(c)   All sums which are to be paid by the Mortgagor to the Mortgagee pursuant to this Section 10 which are not paid when due shall be deemed additional principal under the Mortgage, shall bear interest at the Default Rate set forth in the Restated Note until paid in full and the payment thereof shall be secured by the lien of the Mortgage.

 

 

5


 

 

11.   NO NOVATION.

 

It is the intention of the parties hereto that this Modification Agreement is an extension of the existing obligations of the Mortgagor under the Restated Land Note and Restated Construction Note, and shall not constitute a novation and shall in no way adversely affect or impair the lien priority of the Mortgage. In the event this Modification Agreement, or any portion hereof, or any of the instruments executed in connection herewith shall be construed or shall operate to affect the lien priority of the Mortgage, then to the extent such instrument creates a charge upon the Mortgaged Property, in excess of that contemplated and permitted thereby, and to the extent third parties acquiring an interest in the Mortgaged Property between the time of recording of the Mortgage and the recording of this Modification Agreement are prejudiced hereby, if any, this Modification Agreement shall be void and of no force and effect as to such third parties; provided, however, that, notwithstanding the foregoing, the parties hereto, as among themselves, shall be bound by all terms and conditions hereof until all indebtedness evidenced by the Restated Note shall have been paid.

 

12.   NO DURESS.

 

The Mortgagor hereby states, acknowledges, and affirms that it has entered into this Modification Agreement freely and without duress, having had the opportunity to seek and receive the advice of counsel in this matter.

 

13.   GOVERNING LAW.

 

This Modification Agreement shall be governed by and construed in accordance with the internal laws of the State of New Jersey without reference to its rules governing conflicts of laws.

 

14.   COUNTERPARTS.

 

This Modification Agreement may be executed in counterparts by one or more parties to this Modification Agreement and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

 

15.   WAIVER OF JURY TRIAL.

 

MORTGAGOR AND MORTGAGEE MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MODIFICATION AGREEMENT OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR MORTGAGEE TO ACCEPT THIS MODIFICATION AGREEMENT AND MODIFY THE LOAN.

 

 

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16.   CORRECTIONS.

 

The Mortgagor will, at the request of the Mortgagee and at the cost and expense of the Mortgagor (A) promptly correct any defect, error or omission which may be discovered in the contents of this Agreement or in any of the Loan Documents, or in the execution, acknowledgment or recordation thereof, and (B) promptly do, execute, acknowledge and deliver any and all such further acts and instruments as the Mortgagee reasonably require from time to time in order to effectuate the purposes and intent of this Modification Agreement.

 

17.   LIMITATION ON LIABILITY.

 

NO CLAIM MAY BE MADE BY THE MORTGAGOR, ANY GUARANTOR OF THE LAND LOAN AND/OR THE CONSTRUCTION LOAN, OR ANY OTHER PERSON AGAINST THE MORTGAGEE OR THE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF THE MORTGAGEE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR, TO THE FULLEST EXTENT PERMITTED BY LAW, FOR ANY PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM OR CAUSE OF ACTION (WHETHER BASED ON CONTRACT, TORT, STATUTORY LIABILITY, OR ANY OTHER GROUND) BASED ON, ARISING OUT OF OR RELATED TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND THE MORTGAGOR (FOR ITSELF AND ON BEHALF OF EACH GUARANTOR OF THE LOAN AND EACH OTHER PERSON) HEREBY WAIVES, RELEASES AND AGREES NEVER TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM NOW EXISTS OR HEREAFTER ARISES AND WHETHER OR NOT IT IS NOW KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.

 

18.   LOST OR MISPLACED DOCUMENTS.

 

Upon receipt of an affidavit of an officer of the Mortgagee as to the loss, theft, destruction or mutilation of the Restated Land Note and Restated Construction Note, the Mortgage, this Agreement or any other security document which is not of public record, and in the case of any such loss, theft, destruction or mutilation, upon surrender and cancellation of the Restated Note, the Mortgage, this Agreement or other security document, Mortgagor will issue in lieu thereof, a replacement or restated note or notes, mortgage or other security document in the same principal amount thereof and otherwise of like tenor.

 

19.   USURY LAWS.

 

All agreements between Mortgagor and Mortgagee are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration of maturity of the indebtedness evidenced hereby or otherwise, shall the amount paid or agreed to be paid to Mortgagee for the use or the forbearance of the indebtedness evidenced hereby exceed the maximum permissible under applicable law. As used herein, the term “applicable law” shall mean the law in effect as of the date hereof; provided, however, that in the event there is a change in the law which results in a higher permissible rate of interest, then this Modification Agreement shall be governed by such new law as of its effective date. In this regard, it is expressly agreed that it is the intent of Mortgagor and Mortgagee in the execution, delivery and acceptance of this Modification Agreement to contract in strict compliance with the laws of the State of New Jersey from time to time in effect. If, under or from any circumstances whatsoever, fulfillment of any provision hereof or of any of the Loan Documents or the security documents at the time of performance of such provision shall be due, shall involve transcending the limit of such validity prescribed by applicable law, then the obligation to be fulfilled shall automatically be reduced to the limits of such validity, and if under or from circumstances whatsoever Mortgagee should ever receive as interest an amount which would exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of the principal balance evidenced hereby and not to the payment of interest. This provision shall control every other provision of all agreements between Mortgagor   and Mortgagee.

 

 

 

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IN WITNESS WHEREOF the parties have executed this Modification Agreement as of the day and year first above written.

 

 

PNC BANK, NATIONAL ASSOCIATION

 

 

 

By: /s/ Brian Kelly

 

       Brian Kelly, Vice President


 

 

ACADIA – P/A LIBERTY LLC

 

 

 

By: /s/ Robert Masters

 

       Robert Masters, Senior Vice President

 

 

STATE OF NEW JERSEY

:

 

SS:

COUNTY OF MIDDLESEX

:

 

On the 17th day of September, in the year 2010, before me, the undersigned, personally appeared BRIAN KELLY , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

 

 

/s/ Terri Berlin

 

Notary Public

 

 

Terri Berlin

Notary Public, State of New Jersey

My Commission Expires Aug. 2, 2014

I.D. # 2168548

 

 

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STATE OF NEW YORK:

 

 

ss:

COUNTY OF WESTCHESTER:

 

 

On the 16th day of September, in the year 2010, before me, the undersigned, personally appeared ROBERT MASTERS , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

 

 

/s/ Debra Leibler-Jones

 

Notary Public

 

 

Debra Leibler-Jones

No. 01LE6005994

Qualified in Dutchess County

Commission Expires 4/20/2014

 

 

 

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SCHEDULE A

 

LEGAL DESCRIPTION

 

Policy Number: M-8912-000881957

 

Title Number: 832793

DESCRIPTION SHEET

 

Parcel I

 

ALL THAT CERTAIN plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Fourth Ward of the Borough and County of the Queens, City and State of New York, bounded and described as follows:-

 

BEGINNING at the corner formed by the intersection of the easterly side of 97th Street with the northerly side of Liberty Avenue;

 

RUNNING THENCE easterly along the northerly side of Liberty Avenue 201.365 feet (deed) 201.18 (survey) to the corner formed by the intersection of the northerly side of Liberty Avenue with the westerly side of 98th Street;

 

THENCE northerly along the westerly side of 98th Street 262.81 feet (deed), 262.92 feet (survey);

 

THENCE westerly at right angles to 98th Street, 100 feet 0 inches;

 

THENCE southerly parallel to the westerly side of 98th Street 125.03 feet;

 

THENCE westerly at right angles to the previous course, and along the southerly line of Lot No. 1108 as shown on a Map entitled, "Hitchcock's & Dentons Complete Map of Ozone Park" filed in the Queens County Clerk's Office on 10/14/1884 as Map No. 288, 50 feet 0 inches;

 

THENCE southerly along the division line of Lot Nos. 1110 and 1111 as shown on said Map and parallel with the easterly side of 97th Street 26.12 feet (deed), 26.03 feet (survey);

 

THENCE westerly along a line forming a right angle to the easterly side of 97th Street, 50 feet to a point on the easterly side of 97th Street;

 

THENCE southerly along said side of 97th Street, 90.01 feet (deed), 90.10 feet (survey) to the corner formed by the intersection of the easterly side of 97th Street with the northerly side of Liberty Avenue, the point or place of BEGINNING.

 

Subject to an easement over the most northerly 10 feet of premises described in Deed in Reel 843 page 1397 for the purpose of ingress and egress for foot passengers only to and from the buildings immediately adjoining the hereinabove described premises on the east and fronting on Liberty Avenue and the building immediately adjoining the hereinabove described premises on the north and fronting on 97' Street.

 

For information only:   Said premises are known as 103-71 97th Street a/k/a 97-01/97-15 Liberty Avenue, Ozone Park, Queens, New York and are designated as Section 39 Block 9120 Lot 40 as shown on the Tax Map of the City of New York, County of Queens.

 

continued.......

 

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Policy Number: M-8912-000881957

 

Title Number: 832793

 

   

 

DESCRIPTION SHEET

(continued - page 2)

 

Parcel II

 

ALL THAT CERTAIN plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Fourth Ward of the Borough and County of the Queens, City and State of New York, bounded and described as follows:-

 

BEGINNING at the corner formed by the intersection of the northerly side of Liberty Avenue with the easterly side of 98th Street;

 

RUNNING THENCE easterly 201.18 feet to the corner formed by the intersection of the northerly side of Liberty Avenue with the westerly side of 99th Street;

 

THENCE northerly along said side of 99th Street, 190.12 feet more or less to the division line between Lots 24 and 30, as said lots exist on the current Tax Map;

 

THENCE westerly parallel with the southerly side of 103rd Avenue 100.0 feet to a point on the center line of the block;

 

THENCE northerly parallel with the easterly side of 98th Street and along the center line of the of the block 50.04 feet;

 

THENCE easterly parallel with the southerly side of 103rd Avenue, 100.0 feet to a point on the westerly side of 99th Street;

 

THENCE northerly along the westerly side of 99th Street 225.18 feet more or less to a point along the division line between Lots Nos. 18 and 24 on the current Tax Map;

 

 

continued.......

 

 

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Policy Number: M-8912-000881957

 

Title Number: 832793

 

DESCRIPTION SHEET

(continued - page 3)

 

 

THENCE westerly 200.0 feet to a point on the easterly side of 98th Street distant 300.25 feet southerly from the southeasterly corner of 103rd Avenue and 98th Street;

 

THENCE southerly along the easterly side of 98th Street, 443.58 feet to the corner formed by the intersection of the northerly side of Liberty Avenue with the easterly side of 98th Street, the point or place of BEGINNING.

 

 

 

 

For information only:   Said premises are known as 103-37/103-49 98th Street a/k/a 103-30/103-52 99th Street and 103-51/103-65 98th Street a/k/a 103-56/103-60 99th Street a/k/a 98-01/98-15 Liberty Avenue, Ozone Park, Queens, New York and are designated as Section 39 Block 9121 Lot 24 as shown on the Tax Map of the City of New York, County of Queens.

 

 

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Amendment to Loan Documents

 

 

 

 

THIS AMENDMENT TO LOAN DOCUMENTS (this “Amendment” ) is made as of September 17, 2010 (effective as of September 2, 2010), between ACADIA-P/A LIBERTY, LLC, a Delaware limited liability company (the “Borrower” ), ACADIA STRATEGIC OPPORTUNITY FUND II, LLC, a Delaware limited liability company (the “ Guarantor ”) and PNC BANK, NATIONAL ASSOCIATION (the “Bank” ).

 

BACKGROUND

 

A.           The Borrower and the Guarantor have executed and delivered to the Bank (or a predecessor which is now known by the Bank’s name as set forth above), one or more promissory notes, letter agreements, loan agreements, security agreements, mortgages, pledge agreements, collateral assignments, and other agreements, instruments, certificates and documents, some or all of which are more fully described on attached Exhibit A, which is made a part of this Amendment (collectively as amended from time to time, the “Loan Documents” ) which evidence or secure some or all of the Borrower’s obligations to the Bank for one or more loans or other extensions of credit (the “Obligations” ).

 

B.           The Borrower, the Guarantor and the Bank desire to amend the Loan Documents as provided for in this Amendment.

 

NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound hereby, the parties hereto agree as follows:

 

1.           Certain of the Loan Documents are amended as set forth in Exhibit A.  Any and all references to any Loan Document in any other Loan Document shall be deemed to refer to such Loan Document as amended by this Amendment.  This Amendment is deemed incorporated into each of the Loan Documents. Any initially capitalized terms used in this Amendment without definition shall have the meanings assigned to those terms in the Loan Documents.  To the extent that any term or provision of this Amendment is or may be inconsistent with any term or provision in any Loan Document, the terms and provisions of this Amendment shall control.

 

2.           The Borrower and the Guarantor hereby certify that: (a) all of their representations and warranties in the Loan Documents, as amended by this Amendment, are, except as may otherwise be stated in this Amendment: (i) true and correct as of the date of this Amendment, (ii) ratified and confirmed without condition as if made anew, and (iii) incorporated into this Amendment by reference, (b) no Event of Default or event which, with the passage of time or the giving of notice or both, would constitute an Event of Default, exists under any Loan Document which will not be cured by the execution and effectiveness of this Amendment, (c) no consent, approval, order or authorization of, or registration or filing with, any third party is required in connection with the execution, delivery and carrying out of this Amendment or, if required, has been obtained, and (d) this Amendment has been duly authorized, executed and delivered so that it constitutes the legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms.  The Borrower confirms that the Obligations remain outstanding without defense, set off, counterclaim, discount or charge of any kind as of the date of this Amendment.

 

3.           The Borrower and the Guarantor hereby confirm that any collateral for the Obligations, including liens, security interests, mortgages, and pledges granted by the Borrower or third parties (if applicable), shall continue unimpaired and in full force and effect, and shall cover and secure all of the Borrower’s existing and future Obligations to the Bank, as modified by this Amendment.

 

 

 


 

 

4.           As a condition precedent to the effectiveness of this Amendment, the Borrower and the Guarantor shall comply with the terms and conditions (if any) specified in Exhibit A.

 

5.           To induce the Bank to enter into this Amendment, the Borrower and the Guarantor waive and release and forever discharge the Bank and its officers, directors, attorneys, agents, and employees from any liability, damage, claim, loss or expense of any kind that it may have against the Bank or any of them arising out of or relating to the Obligations.  The Borrower and the Guarantor further agree to indemnify and hold the Bank and its officers, directors, attorneys, agents and employees harmless from any loss, damage, judgment, liability or expense (including attorneys’ fees) suffered by or rendered against the Bank or any of them on account of any claims arising out of or relating to the Obligations.  The Borrower and the Guarantor further state that he or it has carefully read the foregoing release and indemnity, knows the contents thereof and grants the same as its own free act and deed.

 

6.           This Amendment may be signed in any number of counterpart copies and by the parties to this Amendment on separate counterparts, but all such copies shall constitute one and the same instrument.   Delivery of an executed counterpart of a signature page to this Amendment by facsimile transmission shall be effective as delivery of a manually executed counterpart.  Any party so executing this Amendment by facsimile transmission shall promptly deliver a manually executed counterpart, provided that any failure to do so shall not affect the validity of the counterpart executed by facsimile transmission.

 

7.           This Amendment will be binding upon and inure to the benefit of the Borrower and the Bank and their respective heirs, executors, administrators, successors and assigns.

 

8.           This Amendment has been delivered to and accepted by the Bank and will be deemed to be made in the State where the Bank’s office indicated in the Loan Documents is located.  This Amendment will be interpreted and the rights and liabilities of the parties hereto determined in accordance with the laws of the State where the Bank’s office indicated in the Loan Documents is located, excluding its conflict of laws rules.

 

9.           The Borrower and Guarantor covenant and agree that there is currently due and owing on the Loan the principal sum of $ 10,450,000.00, together with interest thereon and other charges evidenced thereby, without offset, defense or counterclaim of any kind or nature whatsoever.

 

10.           Except as amended hereby, the terms and provisions of the Loan Documents remain unchanged, are and shall remain in full force and effect, and are hereby ratified and confirmed, unless and until modified or amended in writing in accordance with their terms.  Except as expressly provided herein, this Amendment shall not constitute an amendment, waiver, consent or release with respect to any provision of any Loan Document, a waiver of any default or Event of Default under any Loan Document, or a waiver or release of any of the Bank’s rights and remedies (all of which are hereby reserved).   The Borrower and the Guarantor expressly ratify and confirm the confession of judgment (if applicable) and waiver of jury trial provisions contained in the Loan Documents.

 

 

2


 

 

 

WITNESS the due execution of this Amendment as a document under seal as of the date first written above.

 

 

 

BORROWER:

 

 

 

 

 

 

ACADIA – P/A LIBERTY LLC

 

 

 

 

 

 

 

 

 

 

 

By: /s/ Robert Masters

 

Robert Masters, Senior Vice President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GUARANTOR:

 

 

 

 

 

 

ACADIA STRATEGIC OPPORTUNITY FUND II, LLC

 

By:

Acadia Realty Acquisition II, LLC, its Managing Member

 

 

By:

Acadia Realty Limited Partnership, its sole member

 

 

 

By:

Acadia Realty Trust, its General Partner

 

 

By:

/s/ Robert Masters                                 

 

 

Robert Masters, Senior Vice President

 

 

STATE OF NEW YORK

)

 

)                        ss:

COUNTY OF WESTCHESTER

)

 

On the 3rd day of September, in the year 2010, before me, the undersigned, personally appeared ROBERT MASTERS , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

 

 

 

/s/ Debra Leibler-Jones

 

Notary Public

 

 

Debra Leibler-Jones

No. 01LE6005994

Qualified in Dutchess County

Commission Expires 4/20/2014

 

 

3


 

 

 

 

PNC BANK, NATIONAL ASSOCIATION

 

 

 

 

 

 

 

By:

/s/ Brian Kelly                                         

 

 

Brian Kelly

 

 

Vice President

 

 

4


 

 

 

EXHIBIT A TO

AMENDMENT TO LOAN DOCUMENTS

DATED AS OF SEPTEMBER 17, 2010

(EFFECTIVE AS OF SEPTEMBER 2, 2010)

 

 

A.

The “Loan Documents” that are the subject of this Amendment include the following (as any of the foregoing have previously been amended, modified or otherwise supplemented):

 

1.           The Amended and Restated Mortgage Note dated July 22, 2009 (effective as of July 18, 2009), executed by the Borrower and delivered to the Lender, as amended by amendment agreement dated and effective July 19, 2010 (“the “Note”);

 

2.           The Building Loan Leasehold Mortgage and Security Agreement dated May 18, 2006, executed by the Borrower and delivered to the Lender regarding certain real property located in the Borough of Queens, City of New York, State of New York, as modified by the Amendment to Loan Documents dated May 21, 2009 (effective as of May 18, 2009) and Mortgage Modification Agreement dated July 22, 2009 (effective as of July 18, 2009), as amended by amendment agreement dated and effective July 19, 2010;

 

3.           The Building Loan Agreement dated May 18, 2006, executed by the Borrower and the Lender regarding the Loan, as modified by the Amendment to Loan Documents dated May 21, 2009 (effective as of May 18, 2009) and Mortgage Modification Agreement dated July 22, 2009 (effective as of July 18, 2009);

 

4.           The Building and Term Loan Assignment of Rents, Leases and Profits dated May 18, 2006, executed by the Borrower and delivered to the Lender regarding the Premises, as modified by the Amendment to Loan Documents dated May 21, 2009 (effective as of May 18, 2009) and Mortgage Modification Agreement dated July 22, 2009 (effective as of July 18, 2009), as amended by amendment agreement dated and effective July 19, 2010;

 

5.           The Guaranty and Suretyship dated May 18, 2006, executed by the Guarantor and delivered to the Lender, as reaffirmed on May 21, 2009 (effective as of May 18, 2009) on July 22, 2009 (effective as of July 18, 2009) and on July 19, 2010;

 

6.           The Environmental Indemnity Agreement dated May 18, 2006, executed by the Borrower and the Guarantor and delivered to the Lender, as modified by the Amendment to Loan Documents dated May 21, 2009 (effective as of May 18, 2009) and Mortgage Modification Agreement dated July 22, 2009 (effective as of July 18, 2009), as amended by amendment agreement dated and effective July 19, 2010;

 

7.           UCC-1 Financing Statements (the “Financing Statements”) to be filed in the applicable county filing office and the Secretary of State's Office; and

 

8.           All other documents, instruments, agreements, and certificates executed and delivered in connection with the Loan Documents listed in this Section A.

 

B.           The Note is hereby amended as follows:

 

 

1.

The term “Maturity Date” is hereby amended to mean September 17, 2010.

 

C.

Conditions to Effectiveness of Amendment: The Bank’s willingness to agree to the amendments set forth in this Amendment are subject to the prior satisfaction of the following conditions:

 

 

1.

Execution by all parties and delivery to the Bank of this Amendment.

 

 

A-1


 


CONSENT OF GUARANTOR

 

Each of the undersigned guarantors (jointly and severally if more than one, the “ Guarantor ”) consents to the provisions of the foregoing Amendment (the “ Amendment ”) and all prior amendments (if any) and confirms and agrees that: (a) the Guarantor’s obligations under its Guaranty and Suretyship Agreement dated May 18, 2006, as reaffirmed to date (collectively if more than one, the “ Guaranty ”), relating to the Obligations mentioned in the Amendment, shall be unimpaired by the Amendment; (b) the Guarantor has no defenses, set offs, counterclaims, discounts or charges of any kind against the Bank, its officers, directors, employees, agents or attorneys with respect to the Guaranty; and (c) all of the terms, conditions and covenants in the Guaranty remain unaltered and in full force and effect and are hereby ratified and confirmed and apply to the Obligations, as modified by the Amendment.  The Guarantor certifies that all representations and warranties made in the Guaranty are true and correct.

 

The Guarantor hereby confirms that any collateral for the Obligations, including liens, security interests, mortgages, and pledges granted by the Guarantor or third parties (if applicable), shall continue unimpaired and in full force and effect, shall cover and secure all of the Guarantor’s existing and future Obligations to the Bank, as modified by this Amendment.

 

By signing below, each Guarantor who is an individual provides written authorization to the Bank or its designee (and any assignee or potential assignee hereof) to obtain the guarantor's personal credit profile from one or more national credit bureaus.  Such authorization shall extend to obtaining a credit profile for the purposes of update, renewal or extension of such credit or additional credit and for reviewing or collecting the resulting account.  A photocopy or facsimile copy of this authorization shall be valid as the original.  By signature below, each such Guarantor affirms his/her identity as the respective individual(s) identified in the Guaranty.

 

The Guarantor ratifies and confirms the indemnification, confession of judgment (if applicable) and waiver of jury trial provisions contained in the Guaranty.

 

WITNESS the due execution of this Consent as a document under seal as of the date of this Amendment, intending to be legally bound hereby.

 

 

 

ACADIA STRATEGIC OPPORTUNITY FUND II, LLC

 

By:

Acadia Realty Acquisition II, LLC, its Managing Member

 

 

By:

Acadia Realty Limited Partnership, its sole member

 

 

 

By:

Acadia Realty Trust, its General Partner

 

 

By:

/s/ Robert Masters                                 

 

 

Robert Masters, Senior Vice President

 

 

 


 


 

 

Amended and Restated Mortgage Note

(LIBOR Swap Transaction)

 

 

 

 

$10,000,000.00

 

 

September 17, 2010 (effective as of

September 17, 2010)


 

FOR VALUE RECEIVED , ACADIA – P/A LIBERTY LLC, a Delaware limited liability company (the “Borrower” ), with an address at c/o Acadia Realty Trust, 1311 Mamaroneck Avenue, Suite 260, White Plains, New York 10605, promises to pay to the order of PNC BANK, NATIONAL ASSOCIATION (the “Bank” ), in lawful money of the United States of America in immediately available funds at its offices located at Two Tower Center Boulevard, 18 th Floor, East Brunswick, New Jersey 08816, or at such other location as the Bank may designate from time to time, the principal sum of TEN MILLION AND 00/100 ($10,000,000.00) DOLLARS (the “ Loan ” or the “ Facility ”), together with interest accruing from the date of initial advance on the outstanding principal balance hereof, as provided below:

 

1.             Maturity Date and Extension Option .   

 

(a)           The “ Maturity Date ” shall mean September 1, 2011; provided, however, in the event that the Borrower exercises the Extension Option (as such term is defined in Paragraph 1(b) below), the “Maturity Date” shall mean September 1, 2012.  The Borrower acknowledges and agrees that in no event will the Bank be under any obligation to extend or renew the Facility or this Note beyond the Maturity Date, except as expressly set forth herein.  No further advances shall be made hereunder.

 

(b)           Anything to the contrary notwithstanding, the Borrower shall have the option (the “ Extension Option ”) to extend the Maturity Date from September 1, 2011 for a period of one (1) year (the “ Extension Period ”) ending on September 1, 2012, provided that the following conditions shall have been met:

 

(i)           No Event of Default (as such term is defined in Paragraph 9 below or in the Mortgage, as hereinafter defined), shall have occurred and be continuing;

 

(ii)           Prior to the commencement of the Extension Period, the Borrower shall have provided the Bank with at least sixty (60) days prior written notice (the “Extension Period Notice ”) of the Borrower’s intention to extend the Maturity Date;

 
 

(iii)   CVS O.P., LLC is in occupancy and 85% of the in-line retail space of the Improvements is leased and occupied;

 

(iv)   Guarantor financial covenant compliance is evidenced;

 

(v)   The Facility does not exceed 65% of the “as-stabilized” value of the Property (as defined in the Mortgage);

 

(vi)   DSCR (as hereinafter defined) is not less than 1.20 to 1.00; and

 

(vii)   With the Extension Period Notice, the Borrower shall have paid to the Bank a non-refundable fee of three tenths of one percent (0.30%) of the outstanding principal balance of the Loan on the first day of the Extension Period. In connection with the Borrower’s request for the Extension Option, the Bank, at its option, may order a new appraisal of the Property, at the cost of the Borrower.

 

 

 


 

 

“DSCR” will be defined as NOI divided by Debt Service. “NOI” will be calculated on an annualized pro forma basis based on the prior three months of operating history, including rents from self storage tenants not more than 45 days in arrears and expected effective minimum rent from certain executed leases with tenants in occupancy or who are not yet in occupancy but are scheduled to take occupancy within ninety (90) days of the test date, but excluding to-be-determined reasonable, customary tenant improvements/capital expenditure reserves and income from tenants in default, bankruptcy and more than sixty days in arrears in the payment of base rent. “Debt Service” will be calculated on an annualized basis assuming the higher of (i) actual interest expense and scheduled principal amortization of the commitment under the Facility, (ii) mortgage-style amortization of the commitment under the Facility over 25 years at a rate of 1.50% over the yield to maturity of the 10-year Treasury Note, or (iii) a 8.29% mortgage constant, each calculated immediately prior to each extension.

 

If a reduction in the Facility is necessary to meet the loan-to-value requirement or the DSCR requirements set forth above, the Borrower may elect to (A) make a permanent principal reduction payment, or (B) deliver a letter of credit in form and issued by an issuer acceptable to the Bank, in either case in an amount which will satisfy the loan to value or DSCR requirement and thereby obtain the applicable extension, so long as the other conditions for extension are met. In the event Borrower elects to post a letter of credit in order to satisfy the above DSCR requirement, the letter of credit shall be released when the DSCR requirement is met and maintained for a period of sixty (60) consecutive days, provided no default or Event of Default exists.

 

2.             Rate of Interest .    Amounts outstanding under this Note will bear interest at a rate per annum equal to the sum of (A) LIBOR in effect on each Reset Date plus (B) three hundred twenty five (325) basis points (3.25%).  Interest hereunder will be calculated based on the actual number of days that principal is outstanding over a year of 360 days.  Notwithstanding the foregoing, in the event that the Master Agreement (as defined in Paragraph 13 herein), amendment or successor thereto or other interest or currency swap, future, option or other interest rate protection or similar agreement is not in effect, amounts outstanding under this Note will bear interest at a rate per annum equal to, as determined at the option of the Borrower (each, an “ Option ”), at (1) the sum of (a) LIBOR in effect on each Reset Date plus (b) three hundred twenty five (325) basis points (3.25%) or (2) the sum of (a) the Base Rate plus (b) two hundred twenty five (225) basis points (2.25%). In no event will the rate of interest hereunder exceed the maximum rate allowed by law.

 

For purposes hereof, the following


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