Exhibit 10.6
AMENDED AND RESTATED MEZZANINE
PROMISSORY NOTE A-1
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$281,250,000
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New York, New York
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Dated as of April, 1 2008
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Amended as of August 22,
2008
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FOR VALUE RECEIVED, each of the
entities listed as a “Maker” on the signature pages to
this Note (collectively, the “ Maker ”),
promises to pay to the order of GOLDMAN SACHS MORTGAGE COMPANY, a
New York limited partnership (together with its successors and
assigns, “ Holder ”) or to such other account
pursuant to such other wiring instruction as the Holder may from
time to time designate in writing, the original principal amount of
TWO EIGHTY ONE MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS
($281,250,000), or so much thereof as may be outstanding from time
to time (the “ Principal Amount ”), together
with interest thereon and all other amounts payable to the Holder
under the Loan Documents with respect to the Loan, such principal,
interest and other amounts to be payable as provided in the Loan
Agreement (as defined below) and the other Loan Documents.
Capitalized terms used herein but not otherwise defined herein
shall have the meanings assigned to such terms in the Loan
Agreement.
This Amended and Restated Mezzanine
Promissory Note A-1 (this “ Note ”), together
with that certain Amended and Restated Mezzanine Promissory Note
A-2 (the “ Related Note ”), dated as of
April 1, 2008, and effective as of the date hereof, by Maker
for the benefit of Citicorp North America, Inc. (“
Citicorp ”), replaces, but does not extinguish the
indebtedness evidenced by: (i) that certain Mezzanine
Promissory Note A-1 by Maker for the benefit of Goldman Sachs
Commercial Mortgage Capital, L.P., (ii) that certain Mezzanine
Promissory Note A-2 by Maker for the benefit of Citicorp and
(iii) that certain Mezzanine Promissory Note A-3 by Maker for
the benefit of SL Green Realty Corp., each dated as of
April 1, 2008 (collectively, the “ Original Notes
”). This Note, together with the Related Note, amends and
restates the Original Notes in their entirety but does not
constitute a novation thereof.
This Note is one of the Notes
referred to in that certain Amended and Restated Senior Mezzanine
Loan Agreement, dated as of April 1, 2008, between the Maker,
as borrower, and the Holder, as a lender (as amended, modified or
supplemented and in effect from time to time, the “ Loan
Agreement ”) and evidences a portion of the Loan made by
the Lender thereunder. Reference to the Loan Agreement is hereby
made for a statement of the rights of the Holder and the duties and
obligations of the Maker, but neither this reference to the Loan
Agreement nor any provision thereof shall affect or impair the
absolute and unconditional obligation of the Maker to pay the
principal, interest and other amounts payable with respect to this
Note when due. The Principal Amount shall bear interest at the
rates provided for in the Loan Agreement.
This Note is secured by the Pledge
Agreement and the other security interests and liens granted in the
Loan Agreement and in other Loan Documents.
The principal sum evidenced by this
Note, together with accrued interest and other sums or amounts due
hereunder, shall become immediately due and payable at the option
of the Holder upon the occurrence and during the continuation of
any Event of Default in accordance with the provisions of the Loan
Agreement.
With respect to the amounts due and
payable pursuant to this Note, the Maker waives demand, presentment
and notice, except for notices required by the Loan
Documents.
In no event shall the amount of
interest (and any other sums or amounts that are deemed to
constitute interest under applicable Legal Requirements) due or
payable hereunder (including interest calculated at the Default
Rate) exceed the maximum rate of interest designated by applicable
Legal Requirements (the “ Maximum Amount ”), and
in the event such excess payment is inadvertently paid by the Maker
or inadvertently received by the Holder, then such excess sum shall
be credited as a payment of principal on this Note, and if in
excess of the outstanding Principal Amount of this Note, shall be
immediately returned to the Maker upon such determination. It is
the express intent hereof that the Maker not pay and the Holder not
receive, directly or indirectly, interest in excess of the Maximum
Amount.
Other than as expressly set forth in
the Loan Documents, this Note may not be assigned in whole or in
part by the Maker. The Holder shall have the right from time to
time at its discretion to assign this Note, in whole or in part,
only by registration of such assignment on a register maintained as
provided in the Loan Agreement. Maker’s obligations in
connection with any such assignment shall be as set forth in the
Loan Documents.
The Holder shall not by any act,
delay, omission or otherwise be deemed to have amended, modified,
supplemented, waived, extended, discharged or term