Exhibit 10.133
New Jersey
Loan No. 374-0185
NEW YORK LIFE PROMISSORY NOTE
$120,000,000.00Dated as of October 28,
2008
For value received,
the undersigned, herein called “Borrowers”, promise to
pay to the order of NEW YORK LIFE INSURANCE COMPANY
(“New York Life”), a New York mutual insurance company,
who, together with any subsequent holder of this note (hereinafter,
this “Note”), is hereinafter referred to as
“Lender”, at 51 Madison Avenue, New York, NY 10010 or
at such other place as Lender shall designate in writing, in coin
or currency which, at the time or times of payment, is legal tender
for public and private debts in the United States, the principal
sum of ONE HUNDRED TWENTY MILLION DOLLARS plus interest on the
outstanding principal balance at the rate and payable as
follows:
Interest shall accrue
from the date of advance until maturity at the rate of six and
eighty hundredths percent (6.80%) per annum (the “Interest
Rate”).
Accrued interest only
on the amount advanced shall be paid on the first day of the month
following the date of advance (the “Amortization Period
Commencement Date”). On the first day of the
following month and on the first day of each month thereafter until
maturity, installments of principal and interest shall be paid in
the amount of $782,311.00. In the event a payment date
falls on a weekend or a legal holiday, the payment shall be due on
the preceding business day.
Interest will be
calculated assuming each month contains thirty (30) days and each
calendar year contains three hundred sixty (360)
days. In the event of a partial month, however, interest
for such partial month will be calculated based on the actual
number of days the principal balance of this Note is outstanding in
the month and the actual number of days in the calendar year.
Payments shall be
made directly to the Servicer, as defined in the Lien Instrument
(as hereinafter defined), by electronic transfer of funds using the
Automated Clearing House System. The Northwestern Mutual
Life Insurance Company (“Northwestern”) is the initial
Servicer. Borrowers shall have no liability to Lender or
Northwestern (“Co-Lender”) in the event of the
misapplication of payments by the Servicer. All
installments shall be applied first in payment of interest,
calculated monthly on the unpaid principal balance, and the
remainder of each installment shall be applied in payment of
principal. The entire unpaid principal balance plus
accrued interest thereon shall be due and payable on November 1,
2018 (the “Maturity Date”).
Provided Lender has
no further obligation to advance principal under this Note to
Borrowers, Borrowers shall have the right, upon not less than ten
(10) business days prior written notice, beginning on the first
anniversary of the advance of funds of paying this Note in full
with a prepayment fee. Borrowers’ failure to
prepay within twenty (20) business days of the date of
Borrowers’ written notice of prepayment shall be deemed a
withdrawal of Borrowers’ notice of prepayment, and Borrowers
shall be required to submit another written notice of prepayment
pursuant to the terms and conditions set forth in this Note if
Borrowers thereafter elect to prepay this Note. This
prepayment fee represents consideration to Lender for loss of yield
and reinvestment costs and shall also be payable (only if collected
from the condemning authority as will be set forth in a side letter
between Borrowers, Lender and Co-Lender) whenever prepayment occurs
as a result of the application of Condemnation Proceeds, as defined
in the Lien Instrument (as hereinafter defined), provided ,
however , that the side letter shall be binding upon all
successors and assigns of Lender. The prepayment fee
shall be the greater of Yield Maintenance or one percent (1%) of
the outstanding principal balance of this Note.
“Yield
Maintenance” means the amount, if any, by which
(i)
the present value of the Then Remaining Payments (as hereinafter
defined) calculated using a periodic discount rate (corresponding
to the payment frequency under this Note) which, when compounded
for such number of payment periods in a year, equals the linearly
interpolated per annum effective yield of the two (2) Most Recently
Auctioned United States Treasury Obligations (as hereinafter
defined) having maturity dates most nearly equivalent to the
Average Life Date (as hereinafter defined) as reported by The
Wall Street Journal (“WSJ”) dated one (1) business
day prior to the date of prepayment (except that the WSJ Weekend
Edition shall be used in lieu of the Monday WSJ provided the
previous business day’s Treasury yields are published
therein); exceeds
(ii)
the outstanding principal balance of this Note (exclusive of all
accrued interest).
If such United States
Treasury obligation yields shall not be reported as of such time or
the yields reported as of such time shall not be ascertainable,
then the periodic discount rate shall be equal to the linearly
interpolated per annum effective yield of the two (2) Treasury
Constant Maturity Series yields having maturity dates most nearly
equivalent to the Average Life Date reported, for the latest day
for which such yields shall have been so reported, as of one (1)
business day preceding the prepayment date, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded United States Treasury
obligations.
“Then Remaining
Payments” means payments in such amounts and at such times as
would have been payable subsequent to the date of such prepayment
in accordance with the terms of this Note.
“Most Recently
Auctioned United States Treasury Obligations” means the U.S.
Treasury bonds, notes and bills with maturities of 10 years, 5
years, 2 years and 1 year which, as of the date the prepayment fee
is calculated, were most recently auctioned by the United States
Treasury.
“Average Life
Date” means the date which is the Average Life from the date
of prepayment.
“Average
Life” means the weighted-average time for the return of the
then-remaining principal balance of the Indebtedness (as
hereinafter defined) as of the date of prepayment.
Upon the occurrence
of an Event of Default (as defined in the Lien Instrument) followed
by the acceleration of the whole indebtedness evidenced by this
Note, the payment of such indebtedness will constitute an evasion
of the prepayment terms hereunder and be deemed to be a voluntary
prepayment hereof and such payment will, therefore, to the extent
not prohibited by law, include the prepayment fee required under
the prepayment in full right recited above and, if such prepayment
occurs prior to the first anniversary of the date hereof, then such
payment will, to the extent not prohibited by law, include a
prepayment fee equal to the greater of Yield Maintenance or ten
percent (10%) of the outstanding principal balance of this
Note.
In the event of a
partial prepayment of this Note for any reason contemplated in the
Loan Documents (as defined in the Lien Instrument), the prepayment
fee, if required, shall be an amount equal to the prepayment fee if
this Note were prepaid in full, multiplied by a fraction, the
numerator of which shall be the principal amount prepaid and the
denominator of which shall be the outstanding principal balance of
this Note immediately preceding the partial prepayment date.
Notwithstanding the
above, this Note may be prepaid in full at any time, without a
prepayment fee, during the last sixty (60) days of the term of this
Note, provided that at the time of prepayment Borrowers are not in
default under any provision contained in the Loan Documents.
Borrowers acknowledge
and agree that the Interest Rate hereunder shall be increased if
certain financial statements and other reports are not furnished to
Lender, all as described in more detail in the section of the Lien
Instrument entitled “ Financial Statements
”.
This Note and a
Promissory Note of even date herewith from Borrowers to Co-Lender
in the amount of One Hundred Twenty Million Dollars (the
“Northwestern Note”) is secured by certain property
(the “Property”) in Jersey City, Hudson County, State
of New Jersey described in a Mortgage and Security Agreement and
Financing Statement (the “Lien Instrument”) of even
date herewith executed by M-C PLAZA V L.L.C., a New Jersey limited
liability company, CAL-HARBOR V URBAN RENEWAL ASSOCIATES L.P., a
New Jersey limited partnership, and CAL-HARBOR V LEASING ASSOCIATES
L.L.C., a New Jersey limited liability company, to THE NORTHWESTERN
MUTUAL LIFE INSURANCE COMPANY and NEW YORK LIFE INSURANCE
COMPANY. Any and all payments made by Borrowers, whether
regularly-scheduled installment payments, voluntary prepayments or
otherwise, shall be applied by the Servicer against this Note and
the Northwestern Note ratably and without preference, pari
passu . Lender and Co-Lender are hereinafter
referred to together as the “Lenders”.
Upon the occurrence
of an Event of Default (as defined in the Lien Instrument), the
whole unpaid principal hereof and accrued interest shall, at the
option of Lender, to be exercised at any time thereafter, become
due and payable at once without notice, notice of the exercise of,
and notice of the intent to exercise, such option being hereby
expressly waived.
All parties at any
time liable, whether primarily or secondarily, for payment of
indebtedness evidenced hereby, for themselves, their heirs, legal
representatives, successors and assigns, respectively, expressly
waive presentment for payment, notice of dishonor, protest, notice
of protest, and diligence in collection; consent to the extension
by Lender of the time of said payments or any part thereof; further
consent that the real or collateral security or any part thereof
may be released by Lender, without in any way modifying, altering,
releasing, affecting, or limiting their respective liability or the
lien of the Lien Instru
