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First Amendment To Building Loan Agreement

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Sectors: Real Estate
Governing Law: New York, View New York State Laws
Effective Date: March 05, 2003
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FIRST AMENDMENT TO BUILDING LOAN AGREEMENT


Dated as of March 5, 2003


Between


731 COMMERCIAL LLC and 731 RESIDENTIAL LLC,
collectively, as Borrower,


and


BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH,
as Agent,


and


THE LENDERS NAMED HEREIN,
as Lenders


---------------


Location: 731 Lexington Avenue
New York, New York


County: New York County


------------------------------


TO BE FILED WITH THE COUNTY CLERK
OF NEW YORK COUNTY, NEW YORK


================================================================================


FIRST AMENDMENT TO BUILDING LOAN AGREEMENT


THIS FIRST AMENDMENT TO BUILDING LOAN AGREEMENT, dated as of March 5, 2003 (this "AMENDMENT"), between 731 COMMERCIAL LLC ("COMMERCIAL OWNER") and 731 RESIDENTIAL LLC ("RESIDENTIAL OWNER"), each a Delaware limited liability company, having its principal place of business at 888 Seventh Avenue, New York, New York 10019, collectively as Borrower ("BORROWER"), and BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, a German banking corporation organized under the laws of the Federal Republic of Germany, having an address at 622 Third Avenue, New York, New York 10017, as administrative agent (including any of its successors and assigns, "AGENT") for itself and the other Lenders signatory hereto (collectively, together with such other co-lenders as may exist from time to time, "LENDERS").


W I T N E S S E T H :


WHEREAS, pursuant to the terms and provisions and subject to the conditions set forth in that certain Building Loan Agreement dated as of July 3, 2002 between Borrower, Agent and Lenders signatory thereto filed on July 9, 2002 as Index No. 150 in the County Clerk's Office of New York County (the "EXISTING BUILDING LOAN AGREEMENT"), Lender has agreed to make advances of a certain building loan to Borrower in the aggregate principal sum of up to Two Hundred Million and no/100 Dollars ($200,000,000.00) (the "EXISTING BUILDING LOAN AMOUNT" or "EXISTING BUILDING LOAN") for Building Loan Costs (as hereinafter defined) related to the construction of the Improvements (as hereinafter defined) on the property described on Exhibit A hereto.


WHEREAS, Borrower, Agent and Lenders wish to amend the Existing Building Loan Agreement to increase the amount of the Building Loan, all upon the terms and provisions and subject to the conditions hereinafter set forth.


NOW, THEREFORE, in consideration of the agreements set forth in this Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:


A G R E E M E N T:


Section 1. Definitions.


(a) In Section 1.1 of the Existing Building Loan Agreement, the definitions of "Building Loan Amount" and "Capped Libor Rate" are hereby amended and restated as follows:


"BUILDING LOAN AMOUNT" shall mean TWO HUNDRED FIFTEEN
MILLION and NO/100 DOLLARS ($215,000,000.00).


"CAPPED LIBOR RATE" shall mean 4.5%.


(b) All capitalized terms not otherwise defined herein shall have the respective meanings set forth in the Existing Building Loan Agreement.


Section 2. Building Loan Amount. The Building Loan Amount is hereby increased to $215,000,000.00. Accordingly, (i) all references in Sections 2.1.1(a) and 2.1.3 of the Existing Building Loan Agreement to "TWO HUNDRED MILLION DOLLARS ($200,000,000)" are hereby deleted and replaced with TWO HUNDRED FIFTEEN MILLION and NO/100 DOLLARS ($215,000,000.00)" and (ii) all references in Section 2.9.2(o) of the Existing Building Loan Agreement to "$144,500,000" are hereby deleted and replaced with "$159,500,000".


Section 3. Bloomberg Reimbursables.


(a) As a result of additional work to be performed by Commercial Owner for Bloomberg pursuant to the Bloomberg Lease for which Bloomberg is obligated to reimburse Commercial Owner (such work, including, without limitation, any future work that Bloomberg requests be performed under the Bloomberg Lease and that Bloomberg is required to pay for, being herein referred to as the "Bloomberg Reimbursable Work" and the cost of such work being herein referred to as the "Bloomberg Reimbursable Cost"), the undisbursed proceeds of the Building Loan and Supplemental Loan are insufficient to pay the remaining Hard Costs and Soft Costs (which include the Bloomberg Reimbursable Cost). Borrower agrees that none of the Bloomberg Reimbursable Work shall form the basis of a requisition for Building Loan Proceeds or a disbursement of Cash Collateral and that Borrower shall pay for the Bloomberg Reimbursable Costs out of its own funds and seek reimbursement for the same directly from Bloomberg pursuant to the Bloomberg Lease.


(b) Borrower further agrees that, as part of Borrower's Requisition, Borrower shall provide Agent with a written statement, which shall be in the form annexed hereto as Schedule 1, of Borrower and Construction Manager stating whether the completed Application and Certificate for Payment (AIA Document G702) (an "Application for Payment") being submitted as part of Borrower's Requisition covers any Bloomberg Reimbursable Work, and, if so, the Construction Manager's and the Borrower's reasonable estimate of the amount of the Bloomberg Reimbursable Cost attributable to such work. Borrower shall pay for all Bloomberg Reimbursable Work directly and agrees that, as a condition to any subsequent Advance or disbursement of Cash Collateral, Borrower shall furnish to Agent lien waivers and payment receipts for the Bloomberg Reimbursable Work covered by an Application for Payment in the prior month. To the extent, if any, that Lender disburses proceeds of the Loan to pay for work which has been or should have been paid for by Bloomberg under the Bloomberg Lease, Borrower agrees to reconcile such discrepancy as part of the next Draw Request or to deposit with Agent the difference in the same manner as provided for with respect to a Shortfall pursuant to Section 2.1.11 of the Building Loan Agreement.


(c) Lender and Agent agree that it will not invoke the provisions of Section 2.1.11 of the Existing Building Loan Agreement or the other Loan Agreements, to the extent that any Shortfall is attributable to the Bloomberg Reimbursable Cost.


2


Section 4. Prefabrication Deposits. In connection with the second advance of Building Loan proceeds, Lender is advancing $12,100,000 to pay for Prefabrication Deposits, notwithstanding the limit set forth in Section 2.1.9(d) of the Building Loan Agreement. Lender shall not be obligated to waive such limit for any future Advances under the Building Loan Agreement.


Section 5. Interest Rate Protection Agreement.


(a) The first sentence of Section 4.1.14(a) of the Existing Building Loan Agreement is hereby amended (i) to delete the following at the beginning thereof, "Not later than six (6) months following the Closing Date or within ten (10) Business Days after request of Agent if prior to such time" and replace the same with the words "Within ten (10) Business Days after request of Agent if" and (ii) to delete the reference to "5.5%" where it appears in that first sentence and replace the same with "3%".


(b) Section 4.1.14(e) of the Existing Building Loan Agreement is hereby amended and restated to read as follows:


Borrower's failure to obtain an Interest Rate
Protection Agreement in accordance with subsection (a) of this
Section 4.1.14 (within ten (10) Business Days after requested
to do so by Agent pursuant thereto) or Borrower's failure to
comply with any or all of the other covenants set forth in
this Section 4.1.14 (within ten (10) Business Days after
notice thereof is given by Agent to Borrower) shall constitute
an Event of Default hereunder.


Section 6. Borrower's Representations and Warranties. Borrower represents, warrants and certifies to Lender that, as of the date hereof, Fifty-Five Million Five Hundred Thousand Dollars ($55,500,000) of Building Loan proceeds has been advanced pursuant to the Building Loan Agreement and remains outstanding under the Building Loan Note.


Section 7. Lien Law; Lien Law Affidavit.


(a) This Amendment and the Existing Building Loan Agreement, as modified hereby, are subject to the trust fund provisions of Section 13 of the Lien Law.


(b) In addition, a true statement under oath, verified by the Borrower, as required by Section 22 of the New York Lien Law is attached hereto as Attachment I and made a part hereof; and, effective on the date hereof , said Attachment I to this Amendment shall be deemed to be substituted for EXHIBIT F which is attached to the Existing Building Loan Agreement.


(c) Borrower shall cause the Title Company to deliver this Amendment and the Lien Law Statement attached hereto as Attachment I for filing in the County Clerk's Office of New York County when and as required by Section 22 of the Lien Law.


(d) Borrower is contemporaneously herewith causing the Title Insurer to deliver to the Agent an endorsement to the Title Insurance Policy indicating the filing of this Amendment without raising any title exception therefor.


3


Section 8. Authorization, Conflicts, Enforceability. The execution, delivery, and performance of this Amendment and the other documents which are being executed and delivered in connection herewith by the Borrower have been duly authorized, executed and delivered by Borrower and will not conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or provisions of any of Borrower's organizational documents or any agreement or instrument to which Borrower is a party or by which it is bound, or any order or decree applicable to Borrower, or result in the creation or imposition of any
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