Common use of Existing Loans Clause in Contracts

Existing Loans. Company acknowledges and confirms that each Existing Lender holds Existing Loans in the respective principal amounts outstanding as of the Effective Date set forth opposite its name on Schedule 2.1 annexed hereto. Company hereby represents, warrants, agrees, covenants and (1) reaffirms that it has no (and it permanently and irrevocably waives and releases Agents and Lenders from any, to the extent arising on or prior to the Effective Date) defense, set off, claim or counterclaim against any Agent or Lender in regard to its Obligations in respect of such Existing Loans and (2) reaffirms its obligation to pay such Loans in accordance with the terms and conditions of this Agreement and the other Loan Documents. Based on the foregoing, (A) Company and each Lender agree that (x) the Existing Tranche A Term Loans, (y) the Existing Tranche B Term Loans and (z) the Existing Revolving Loans, and any amounts owed (whether or not presently due and payable, and including all interest accrued to the Effective Date (which shall be payable on the next Interest Payment Date with respect to the Loans to which such interest relates)) by Company to Lenders thereunder or in respect thereof, shall, as of the Effective Date, be converted to, maintained as, and owed by Company under or in respect of Tranche A Term Loans, Tranche B Term Loans and Revolving Loans, respectively, hereunder. Amounts repaid or prepaid in respect of Tranche A Term Loans and Tranche B Term Loans may not be reborrowed. Amounts repaid or prepaid in respect of the foregoing Revolving Loans may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date.

Existing Loans. Company The Borrower acknowledges and confirms that each Existing Lender holds held Existing Loans in the respective principal amounts set forth in the Global Assignment Agreement outstanding as of immediately before the Effective Date Date. After giving effect to the Global Assignment Agreement, each Lender has Revolving Credit Loans and Term Loans in the respective principal amounts set forth opposite its name on Schedule SCHEDULE 2.1 annexed hereto. Company Borrower hereby represents, warrants, agrees, covenants and (1) reaffirms that it has no (and it permanently and irrevocably waives and releases Agents and Lenders from any, to the extent arising on or prior to the Effective Date) is not aware of any defense, set off, claim or counterclaim against any the Administrative Agent or any Lender in regard to its Obligations in respect of such Existing Loans and (2) reaffirms its obligation to pay such Existing Loans in accordance with the terms and conditions of this Agreement and the other Loan Financing Documents. Based on the foregoing, (A) Company Borrower and each Lender agree that (x) that, other than any Existing Loans to be repaid from the Existing Tranche A Term LoansNet Cash Proceeds to be received and applied in accordance with subsection 4.2(f), (y) the Existing Tranche B Term Loans and (z) the Existing Revolving Loans, and any amounts owed (whether or not presently due and payable, and including all interest and fees accrued to the Effective Date (which shall be payable on the next Interest Payment Date with respect to the Existing Loans to which such interest relates)) by Company Borrower to Existing Lenders thereunder or in respect thereofof the Existing Loans, shall, as of the Effective Date, be converted tocontinued as, maintained as, and owed by Company under or Borrower in respect of Tranche A Term Loans, Tranche B Term Loans and Revolving Loans, respectively, hereunder. Amounts repaid or prepaid in respect of Tranche A Term Loans and Tranche B Term Existing Revolving Credit Loans may not be reborrowedrepaid and reborrowed pursuant to Section 2.1(b) below to but excluding the Revolving Credit Commitment Termination Date. Amounts repaid or prepaid in respect of the foregoing Revolving Term Loans may not be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Datereborrowed.

Existing Loans. Company acknowledges and confirms that each Existing Lender holds Existing Tranche A Term Loans in the their respective principal amounts outstanding as of the Effective Date set forth opposite its name on Schedule 2.1 annexed heretoamounts. Company hereby represents, warrants, agrees, covenants and (1) reaffirms that it has no (and it permanently and irrevocably waives and releases Agents and Lenders from any, to the extent arising on or prior to the Effective Date) is not aware of any defense, set off, claim or counterclaim against any Agent or Existing Lender in regard to its Obligations in respect of such Existing Tranche A Term Loans and (2) reaffirms its obligation to pay repay such Tranche A Term Loans in accordance with the terms and conditions of this Agreement and the other Loan Documents. Based on the foregoing, (A) Company and each Lender agree that (x) the Existing Tranche A Term Loans, (y) the Existing Tranche B Term Loans and (z) the Existing Revolving Loans, and any amounts owed (whether or not presently due and payable, and including all interest and fees accrued to the Effective Date (which shall be payable on the next Interest Payment Date with respect to the Tranche A Term Loans to which such interest relates)) by Company to Existing Lenders thereunder or in respect thereofof the Tranche A Term Loans, shall, as of the Effective Date, be converted to, maintained as, and owed by Company under or in respect of Tranche A Term Loans, Tranche B Term Loans and Revolving Loans, respectively, hereunder. Amounts repaid or prepaid in respect of Tranche A Term Loans outstanding and Tranche B Term Loans confirmed under this subsection 2.1A(i) and subsequently repaid or prepaid may not be reborrowed. Amounts repaid or prepaid in respect of the foregoing Revolving Loans may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date.

Existing Loans. Company acknowledges a) In accordance with Section 2.10(c) of the Credit Agreement, the Administrative Agent hereby provide notice that (i) U.S. dollar-denominated syndicated loans being executed or amended at the time of this Amendment are being executed or amended to incorporate or adopt new benchmark interest rates to replace LIBO Screen Rate and confirms that each Existing Lender holds Existing Loans (ii) this Amendment was posted to the Lenders on the Platform on December 15, 2022, which date shall constitute the Notice Date. US-DOCS\137892217.5 b) On the Second Amendment Effective Date, the parties hereto acknowledge and agree any request for a new LIBOR Loan, or to continue an existing LIBOR Loan, shall be deemed to be a request for a new Loan bearing interest at (i) in the respective principal amounts case of Loans denominated in Dollars, the Adjusted Term SOFR, (ii) in the case of Loans denominated in Euros, the Adjusted Eurodollar Rate and (iii) in the case of Loans denominated in any Alternative Currency (other than Euros), the Daily Simple RFR. Notwithstanding anything to the contrary herein, all LIBOR Loans (as defined in the Credit Agreement) outstanding under the Credit Agreement as of the Effective Date set forth opposite its name on Schedule 2.1 annexed heretodate hereof (collectively, the “Existing LIBOR Loans”) may, in the Borrower’s sole discretion, continue to bear interest at the LIBOR Rate and remain outstanding under the Amended Credit Agreement as LIBOR Loans until the expiration of the current Interest Period applicable to such Existing LIBOR Loans (the “Existing Expiration Date”). Company hereby represents, warrants, agrees, covenants and Any such Existing LIBOR Loans shall continue to be governed by the relevant provisions of the Credit Agreement (1) reaffirms that it has no (and it permanently and irrevocably waives and releases Agents and Lenders from any, to the extent arising on or as in effect immediately prior to the Effective Date) defense, set off, claim or counterclaim against any Agent or Lender in regard to its Obligations in respect of such Existing Loans and (2) reaffirms its obligation to pay such Loans in accordance with the terms and conditions effectiveness of this Agreement and Amendment) applicable to LIBOR Loans until the other Loan Documents. Based on the foregoing, (A) Company and each Lender agree that earlier of (x) the Existing Tranche A Term repayment of such Loans, (y) the Existing Tranche B conversion of such Loans into Term SOFR Loans, Eurodollar Loans, RFR Loans and or ABR Loans pursuant to Section 2.6(a) of the Credit Agreement, or (z) the conversion of such Loans pursuant to the Specified Conversion (as defined below). c) In accordance with Section 2.6(a) of the Credit Agreement, the Borrower shall, no later than 12:00 p.m. (New York City time) (i) in the case of Loans denominated in Dollars, on the third Business Day preceding the Existing Revolving Expiration Date and (ii) in the case of Loans denominated in an Alternative Currency, on the fourth Business Day preceding the Existing Expiration Date, elect to convert in full the Existing Eurocurrency Loans to (i) in the case of Loans denominated in Dollars, either Term SOFR Loans or ABR Loans and (ii) in the case of Loans denominated in Euros, Eurodollar Rate Loans; provided that if the Borrower fails to give a timely notice requesting such conversion, then the Existing LIBOR Loans shall be automatically converted (i) in the case of Existing LIBOR Loans denominated in Dollars, in full to Term SOFR Loans with a one-month Interest Period effective as of the Existing Expiration Date, (ii) Existing LIBOR Loans denominated in Euros, in full to Eurodollar Rate Loans with a one-month Interest Period effective as of the Existing Expiration Date (the “Specified Conversion”) and (iii) Existing LIBOR Loans denominated in any Alternative Currency (other than Euros), in full to RFR Loans. d) For the avoidance of doubt, no borrowing or continuation of LIBOR Loans, and any amounts owed (whether or not presently due and payableno conversion of Loans to LIBOR Loans, and including all interest accrued to the Effective Date (which shall be payable on permitted from and after the next Interest Payment Date with respect to the Loans to which such interest relates)) by Company to Lenders thereunder or in respect thereof, shall, as of the Second Amendment Effective Date, be converted to, maintained as, and owed by Company under or in respect of Tranche A Term Loans, Tranche B Term Loans and Revolving Loans, respectively, hereunder. Amounts repaid or prepaid in respect of Tranche A Term Loans and Tranche B Term Loans may not be reborrowed. Amounts repaid or prepaid in respect of the foregoing Revolving Loans may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date.

Existing Loans. Company acknowledges and confirms that each -------------- Existing Lender holds Existing Loans in the respective principal amounts outstanding as of the Effective Date set forth opposite its name on Schedule 2.1 annexed hereto. Company hereby represents, warrants, agrees, ------------ covenants and (1) reaffirms that it has no (and it permanently and irrevocably waives and releases Agents and Lenders from any, to the extent arising on or prior to the Effective Date) defense, set off, claim or counterclaim against any Agent or Lender in regard to its Obligations in respect of such Existing Loans and (2) reaffirms its obligation to pay such Loans in accordance with the terms and conditions of this Agreement and the other Loan Documents. Based on the foregoing, (A) Company and each Lender agree that (x) the Existing Tranche A Term Acquisition Loans, (y) the Existing Tranche B Term Loans and (z) the Existing Revolving Loans, and any amounts owed (whether or not presently due and payable, and including all interest accrued to the Effective Date (which shall be payable on the next Interest Payment Date with respect to the Loans to which such interest relates)) by Company to Lenders thereunder or in respect thereof, shall, as of the Effective Date, be converted to, maintained as, and owed by Company under or in respect of Tranche A Term Acquisition Loans, Tranche B Term Loans and Revolving Loans, respectively, hereunder. Amounts repaid or prepaid in respect of Tranche A Term Loans and Tranche B Term Loans may not be reborrowed. Amounts repaid or prepaid in respect of the foregoing Acquisition Loans prior to the third anniversary of the Closing Date may be repaid and reborrowed through the third anniversary of the Closing Date and Revolving Loans may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date, respectively.

Existing Loans. The Company acknowledges and confirms that each Existing Lender holds it is indebted to the Banks on the outstanding principal balance of the Existing Loans in plus accrued and unpaid interest thereon. Substantially concurrently herewith, the respective principal amounts outstanding as of the Effective Date set forth opposite its name on Schedule 2.1 annexed hereto. Company hereby represents, warrants, agrees, covenants is executing and (1) reaffirms that it has no (and it permanently and irrevocably waives and releases Agents and Lenders from any, delivering to the extent arising on or prior to Banks the Effective Date) defense, set off, claim or counterclaim against any Agent or Lender in regard to its Obligations in respect of such Existing Loans Notes hereinafter identified and (2) reaffirms its obligation to pay such Loans in accordance with defined. Upon the terms execution and conditions delivery of this Agreement and the other Loan Documents. Based Notes, and satisfaction of the conditions precedent to effectiveness set forth in Article III hereof (the date agreed to by the Company and the Banks on which all such events have occurred is referred to herein as the "Effective Date"), the Existing Loans evidenced by the Existing Notes shall automatically, and without further action on the foregoingpart of the Banks or the Company, (A) Company become evidenced by the Revolving Credit Notes issued under this Agreement to the Banks and, to that extent, such Revolving Credit Notes are issued in renewal of, and each Lender agree that (x) evidence the same indebtedness formerly evidenced by, the Existing Tranche A Term LoansNotes, (y) as well as evidencing all additional Revolving Credit Loans made pursuant to this Agreement. All of the Existing Tranche B Term Loans and (z) shall, for all purposes of this Agreement, be treated as though they constituted Revolving Credit Loans under this Agreement in an amount equal to the aggregate unpaid principal balance of the Existing Loans outstanding on such date. If any accrued and unpaid interest and commitment fees are outstanding in respect of any of the Existing Loans as of the date that the Existing Loans become evidenced by the Revolving LoansCredit Notes, such accrued interest shall be evidenced by the Revolving Credit Notes and any amounts owed (whether or not presently shall be due and payable, and including all payable on the first interest accrued payment date applicable to the Effective Date (which Revolving Credit Notes and such accrued fees shall be payable on the next Interest Payment Date with respect to first date on which the Loans to which such interest relates)) by Company to Lenders thereunder or in respect thereof, shall, as of corresponding fees are due and payable under this Agreement. On the Effective Date, be converted to, maintained as, and owed by Company under or in respect of Tranche A Term Loans, Tranche B Term Loans and Revolving Loans, respectively, hereunder. Amounts repaid or prepaid in respect of Tranche A Term Loans and Tranche B Term Loans may not be reborrowed. Amounts repaid or prepaid in respect any commitment of the foregoing Revolving Loans may be repaid and reborrowed to but excluding Banks under the Revolving Loan Commitment Termination DateExisting Credit Agreement shall terminate.

Existing Loans. Company acknowledges (a) Certain of the Contributors are borrowers with respect to certain loans (collectively, the “Existing Loans”) made by the lenders (collectively, the “Lenders”) and confirms that each Existing Lender holds in the original principal amounts set forth on Exhibit I. The Existing Loans in are evidenced only by the respective principal amounts outstanding as documents listed on Schedule 2.8 (the “Existing Loan Documents”) and the other documents related to those Existing Loan Documents. (b) With respect to each Property at the Closing, the Partnership (or its designee or nominee) shall take title to such Property subject to the terms of the Effective Date set forth opposite Existing Loan encumbering such Property and, at its name option (but subject to the terms of the Tax Protection Agreement), either (A) assume such Existing Loan, (B) cause, entirely at the Partnership’s expense, such Existing Loan to be refinanced in connection with the Closing, or (C) repay such Existing Loans. The parties acknowledge and agree that the Partnership prefers to assume, not refinance, the Existing Loan encumbering the Yonkers Property, and will repay the Acklinis-Ackrik Debt (by making the Acklinis-Ackrik Debt Cash Payment) and certain of the Woodbridge Manchester Debt (by making the Woodbridge-Manchester Debt Cash Payment) at the Closing pursuant to Section 2.8(f). It shall be a condition of the Partnership’s obligations to close on Schedule 2.1 annexed hereto. Company hereby represents, warrants, agrees, covenants and (1) reaffirms that it has no (and it permanently and irrevocably waives and releases Agents and Lenders from anythe purchase of each Property that, to the extent arising that the Partnership assumes the Existing Loan with respect to any such Property at the Closing: (i) the outstanding balance of such Existing Loan at the Closing shall be in the amount as set forth in Exhibit I (taking into account payments and credits applied after the Effective Date as shall be set forth on an updated Exhibit I provided by the Contributors prior to Closing) and otherwise consistent with Exhibit I (in each case, subject to immaterial discrepancies due to unintended errors in the Contributors’ calculations); (ii) a consent agreement (and other documents and certificates required in connection with the ACTIVE/90358678.5 assumption of the Existing Loans), in a form customarily required by the applicable Lender and reasonably satisfactory to the applicable Contributor and the Partnership, is obtained from such Lender by the parties prior to the Closing pursuant to which such Lender (a) consents to the transfer of the applicable Property to the Partnership or to a wholly owned affiliate of the Partnership (and the change in management thereof) subject to the applicable Existing Loan, (b) represents that the Contributor identified as the borrower under such Loan on Exhibit I hereto is not then in default of its monetary obligations under the existing Loan Documents and, to such Lender’s knowledge, is not then in default in the performance of any of its other material covenants, agreements or obligations under any Existing Loan Document, (c) certifies to the outstanding balance and reserves for the applicable Existing Loan, and (d) approves New Guarantor as a replacement “guarantor” (a “guarantor” including an “indemnitor”) for all purposes from and after the Closing under the Existing Guaranty for such Loan and, except as otherwise provided in Section 2.8(c) below, releases the existing Guarantor (and all other partners and members of the Contributor of the applicable Property) from liability for any such prospective liability (collectively, the “Consents”); and (iii) any and all conditions to the applicable Lenders’ consent to the foregoing as set forth in the Consents and the responsibility of the Contributors to perform pursuant to this Agreement shall have been satisfied. Each Contributor and the Partnership agree to render reasonable assistance to the other in obtaining the foregoing Consents and in connection with the refinancing of any of the Existing Loans, and to keep one another informed of progress with respect to the same and to satisfy all conditions as set forth therein. Notwithstanding anything contained to the contrary in this Section 2.8(b) or elsewhere in this Agreement, if the Consents or any other documents executed in connection with the assumption of any Existing Loan are not obtainable from the Lender within one hundred five (105) days after the date of this Agreement or contain provisions materially adverse to the borrower’s rights or obligations thereunder that are not included in the Existing Loan Documents provided to the Partnership prior to the Effective Date, then (y) defensethe Partnership shall refinance such Existing Loan and (z) receipt of Consents as set forth in Section 5.6(i) and 5.7(e) shall not be a condition to Closing; provided that the Additional Woodbridge-Manchester Debt may be increased by up to $500,000 prior to Closing. The Contributors shall not cause or suffer the amount of the principal balance of the Woodbridge Notes or the Acklinis-Ackrik Debt outstanding as of the date hereof to be reduced or increased prior to Closing. (c) Subject to the terms of Section 2.8(b), set offthe Partnership (or its designee or nominee taking title to the applicable Property) shall, claim or counterclaim against any Agent or with respect to the Existing Loans that the Partnership assumes rather than refinances, assume all obligations of the Contributors first arising from and after the Closing Date under the Existing Loan Documents, as such Existing Loan Documents shall have been modified pursuant to the Consents, subject to the non-recourse and liability limitations contained therein. The Partnership (referred to herein from time to time as the “New Guarantor”) shall, with respect to the Existing Loans that the Partnership assumes rather than refinances, at the Closing execute and deliver to each Lender a replacement guaranty customarily required by such Lender in regard to its Obligations connection with a mortgage assumption (each, a “New Guaranty”) consistent in respect scope with the guaranty given by the existing guarantor(s) under such Existing Loan (each, an “Existing Guarantor”) in connection with the closing of such Existing Loans (each, an “Existing Guaranty”) with respect to obligations and liabilities under the applicable Existing Loan Documents that first arise on or after the Closing. The New Guaranty ACTIVE/90358678.5 shall include a release of the existing guarantor from obligations and liabilities under the Existing Loan Documents that first arise on or after the Closing and that are not attributable to acts or omissions of such Existing Guarantor or the applicable Contributor occurring prior to the Closing Date or be accompanied with such release(s) from the applicable Lender(s), but receipt of such a release shall not be a condition of the Closing. New Guarantor shall cooperate in good faith and timely provide such information as is reasonably required with respect to each New Guaranty. Subject to the provisions of Section 2.8(e) below, in no event shall the Partnership assume any liability under any document which is not listed on Schedule 2.8. If the Partnership assumes an Existing Loan and is unable to obtain a prospective release of an Existing Guarantor as described above, the Partnership, at Closing, must deliver an indemnity by the Partnership in favor of that guarantor with respect to any obligations or liability the guarantor has under the Existing Guaranty that are not attributable to acts or omissions of such Existing Guarantor or the applicable Contributor occurring prior to the Closing Date. (2d) reaffirms its Anything elsewhere to the contrary notwithstanding, the Property transfers by the Contributors to the Partnership shall be on an “all or nothing” basis. The Partnership shall have no right and the Contributors shall have no obligation to pay such Loans convey any single Property or any portion of a Property from the transactions contemplated hereby if not all of the Properties are being conveyed. (e) The Partnership shall be responsible for all out-of-pocket costs or charges, including, without limitation, prepayment penalties, defeasance costs, swap termination charges and any attorneys’ fees or service charges, payable to the Lenders (and/or swap counterparties) in accordance connection with the terms and conditions assumption, refinancing and/or repayment of this Agreement the Existing Loans pursuant to the Existing Loan Documents and the other Consents for the assumption or the attempted assumption of the Existing Loans, including, without limitation, any assumption fees payable under any of the Existing Loan Documents. Based on The Partnership shall also be responsible for all costs or charges, including, without limitation, any attorneys’ fees or service charges or rating agency fees or expenses, payable to any of the foregoing, (A) Company and each Lender agree that (x) new Lenders in connection with the refinancing or repayment or assumption or attempted assumption of the Existing Tranche A Term Loans, (y) Loans pursuant to the Existing Tranche B Term Loans Loan Documents. (f) The Partnership shall repay the Acklinis-Ackrik Debt (by making the Acklinis-Ackrik Debt Dash Payment) and (z) the Existing Revolving Loans, and any amounts owed (whether or not presently due and payable, and including all interest accrued to the Effective Date (which shall be payable on the next Interest Payment Date with respect to the Loans to which such interest relates)) by Company to Lenders thereunder or in respect thereof, shall, as certain of the Effective Date, be converted to, maintained as, and owed Woodbridge Manchester Debt (by Company under or in respect of Tranche A Term Loans, Tranche B Term Loans and Revolving Loans, respectively, hereunder. Amounts repaid or prepaid in respect of Tranche A Term Loans and Tranche B Term Loans may not be reborrowed. Amounts repaid or prepaid in respect of making the foregoing Revolving Loans may be repaid and reborrowed to but excluding Woodbridge-Manchester Debt Cash Payment) with cash at the Revolving Loan Commitment Termination DateClosing.