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Exhibit 10
CREDIT AGREEMENT dated as of June 22, 1998, among ONE PENN
PLAZA, LLC, as Borrower, the LENDERS party hereto, THE CHASE MANHATTAN BANK, as
Administrative Agent, CHASE SECURITIES, INC., as Arranger and the CO-AGENTS
party hereto.
The parties hereto agree as follows:
ARTICLE 1
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR" when used in reference to the Loan, refers to whether
the Loan is bearing interest at a rate determined by reference to the Alternate
Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Loan for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agreement" means this Credit Agreement, including the
Schedules and Exhibits hereto, as the same may be amended, supplemented or
otherwise modified from time to time.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
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"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means 1.25%
"Arranger" means Chase Securities, Inc., in its capacity as
arranger for the Lenders hereunder.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Assignment of Leases" means the Assignment of Leases and
Rents dated as of the date of this Agreement made by the Borrower in favor of
the Administrative Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"Available Commitment" means, as to any Lender on a particular
date during the Commitment Period, an amount equal to the difference between (a)
such Lender's Commitment and (b) the aggregate amount of all advances of such
Lender's Commitment made prior to such date.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means One Penn Plaza, LLC, a New York limited
liability company.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
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"Cash Collateral Agreement" means the Cash Collateral
Agreement to be entered into by the Borrower and the Administrative Agent, as
the same may be amended, supplemented or otherwise modified from time to time.
"Change in Control" means the occurrence of any of the
following: (i) the Guarantor ceases to own 100% of the membership interests in
the Borrower or (ii) Vornado Realty Trust or its successor by merger or
consolidation ceases to be the sole general partner in the Guarantor.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.07(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive of
any Governmental Authority made or issued after the date of this Agreement.
"Co-Agents" means the Persons designated on the signature
pages hereto as a "Co-Agent".
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make a portion of the Loan to the Borrower,
expressed as an amount representing the maximum aggregate amount of such
Lender's Credit Exposure hereunder, as such commitment may be reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Commitment is set
forth on Schedule 2.01 (which schedule is subject to change from time to time
after the Effective Date as and when additional Persons become Lenders and/or
pursuant to permitted assignments by Lenders), or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Commitment, as
applicable.
"Commitment Period" shall mean the period from and including
the Effective Date to and including August 31, 1998 or such earlier date as the
Commitment shall terminate as provided herein.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any
time, the outstanding principal amount of such Lender's portion of the Loan.
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"Debt Service Coverage Ratio" means, as of the last day of any
fiscal period of Borrower, the ratio of (a) Net Operating Income for the
applicable DSCR Period ending on such date to (b) all principal and interest
payments made during the applicable DSCR Period ending on such date. For
purposes of this definition, (i) "fiscal period of Borrower" means any fiscal
quarter ending on March 31, June 30, September 30 or December 31 and any fiscal
year ending on December 31 and (ii) any calculation of Debt Service Coverage
Ratio shall be calculated as of the last day of the fiscal period of Borrower
which immediately precedes the date of calculation.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Default Rate" shall have the meaning given to such term in
Section 2.05(b).
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States
of America.
"DSCR Period" means (i) for purposes of Section 2.02 hereof, a
period of the twelve consecutive calendar months immediately preceding the last
day of the applicable fiscal period of the Borrower and (ii) for purpose of
Section 6.06 hereof and the OP Guarantee, a period of the six consecutive
calendar months immediately preceding the last day of the applicable fiscal
period of the Borrower.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02) and the funding of the Initial Advance occurs.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Government Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual
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arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to the Loan or any portion
of the Loan, refers to whether such Loan is bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its gross or net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located
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and (c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.11(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or is attributable to such Foreign
Lender's failure or inability to comply with Section 2.09(e).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means, with respect to any Person, the
chief financial officer, principal accounting officer, treasurer or controller
of such Person.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Ground Leases" mean the collective reference to each
Mortgaged Lease described on Exhibit B to the Mortgage.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity
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of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposits in the ordinary course of business.
"Guarantor" means Vornado Realty L.P., a Delaware limited
partnership.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means one or more interest rate swap
agreements or other interest rate protection agreements reasonably satisfactory
to the Administrative Agent in an aggregate notional amount equal to outstanding
principal amount of the Loan between the Borrower and Chase or a financial
institution reasonably acceptable to the Administrative Agent which limits the
effective "all-in" interest expense of Borrower respecting the Loan at a rate
equal to 9.75% per annum for the period commencing on the Effective Date and
ending on December 31, 1999 and at a rate equal to 10.25% per annum during the
period thereafter.
"Improvements" shall have the meaning given to such term in
the Mortgage.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid (other than obligations upon
which interest charges may be incurred under contracts entered into in the
ordinary course of business), (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all Capital Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (j) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent
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such Person is liable therefor as a result of such Person's ownership interest
in or other relationship with such entity, except to the extent the terms of
such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Initial Advance" shall mean the initial advance of the Loan
in the principal amount of $93,200,000.
"Interest Payment Date" means the day in each calendar month
during the term of the Loan which numerically corresponds to the date which is
the first day of the first Interest Period; provided that (i) if any Interest
Payment Date would occur on a day other than a Business Day, such Interest
Payment Date shall be extended to the next succeeding Business Day unless such
next succeeding Business Day would fall in the next calendar month in which case
such Interest Payment Date shall be on the next preceding Business Day and (ii)
if any Interest Payment Date shall be the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the
following calendar month), then the immediately succeeding Interest Payment Date
shall be the last Business Day in the immediately succeeding calendar month. For
purposes of this Agreement, the period of time between any two consecutive
Interest Payment Dates during the term of this Agreement shall be deemed to be a
period of one month.
"Interest Period" means with respect to any Eurodollar Loan,
each one, two, three, or six month period during the term of this Agreement
relating to an available one, two, three or six month Adjusted LIBO Rate under
this Agreement, the first of which periods commences on the Effective Date and
each of which periods ends on the day numerically corresponding to the Effective
Date in the last calendar month of such Interest Period; provided, that (i) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (ii) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period and (iii) no Interest Period
shall extend beyond the Maturity Date. For purposes hereof, the date of a Loan
shall be the date on which such Loan is made.
"Leases" means all leases and other agreements (other than the
Ground Leases) of any portion of the Premises now or hereafter entered into,
including all renewals entered into in accordance with the terms thereof.
"Lenders" means the Person or Persons listed on Schedule 2.01
and any other Person that shall have become a party hereto pursuant to an
Assignment and
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Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Loan for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Loan for such Interest Period shall be the rate (rounded upwards, if
necessary, to the next 1/16 of 1%) at which dollar deposits of $5,000,000 and
for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan" means the loan in the aggregate principal amount of up
to $275,000,000 made by the Lenders to the Borrower pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower or of the Guarantor, which affects the ability of the
Borrower or the Guarantor to perform any of its obligations under this Agreement
or the other Transaction Documents, (b) the rights of or benefits available to
the Lenders under this Agreement or the other Transaction Documents or (c) the
value, use or operation of the Mortgaged Property.
"Maturity Date" means June 22, 2002.
"Mortgage" means the Mortgage and Mortgage Consolidation,
Modification and Extension Agreement dated as of the date of this Agreement made
by Borrower to Administrative Agent, as the same may be amended, supplemented or
otherwise modified from time to time, including, without limitation, pursuant to
Section 4.02(a)(iii).
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"Mortgaged Property" shall have the meaning given to such term
in the Mortgage.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Operating Income" means for any period, the excess of (a)
Operating Revenues for such period over (b) Operating Expenses for such period.
"Note" means the collective reference to each promissory note
that may be assigned to The Chase Manhattan Bank and thereafter severed into
separate notes to be acquired by each Lender and modified so that each note as
so acquired and modified shall be made by Borrower payable to the order of such
Lender (or, if requested by such Lender, to such Lender and its registered
assigns) in the form annexed hereto as Exhibit B, and any replacements and
substitutions thereof.
"OP Guarantee" means the Guarantee dated as of the date of
this Agreement made by the Guarantor in favor of the Administrative Agent for
the ratable benefit of the Lenders, as the same may be amended, supplemented or
otherwise modified from time to time.
Operating Expenses: For any period, all expenses incurred by
the Borrower for such period in connection with the ownership, operation,
maintenance and occupancy of the Premises as a Class A office building in New
York, New York, determined on the basis of sound cash basis accounting practices
consistently applied, including, without limitation, the following (but without
duplication of any item): (A) real estate taxes and assessments; (B) personal
property taxes; (C) sales taxes, to the extent applicable; (D) ground rent
payable under the Ground Leases; (E) charges of utilities and operating costs of
air conditioning and heating for the Improvements; (F) management fees due and
payable under any management contract but not less than the fees then being
charged by managers of similar office buildings in New York, New York; (G) wages
and salaries of employees (but not above the level of the on-site building
manager) actually engaged in the operation and management of the Premises, but
at least at prevailing wage rates in New York, New York, from time to time for
employees of the type or types in question, and including employers' social
security taxes and other taxes levied on or with respect to such wages or
salaries and insurance and pension benefits and the like; (H) premiums payable
under insurance policies (which, in the case of any policies covering multiple
properties, shall be allocated to the Premises pro rata in proportion to the
insured value of the properties covered by such policies); (I) accounting, audit
and legal fees reasonably incurred by the Borrower in connection with the
operation and management of the Premises and compliance with the terms of the
Transaction Documents; (J) repair and maintenance expenses; (K) expenses for
grounds; (L) security costs; (M) costs incurred under cleaning and other service
contracts; (N) costs incurred in providing overtime services to tenants pursuant
to Leases; (O) leasing commissions; and (P) costs of tenant improvements. The
following shall be excluded from the definition of Operating Expenses: (1) any
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capital expenditures (other than as provided in (O) and (P) above); (2) foreign,
United States federal, state and local income taxes, franchise taxes or other
taxes based on income; (3) depreciation, amortization and any other non-cash
deductions of the Borrower for income tax or financial reporting purposes; (4)
payments made in respect of principal of or interest on or charges related to
the Loan or any other Indebtedness of the Borrower, other than Indebtedness
permitted pursuant to the terms of Section 6.01 hereof; (5) except to the extent
expressly included above, nonrecurring and other extraordinary items not
expected to be incurred on an annual basis; and (6) amounts funded from
insurance or condemnation proceeds which are applied to repair or restoration of
the Premises.
Operating Revenues: For any period, all gross income, revenues
and consideration, of whatever form or nature, received by or paid to or for the
account or benefit of the Borrower, determined on the basis of sound cash basis
accounting practices applied on a consistent basis, including, without
limitation, the following (but without duplication of any item) paid by or on
behalf of lessees, sublessees and sub-sublessees under the Leases to or for the
account or benefit of the Borrower: (A) gross fixed, minimum and guaranteed
rents; (B) overage, additional, participation, and similar rents; (C) amounts
paid pursuant to escalation provisions or on account of maintenance or service
charges, taxes, assessments, utilities, air conditioning and heating (including
amounts paid on account of overtime services), and other administrative,
management, operating and maintenance expenses for the Premises; (D) late
charges and interest payable under Leases; (E) amounts attributable to the
subleasing of space or assignment of Leases; and (F) payments received as
consideration for cancellation or termination of Leases, amortized over the
remaining term of such Leases as if such Leases had not been cancelled or
terminated. In addition, Operating Revenues shall include amounts received by or
for the account or benefit of the Borrower on account of any of the following:
(1) rents and receipts from licenses, concessions, vending machines and similar
items; (2) parking fees and rentals; and (3) other fees, charges or payments not
denominated as rental of office, retail, storage, parking or other space in the
Premises. Notwithstanding anything included within the above definition of
"Operating Revenues," there shall be excluded from Operating Revenues amounts
received on account of any of the following: (w) any security or other deposits
of tenants unless and until they are actually applied to rents owed; (x)
payments received as consideration in whole or in part for the modification,
extension or renewal of Leases or on account of any default by any lessees,
sublessees and sub-sublessees under Leases; (y) any condemnation or insurance
proceeds (other than rent or business interruption insurance proceeds or any
award for a temporary taking); and (z) any extraordinary or nonrecurring items
of revenue.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
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"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" shall have the meaning given to such
term in the Mortgage.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Premises" shall have the meaning given to such term in the
Mortgage.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Rents" shall have the meaning given to such term in the
Mortgage.
"Required Lenders" means, at any time, Lenders having Credit
Exposures representing more than 66 2/3% of the sum of the total Credit
Exposures at such time or, if no Credit Exposure is outstanding, Lenders having
Commitments representing more than 66 2/3% of the sum of the total Commitments.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loan shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time
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to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Title Company" means the collective reference to Xxxxxxx
Title Insurance Company, Fidelity National Title Insurance Company, Old Republic
Title Insurance Company and First American Title Insurance Company, as
co-insurers.
"Transaction" means the execution, delivery and performance by
the Borrower of this Agreement and the other Transaction Documents and the
borrowing of the Loan.
"Transaction Documents" means this Agreement, the Mortgage,
the Assignment of Leases, the Cash Collateral Agreement, the OP Guarantee and
the other documents or instruments executed or delivered by the Borrower, the
Guarantor or any other Person in connection with the Transaction.
"Type" when used in reference to any Loan, refers to whether
the rate of interest on such Loan, is determined by reference to the Adjusted
LIBO Rate or the Alternate Base Rate.
"Vornado Realty Trust" means Vornado Realty Trust, a Maryland
real estate investment trust.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections
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of, and Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Loan
SECTION 2.01. Commitments; Procedure for Borrowing. (a)
Subject to the terms and conditions set forth herein, each Lender agrees to make
advances of a portion of the Loan to the Borrower from time to time during the
Commitment Period up to the amount of its respective Commitment. The Loan shall
be made in not more than five advances from the Lenders, but only during the
Commitment Period. The Initial Advance shall be made upon satisfaction of all
conditions set forth in Section 4.01 and the balance of the proceeds of the Loan
shall be disbursed to the Borrower upon satisfaction of all conditions set forth
in Section 4.02.
(b) The Borrower may borrow under the Commitments during the
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent notice, which notice shall be irrevocable with respect to
Eurodollar Loans and which notice must be received by the Administrative Agent
prior to 12:00 Noon, New York City time, (x) with respect to Eurodollar Loans,
three Business Days prior to the requested borrowing date or (y) with respect to
ABR Loans, one Business Day prior to the requested borrowing date, in each case
specifying (i) the amount and Type of the requested Loan, (ii) the requested
borrowing date and (iii) with respect to Eurodollar Loans, the length of the
initial Interest Period therefor. Each borrowing under the Commitments shall be
in an amount not less than $5,000,000 and in a whole multiple of $100,000. Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Lender thereof. Each Lender will make the amount of its pro
rata share of each borrowing
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available to the Administrative Agent for the account of the Borrower, or as
otherwise directed by Borrower, prior to 12:00 Noon, New York City time, on the
borrowing date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
SECTION 2.02. Repayment of Loan; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender consecutive monthly installments in the amount of
$1,000,000 each, in reduction of the principal balance of the Loan, commencing
on the third anniversary of the Effective Date, and on each Interest Payment
Date thereafter through and including the Interest Payment Date immediately
preceding the Maturity Date; provided, however, that, if on any Interest Payment
Date on which an installment of principal is due (i) the Debt Service Coverage
Ratio equals or exceeds 1.3 to 1, as determined by the Administrative Agent and
(B) no Event of Default shall have occurred and be continuing, then the
Administrative Agent, may, in its sole discretion, deposit the installment of
principal paid by the Borrower pursuant to this Section 2.02(a) into a cash
collateral account established pursuant to the Cash Collateral Agreement to be
held by the Administrative Agent as security for the Loan.
(b) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender on the Maturity Date the
then unpaid principal amount of the Loan together with all interest accrued and
unpaid and all other sums then owing hereunder and under any other Transaction
Document.
(c) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from the portion of the Loan made by such Lender,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(d) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of the portion of the Loan made by each Lender
hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender's share thereof.
(e) The entries made in the accounts maintained pursuant to
paragraph (c) or (d) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loan in accordance with the terms of this Agreement.
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(f) The Borrower shall, at the request of the Administrative
Agent, prepare, execute and deliver to each Lender a Note payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns).
SECTION 2.03. Prepayment of Loan. (a) The Borrower shall not
have any right to prepay the Loan prior to the first anniversary of the
Effective Date. From and after the first anniversary of the Effective Date, the
Borrower shall have the right at any time and from time to time to prepay the
Loan in whole or in part, subject to prior notice in accordance with paragraph
(b) of this Section.
(b) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of the Loan or portion thereof to be
prepaid. Promptly following receipt of any such notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of the
Loan shall be in an aggregate amount that is not less than $5,000,000 and is a
multiple of $500,000. Each prepayment of the Loan shall be applied ratably among
the Lenders but otherwise in the manner and proportion as determined by the
Administrative Agent in its sole discretion. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.05 and any payments
required by Section 2.08. Amounts repaid pursuant to this Section may not be
reborrowed and shall be applied to installments of principal of the Loan in the
inverse order of their scheduled maturities.
SECTION 2.04. Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account and for the account of each Lender,
fees payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent. All such fees shall be paid on the dates
due, in immediately available funds.
SECTION 2.05. Interest. (a) From and including the first day
of the first Interest Period to, but not including, the last day of the last
Interest Period during the term of this Agreement, the entire principal balance
of the Loan shall, except, as specifically set forth in this Agreement to the
contrary, bear interest at one of the available Adjusted LIBO Rates plus the
Applicable Rate. The available Adjusted LIBO Rates shall consist of a one-month
Adjusted LIBO Rate, a two-month Adjusted LIBO Rate, a three-month Adjusted LIBO
Rate and a six-month Adjusted LIBO Rate. The Borrower shall have the right to
select the applicable available Adjusted LIBO Rate to be added to the Applicable
Rate to determine the interest rate applicable to Eurodollar Loans, provided
such selection is made in writing to the Administrative Agent at least three (3)
Business Days prior to the first day of the Interest Period to which such
selection is to apply. In the event no such selection is made within such three
(3) Business Day period, the Borrower shall be deemed to have irrevocably
selected a one-month Adjusted LIBO Rate.
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(b) Notwithstanding the foregoing, if any principal of or
interest on the Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due (after expiration of any grace period), whether
at stated maturity, upon acceleration or otherwise, such overdue amount shall
bear interest, after as well as before judgment, at a rate per annum (the
"Default Rate") equal to (i) in the case of overdue principal, 4% plus the rate
otherwise applicable thereto or (ii) in the case of any other amount, 4% plus
the Alternate Base Rate.
(c) Accrued interest on the Loan shall be payable in arrears
on each Interest Payment Date and on the Maturity Date; provided that (i)
interest accrued pursuant to paragraph (b) of this Section shall be payable on
demand and (ii) in the event of any repayment or prepayment of the Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment.
(d) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
(e) Notwithstanding anything to the contrary contained herein,
at all times that interest is not accruing at an available Adjusted LIBO Rate
plus the Applicable Rate pursuant to the provisions of Section 2.05(a), interest
shall accrue on the entire principal balance of the Loan at the Alternate Base
Rate, except that (i) from and after the Maturity Date or sooner acceleration of
the Loan, the entire principal balance of the Loan shall bear interest at the
Default Rate and (ii) interest may accrue at the Alternate Base Rate on a
portion of the Loan which is initially made as an ABR Loan pursuant to Section
2.01(b) hereof.
(f) The Borrower shall have the option to select up to, but
not in excess of, three (3) Adjusted LIBO Rates to take effect on any given
Interest Payment Date. The Borrower shall make such election by written notice
given to the Administrative Agent at least four (4) Business Days prior to each
Interest Payment Date, which shall be the last day of a previously selected
Adjusted LIBO Rate period, in which notice the Borrower shall specify the
Adjusted LIBO Rates so selected by the Borrower and the respective portions of
the principal balance of the Loan to which such Adjusted LIBO Rates are to
respectively pertain, it being agreed that:
(i) the minimum portion of the principal balance of the Loan
to which any such Adjusted LIBO Rate may pertain shall be an amount
sufficient to give each Lender at least a $500,000.00 share of each
portion of the
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principal balance of the Loan bearing interest at a particular Adjusted
LIBO Rate;
(ii) each such Adjusted LIBO Rate so selected by the Borrower
shall be applicable to the portion of the principal balance of the Loan
to which it pertains from and including the first day of the applicable
Interest Period to, but not including, the last day of the Interest
Period applicable to such Adjusted LIBO Rate; and
(iii) the Borrower shall not have the right to exercise its
option pursuant to this provision as of any given Interest Payment Date
if the effect thereof would be to cause more than three (3) different
Adjusted LIBO Rate periods to be in effect with respect to the
principal balance of the Loan at any given time during the term of this
Agreement.
SECTION 2.06. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Loan:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Required Lenders of
making or maintaining its (or their) portion of the Loan for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, such portion or
portions of the Loan shall bear interest at the Alternate Base Rate.
SECTION 2.07. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loan made by
such Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make
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any such Loan) or to increase the cost to such Lender to reduce the amount of
any sum received or receivable by such Lender (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender such additional amount or
amounts as such Lender shall determine in good faith to be sufficient to
compensate such Lender, for such additional costs incurred or reduction
suffered.
(b) If any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on any Lender's capital or
on the capital of such Lender's holding company, if any, as a consequence of
this Agreement or the Loan made by such Lender to a level below that which such
Lender or such Lender's holding company could have achieved but for such Change
in Law (taking into consideration such Lender's and the policies of such
Lender's holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Lender, such additional amount or amounts as
will compensate such Lender or such Lender's holding company for any such
reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender, the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than six months prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.08. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the failure to borrow or prepay any Eurodollar Loan on the date
specified in any notice delivered pursuant to this Agreement, (c) the assignment
of any Eurodollar Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section
2.11, then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. Such loss, cost or expense
shall be deemed to include an amount equal to the excess, if any, of the net
present value (discounted at the rate that such Lender would bid on such amount
for a deposit of comparable period and amount in the interbank eurodollar
market) of (i) the amount of interest that would have accrued on the amount so
prepaid, assigned or not so borrowed for the period from the date of such
prepayment, assignment or of such failure to borrow to the last day of such
Interest
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Period (or, in the case of a failure to borrow, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loan provided for herein (excluding, however, the
Applicable Margin included therein, if any), over (ii) the amount of interest
(as reasonably determined by such Lender) that such Lender would bid on such
amount in the interbank eurodollar market by placing such amount on deposit for
a comparable period with leading banks in the interbank eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate upon receipt
thereof.
SECTION 2.09. Taxes. (a) Any and all payments by or an account
of any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and
each Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto. A certificate as to the amount of
such payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative
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Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
SECTION 2.10. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees or under Section 2.07, 2.08 or
2.09, or otherwise) prior to 12:00 noon, New York City time, on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, except that payments pursuant to Sections 2.07, 2.08, 2.09
and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first, to
pay interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, to pay principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on its respective portion of the Loan resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Loan
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Loan of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest on
their respective portion of the Loan; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a
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participation in the Loan to any assignee or participant, other than to the
Borrower or any Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the Federal Funds
Effective Rate.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.10(d), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Section until all such
unsatisfied obligations are fully paid.
SECTION 2.11. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.07, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.09, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its portion of the Loan hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.07 or 2.09, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.07, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.09,
or if any Lender defaults in its obligation to fund its share of the Loan
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance
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with and subject to the restrictions contained in Section 9.04), all its
interests, rights and obligations under this Agreement to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, if such assignee is not already a Lender, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its share of the Loan, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.07 or payments required
to be made pursuant to Section 2.09, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement and the other
Transaction Documents and to carry on its business as now conducted and as
proposed to be conducted and, except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, and (ii) is qualified to do business in, and is in good standing
in, New York and every other jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transaction
is within the Borrower's powers and has been duly authorized by all necessary
action. This Agreement and the other Transaction Documents have been duly
executed and delivered by the Borrower and constitute legal, valid and binding
obligations of the Borrower, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transaction (a) does not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been
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obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the organizational documents of the Borrower or
any order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon the
Borrower or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower (other than the Liens for
the benefit of the Lenders pursuant to the Transaction Documents).
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Borrower and the Guarantor have heretofore furnished to the Lenders
their consolidated balance sheets and statements of income, and cash flows for
the period commencing on February 9, 1998 through March 31, 1998, certified by
their Financial Officers. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Borrower and the Guarantor as of such dates and for such period in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) Since March 31, 1998, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower or the Guarantor, individually or taken as a whole.
SECTION 3.05. Properties. The Borrower has good and valid
title to the leasehold estate in the Premises, except for the Permitted
Encumbrances and the Leases, and has good title to, or valid leasehold interests
in, all other property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
SECTION 3.06. Litigation and Environmental Matters. (a) Except
for the Disclosed Matters, there are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or the
Guarantor (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect or (ii)
that involve this Agreement or the Transaction or (iii) that involve the
Mortgaged Property that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
(b) Except for the Disclosed Matters, the Borrower (i) has
complied in all material respects with all Environmental Laws or has obtained,
maintained or complied in all material respects with any permit, license or
other approval required under any Environmental Law, (ii) has not become subject
to any Environmental Liability which could reasonably be expected, individually
or in the aggregate, to
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result in a Material Adverse Effect, (iii) has not received notice of any claim
with respect to any Environmental Liability which could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect or (iv)
has no knowledge of any basis for any Environmental Liability which could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(c) As of the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and the Guarantor is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, does not
result in a Material Adverse Effect. No material Default has occurred and is
continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
the Borrower nor the Guarantor is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and the Guarantor
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Affiliate, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so does not result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan, and the present value
of all accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of all such underfunded
Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
it or
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any of its Affiliates is subject, and all other matters known to it, that,
individually or in the aggregate, will result in a Material Adverse Effect. None
of the reports, financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not materially misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 3.12. Year 2000. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the Borrower's
computer systems and (ii) equipment used in the operation of the Improvements
containing embedded microchips (including systems and equipment supplied by
others or with which Borrower's systems interface) and the testing of all such
systems and equipment, as so reprogrammed, will be completed by January 1, 1999.
The cost to the Borrower of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Borrower (including, without
limitation, reprogramming errors and the failure of others' systems or
equipment) will not result in a Default or a Material Adverse Effect.
SECTION 3.13. Ground Leases. The Borrower has not received any
notice of default under any Ground Lease.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make the Initial Advance of the Loan hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received:
(i) Either (A) a counterpart of this Agreement and the other
Transaction Documents, signed on behalf of each party hereto and
thereto or (B) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature
page of this Agreement or such Transaction Documents) that each party
herein or therein has signed a counterpart of this Agreement or such
Transaction Documents.
(ii) A favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of
Proskauer Rose LLP, counsel
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for the Borrower and the Guarantor, in a form satisfactory to the
Administrative Agent, and covering such other matters relating to the
Borrower and the Guarantor, this Agreement, the other Transaction
Documents or the Transaction as the Administrative Agent shall
reasonably request. The Borrower hereby requests such counsel to
deliver such opinion.
(iii) Such documents and certificates as the Administrative
Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Borrower and the
Guarantor, the authorization of the Transaction and any other legal
matters relating to the Borrower and the Guarantor, this Agreement, the
other Transaction Documents or the Transaction, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(iv) All fees and other amounts due and payable to the
Administrative Agent and the Lenders on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including, without limitation, attorneys' fees
and expenses) required to be reimbursed or paid by the Borrower
hereunder or under any other agreement between the Administrative Agent
and the Borrower.
(v) A mortgagee's policy of title insurance or satisfactory
evidence of Title Company's unconditional obligation to issue such a
policy, dated the Effective Date, with co-insurance and reinsurance
agreements acceptable to the Administrative Agent (the "Title Insurance
Policy"). Such Title Insurance Policy shall (i) be in the amount of the
Loan; (ii) be issued at ordinary rates; (iii) insure the Administrative
Agent that the Mortgage creates a valid Lien on the Mortgaged Property,
free and clear of all defects and encumbrances, except for the
Permitted Encumbrances; (iv) be in the form of policies providing the
Agent with the broadest coverage that is then offered by Title Company
to mortgagees of properties located in the City of New York and State
of New York and that is otherwise satisfactory to the Administrative
Agent; (v) provide full coverage against mechanics' liens and against
survey exceptions not specified as Permitted Encumbrances; and (vi)
contain such other endorsements and affirmative coverage as the
Administrative Agent may request. The Administrative Agent shall be
furnished with copies of all documents that appear as exceptions in the
Title Insurance Policy and shall receive evidence satisfactory to the
Administrative Agent that all premiums in respect of such Title
Insurance Policy have been paid.
(vi) A survey of the Premises (current to within 60 days of
the Effective Date), certified to the Administrative Agent and the
Lenders by an independent professional licensed land surveyor
satisfactory to the Administrative Agent, which survey shall be made in
accordance with the Minimum Standard Detail Requirements for Land Title
Surveys jointly established and adopted by the American Title
Association and the American
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Congress on Surveying and Mapping in 1988. Without limiting the
generality of the foregoing, there shall be surveyed and shown on such
survey the following: (i) the locations of all buildings and other
structures, if any, on the Premises and the established building
setback lines; (ii) the lines and the width of streets abutting the
Premises; (iii) all access and other easements appurtenant to or
necessary to the use of the Premises; (iv) all roadways, paths,
driveways, easements, encroachments and overhanging projections and
similar encumbrances affecting the Premises, whether recorded, apparent
from a physical inspection of the Premises or otherwise known to the
surveyor; (v) any party walls with structures on adjoining property any
encroachments on any adjoining property by the building structures and
improvements on the Premises; and (vi) if the Premises is described by
reference to a filed map, a legend relating the survey to such map.
(vii) Policies or certificates of insurance required by the
Mortgage and any of the other Transaction Documents, accompanied by
evidence of the payment of the premiums for such policies, with
mortgagee loss payable endorsements naming the Administrative Agent and
the Lenders as loss payees and additional insureds and confirmation by
the Administrative Agent's insurance consultant that the insurance in
place complies with all requirements of the Mortgage.
(viii) A Phase I environmental assessment, a building
condition report and an asbestos maintenance and operation plan with
respect to the Premises, each in form and substance reasonably
satisfactory to the Administrative Agent in its sole discretion.
(ix) The results of a recent search by a Person satisfactory
to the Administrative Agent, of the Uniform Commercial Code, judgment
and tax lien filings which may have been filed with respect to personal
property of the Borrower or the Guarantor.
(x) An appraisal which complies in all respects with the
standards for real estate approvals established pursuant to the
Financial Institutions Reform and Enforcement Act of 1989 dated within
60 days prior to Effective Date which shall indicate a value for the
Mortgaged Property of not less than $400,000,000.
(xi) (A) Tenant estoppel certificates in form and substance
satisfactory to the Administrative Agent duly executed by tenants under
Leases as set forth on Schedule 4.01A hereto, (B) ground lessor
estoppel certificates in form and substance satisfactory to the
Administrative Agent duly executed by the ground lessor under each
Ground Lease and (C) subordination, non-disturbance and attornment
agreements in form and substance satisfactory to the Administrative
Agent duly executed by tenants under Leases as set forth on Schedule
4.01B
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hereto or, if such agreements are not delivered, the Title Company does
not take exception for such Leases on Schedule B to the Title Insurance
Policy.
(xii) Copies of all existing contracts providing for the
management, maintenance, operation or leasing of the Premises, together
with, in each case, such collateral assignments as the Administrative
Agent may require.
(b) No circumstances shall exist which would constitute a
material Default under this Agreement or any other Transaction Document.
(c) All representations and warranties made by Borrower and
the Guarantor in this Agreement and each other Transaction Document are true and
correct in all material respects.
(d) All other conditions of the Administrative Agent for the
funding of the Loan shall have been met to the satisfaction of the
Administrative Agent.
The Effective Date shall be deemed to have occurred upon the
full execution and delivery of the Transaction Documents and the funding by the
Lenders of the Loan.
SECTION 4.02. Subsequent Advances. The obligations of the
Lenders to make advances of all or any portion of the balance of the Loan
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received:
(i) A continuation or endorsement of the Title Insurance
Policy, which continuation or endorsement shall state that since the
disbursement of the Initial Advance there have been no changes in the
state of title to the Premises and that there are no additional survey
exceptions not previously approved by the Lender and shall increase the
amount of the Title Insurance Policy by an amount equal to all or the
portion of the balance of the Loan being advanced.
(ii) If requested by the Administrative Agent, evidence that
all past and current taxes and assessments then due which are
applicable to the Premises have been paid prior to the same becoming
delinquent.
(iii) Notes and mortgages in the amount of the advance (which
may be assigned to Administrative Agent as provided below), and an
amendment and consolidation of the Mortgage which shall increase the
principal amount of the indebtedness secured thereby by the amount of
the advance.
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(iv) Evidence satisfactory to the Administrative Agent that
all premiums in respect of the increase to the amount of insurance
provided by the Title Insurance Policy, and the mortgage recording tax,
have been paid.
(v) All fees and other amounts due and payable to the
Administrative Agent and the Lenders on or prior to the date of such
advance, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses (including, without limitation, attorneys'
fees and expenses) required to be reimbursed or paid by the Borrower
hereunder or under any other agreement between the Administrative Agent
and the Borrower.
(b) No circumstance shall exist which would constitute a
material Default under this Agreement or any other Transaction Document.
(c) All representations and warranties made by Borrower and
the Guarantor in this Agreement and each other Transaction Document are true and
correct in all material respects.
(d) The Improvements shall not have been materially damaged by
fire or other casualty unless there shall have been received by the
Administrative Agent, or a person approved by the Administrative Agent,
insurance proceeds sufficient in the judgment of the Administrative Agent, to
effect satisfactory restoration of the Improvements.
(e) All other conditions of the Administrative Agent for the
funding of the Loan shall have been met to the satisfaction of the
Administrative Agent.
The Administrative Agent agrees to cooperate with the Borrower in
accepting mortgages by assignment and in executing necessary documentation in
connection therewith, provided, that all such mortgages and documentation shall
be satisfactory to the Administrative Agent.
ARTICLE V
Affirmative Covenants
Until the principal of and interest on the Loan and all fees
and other sums payable hereunder or under any other Transaction Document shall
have been paid in full, the Borrower covenants and agrees with the Lenders that:
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SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent, with additional copies
thereof for each Lender, the following:
(a) Within 90 days after the end of each fiscal year of the
Borrower, the Borrower shall furnish (i) the Borrower's and the
Guarantor's audited consolidated balance sheets and related statements
of operations, partnership accounts and cash flows as of the end of and
for such year, reported on by an independent public accountant of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) and (ii) financial statements for such
year containing a fully itemized statement of profit and loss and of
surplus and a balance sheet covering the operation of the Mortgaged
Property, setting forth in each case in comparative form the figures
for the previous fiscal year to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Affiliates on a consolidated basis, and the Mortgaged
Property, as applicable, in accordance with GAAP consistently applied.
(b) Within 45 days after the end of each calendar quarter of
each fiscal year of the Borrower, the Borrower shall furnish (i) the
Borrower's and the Guarantor's unaudited consolidated balance sheets
and related statements of operations, partnership accounts and cash
flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, and (ii) a financial statement for such
calendar quarter containing a fully itemized statement of profit and
loss and of surplus and a balance sheet covering the operation of the
Mortgaged Property, set forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) each previous fiscal year,
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and is consolidated Affiliates on
a consolidated basis, and the Mortgaged Property, as applicable, in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes.
(c) Concurrently with each delivery of financial statements
under clause (b) above, the Borrower shall furnish a certificate of a
Financial Officer of the Borrower (i) certifying to the best of such
Financial Officer's actual knowledge as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof
and any action or proposed to be taken with respect thereto, (ii)
certifying that the financial statements delivered under clause (b)
above are true and correct in all material respects, (iii) certifying,
with a reasonably detailed calculation annexed, the Debt Service
Coverage Ratio for each calendar quarter to which such financial
statements relate, and (iv) stating whether any change in GAAP or in
the application thereof has occurred since the date of the audited
financial statements referred to in Section
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3.04 and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate.
(d) On or before December 15 of each calendar year commencing
on December 15, 1998, the Borrower shall furnish an annual operating
budget in respect of the Mortgaged Property for the ensuing calendar
year (each an "Annual Operating Budget"). Each Annual Operating Budget
shall (a) be consistent with an operating budget for a Class A office
building in New York, New York and (b) present a reasonably full and
complete representation of all costs, expenses and fees which the
Borrower, after diligent inquiry and analysis by the Borrower, expects
to pay or to become obligated to pay in connection with capital
expenditures, the construction of tenant improvements, demolition work,
leasing costs, alterations, operating expenses, interest and
amortization on the Loan, and all other reasonably projected costs and
expenses in connection with the Mortgaged Property. The Borrower shall
operate the Mortgaged Property in conformity with each Annual Operating
Budget (subject to reasonable modifications thereto if required) in all
material respects, and shall from time to time, promptly following any
request therefor by the Administrative Agent, furnish to the
Administrative Agent reasonable evidence of material compliance
therewith.
(e) Within 45 days after the end of each calendar quarter, the
Borrower shall furnish a rent roll, in form and detail satisfactory to
the Administrative Agent, and a leasing status report advising the
Administrative Agent of the status of all prospective leasing at the
Mortgaged Property, certified as true and complete by a Financial
Officer of the Borrower.
(f) Within 30 days following each request therefor, the
Borrower shall furnish such other information regarding the operations,
business affairs and financial condition of the Borrower or the
Guarantor, or evidencing compliance with the terms of this Agreement
and the other Transaction Documents, as the Administrative Agent or any
Lender may reasonably request, certified as being true and complete in
all material respects by a Financial Officer of the Borrower.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent (with copies to the Administrative Agent for
each Lender) prompt written notice of the following:
(a) the occurrence of any material Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, would result in a Material Adverse Effect;
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(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, would result in
liability of the Borrower and its Affiliates in an aggregate amount
exceeding $500,000; and
(d) any other development that results in a Material Adverse
Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower
will, and will cause the Guarantor to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect their legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of their business.
SECTION 5.04. Payment of Obligations. The Borrower will pay
its obligations, including Taxes, before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or the Guarantor has set
aside on its books adequate reserves with respect thereto in accordance with
GAAP and (c) the failure to make payment pending such contest will not result in
a Material Adverse Effect; provided, however, that the Borrower will pay real
estate taxes and assessments, water and sewer rents and other governmental
impositions relating to the Mortgaged Property in accordance with the provisions
of the Mortgage.
SECTION 5.05. Books and Records; Inspection Rights. The
Borrower will, and will cause the Guarantor to, keep and maintain, on a fiscal
year basis in accordance with GAAP, consistently applied, proper and accurate
books of record and account in which full, true and correct entries are made of
all dealings and transactions in relation to its business and activities. The
Borrower will, and will cause the Guarantor to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.
SECTION 5.06. Compliance with Laws. The Borrower will comply
with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect; provided, however, that the Borrower will comply with
all material laws, rules, regulations and orders of any Governmental Authority,
including, without limitation, Environmental Laws, applicable to the Mortgaged
Property in accordance with the provisions of the Mortgage.
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SECTION 5.07. Use of Proceeds. The proceeds of the Loan will
be used only to refinance the existing indebtedness secured by the Mortgaged
Property, to acquire mortgages which will become secured by the Mortgaged
Property and to reduce the Guarantor's line of credit, and no part of such
proceeds will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations G, U and X.
SECTION 5.08. Further Assurances. The Borrower agrees, at its
expense, that at any time it will, and will cause the Guarantor to, promptly
execute and deliver all instruments and documents, and take all further action
that the Administrative Agent may reasonably request, in order to perfect any
Lien granted under the Transaction Documents or to enable the Administrative
Agent to exercise and enforce its rights and remedies hereunder and under the
Transaction Documents.
SECTION 5.09. Payment of Leasing Commissions and Costs of
Tenant Improvements. The Borrower shall pay (i) all costs of tenant improvements
required to be paid by the Borrower under Leases executed by the Borrower and
(ii) all leasing commissions payable by the Borrower in connection with the
execution of any such Leases.
SECTION 5.10. Commitment Fee. The Borrower shall pay to the
Administrative Agent for the ratable benefit of the Lenders, an annual fee equal
to .25% of the Available Commitment from time to time. Such fee shall be payable
in equal quarterly installments in arrears, commencing on the Effective Date and
on the first Business Day of each quarter thereafter, until the Loan is repaid
in full.
SECTION 5.11. Management Agreement. The Borrower shall
terminate that certain Renting and Management Agreement between Mid-City
Associates and Helmsley-Spear, Inc. dated June 1, 1972, as amended by letter
agreement dated February 9, 1998, as of February 9, 1999.
SECTION 5.12. LIRR Ground Lease. The Borrower shall provide to
Administrative Agent evidence in form and substance reasonably satisfactory to
Administrative Agent that all "Percentage Rent" (as defined in the Ground Lease
with The Long Island Rail Road Company ("LIRR")) payable under the LIRR Ground
Lease through March 31, 1998 has been paid. Such evidence shall be delivered to
Administrative Agent on or prior to the date which is the earlier of (i) 30 days
after the Effective Date or (ii) if LIRR delivers a notice of default under the
Ground Lease, within the applicable grace period for curing such default as
provided in Section 19 of the LIRR Ground Lease.
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ARTICLE VI
Negative Covenants
Until the principal of and interest on the Loan and all fees
payable hereunder have been paid in full, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not create,
incur, permit to exist any Indebtedness, except (i) Indebtedness created
hereunder, (ii) commercially reasonable unsecured Indebtedness incurred in the
ordinary course of business in connection with the operation of the Mortgaged
Property and consistent with the Annual Operating Budget (subject to reasonable
modifications thereto if required) or (iii) Indebtedness incurred with respect
to leases of equipment used in connection with the Premises having annual
payments not to exceed $100,000 in the aggregate.
SECTION 6.02. Liens. The Borrower will not (i) create, (ii)
incur, (iii) permit to exist for longer than 60 days or (iv) assume, any Lien on
the Premises or on any other property or asset now owned or hereafter acquired
by it, or assign or sell any income or revenues (including accounts receivable)
or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) the existing Leases and new Leases permitted under Section
6.07 hereof; and
(c) Liens secured by or created by the Transaction Documents.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not
merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or liquidate or dissolve.
(b) The Borrower will not engage in any business other than
the operation of the Mortgaged Property.
SECTION 6.04. Hedging Agreements. The Borrower will not
enter into any interest rate protection agreement, foreign currency exchange
agreement, commodity price protection agreement or other interest or currency
exchange rate or commodity price hedging arrangement, other than the Hedging
Agreement.
SECTION 6.05. Transaction with Affiliates. The Borrower will
not sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or otherwise engage in
any other
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transactions with, any of its Affiliates, except in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Affiliate than could be obtained on an arm's-length basis from
unrelated third parties.
SECTION 6.06. Distributions. The Borrower will not make any
distributions, repayment of indebtedness, or payment or return of any other sum
to or for the benefit of the Guarantor during any fiscal quarter if the Debt
Service Coverage Ratio as of the last day of such fiscal quarter occurring (i)
during the period commencing on the Effective Date and ending on June 30, 1999
is or will be less than 1.0 to 1 and (ii) during any period thereafter is or
will be less than 1.15 to 1.
SECTION 6.07. Leases. (a) The Borrower will not, without the
prior written consent of the Administrative Agent, make, or suffer to be made,
any Leases other than (i) Leases in existence on the date hereof and (ii) Leases
which conform with the requirements of Section 6.07(c).
(b) The Borrower shall deliver prompt written notice to the
Administrative Agent of all new Leases, Lease terminations with respect to any
Lease of 50,000 or more rentable square feet and Lease modifications, which
notice shall set forth the identity of the tenant, proposed tenant and/or
substitute tenant, as the case may be, and all material terms relating to the
proposed letting, termination or modification. The Borrower shall, within 15
days after the date of this Agreement, submit to the Lender for its review and
approval and the review and approval of its counsel, a standard form of office
lease and retail lease, the approval of which shall not be unreasonably withheld
or delayed. All Leases of space in the Improvements executed after the date
hereof shall be on the form of Lease previously approved by the Administrative
Agent and its counsel without substantive modification except for commercially
reasonable modifications typically made in the usual and ordinary course of
arm's length negotiations of leases of space in improvements comparable to the
Improvements and, unless otherwise elected by the Administrative Agent, be
subject and subordinate to the Mortgage and to the Lien thereof.
(c) In the case of any lease at the Mortgaged Property
covering less than 50,000 rentable square feet which is not an Intermediate
Lease, the Borrower shall have the right without the Administrative Agent's
prior consent and provided no Event of Default has occurred and is continuing:
(A) to terminate or accept a surrender of any such Lease (1) in accordance with
its terms upon a default by the tenant thereunder or (2) in connection with the
reletting of the space for a rental per square foot at least equal to the
applicable rental set forth on Schedule 6.07 attached; (B) to enter into new
Leases with tenants, provided that each such lease (1) is substantially in
accordance with the form of Lease previously approved by the Administrative
Agent and its counsel without substantive modification except for commercially
reasonable modifications typically made in the usual and ordinary course of
arm's length negotiations of leases of space in improvements comparable to the
Improvements, (2) is for a rental per square foot at least equal to the
applicable rental set forth on Schedule 6.07 attached, and (3) will not result
in a tenant (other than existing tenants
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pursuant to Leases entered into prior to this Agreement or in accordance with
this Agreement) leasing space in the Mortgaged Property under other Leases and
the proposed Lease in excess of 50,000 rentable square feet in the aggregate;
and (C) to modify any such Lease, but only for a rental per square foot at least
equal to the applicable rental set forth on Schedule 6.07 attached, and provided
that after giving effect to such modification, such lease continues to be
substantially (x) in accordance with the standard form of lease previously
approved by the Administrative Agent and its counsel, if such Lease was entered
into after the date of this Agreement, without substantive modification except
for commercially reasonable modifications typically made in the usual and
ordinary course of arm's length negotiations of leases of space in improvements
comparable to the Improvements or (y) the same as the form of such Lease prior
to such amendment, if such Lease exists on the date of this Agreement, without
substantive modification except for commercially reasonable modifications
typically made in the usual and ordinary course of arm's length negotiations of
leases of space in improvements comparable to the Improvements. The rentals set
forth on Schedule 6.07 may be modified each year with the Administrative Agent's
prior consent. The Administrative Agent shall either consent or refuse to
consent to the proposed modification within 30 Business Days after receipt of
such proposed modification to Schedule 6.07. If the Administrative Agent shall
fail to respond within such 30 Business Day period, then the Administrative
Agent shall be deemed to have consented to such proposed modification.
(d) Prior to entering into any Lease with respect to 50,000 or
more rentable square feet of space in the Improvements (irrespective of whether
the space demised under any such lease or to any such tenant is physically
contiguous) or a renewal, amendment or termination of any such Lease, the
Borrower shall deliver to the Administrative Agent the following documents
(collectively, the "Lease Package"): (A) with respect to such new Lease or
renewal, amendment or termination of any such Lease, as the case may be, (x) a
signed letter of intent with the proposed tenant or (y) a proposal form prepared
by the Borrower and in substantially the form previously approved by the
Administrative Agent with respect to such Lease or renewal, amendment or
termination of any such existing Lease, as the case may be (such letter of
intent or proposal, as the case may be, being referred to herein as the "Major
Terms Document"), in each case, containing all the material terms of the
proposed Lease or such renewal, amendment or termination thereof, as the case
may be, including, without limitation, in the case of a new Lease, the identity
of the proposed tenant and (B) with respect to a new Lease, such information
with respect to the prospective tenant as shall permit the Administrative Agent
and, in the case of a Major Lease, as defined below, the Lenders, to assess such
proposed tenant's business, character and creditworthiness.
(e) The Borrower shall not enter into any (i) retail Lease
with respect to more than 5,000 rentable square feet of space in the
Improvements in connection with which a subordination, attornment and
non-disturbance agreement is required by the tenant thereunder or (ii) office
Lease with respect to more than 25,000 rentable square feet of space in the
Improvements in connection with which a
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subordination, attornment and non-disturbance agreement is required by the
tenant thereunder or (iii) Lease with respect to 50,000 or more but less than
125,000 rentable square feet of space in the Improvements (in each case,
irrespective of whether the space demised under any such Lease or to any such
tenant is physically contiguous) (each such lease, an "Intermediate Lease") or
modify, amend (other than ministerial amendments required or contemplated by an
Intermediate Lease (including, without limitation, such amendments which are
entered into in order to evidence the exercise by the tenant of a renewal,
extension or expansion option which is contained in such Intermediate lease)),
terminate (except after a default by the tenant thereunder) or accept the
surrender of any existing Intermediate Lease without, in each case, first
obtaining the prior written consent of the Administrative Agent, which consent
shall not be unreasonably withheld or delayed. With respect to each Intermediate
Lease, within ten (10) Business Days after the Administrative Agent shall have
received the Lease Package with respect to such Intermediate Lease, the
Administrative Agent shall either consent or refuse to consent to such Major
Terms Document. If the Administrative Agent shall refuse to consent to the
proposed Major Terms Document, then the Administrative Agent shall promptly
forward to the Borrower the reasons for such refusal in reasonable detail. If
the Administrative Agent shall fail to respond within such ten (10) Business Day
period, then the Administrative Agent shall be deemed to have consented to such
proposed Major Terms Document.
(f) The Borrower shall not enter into any Lease with respect
to 125,000 or more rentable square feet of space in the Improvements
(irrespective of whether the space demised under any such Lease or to any such
tenant is physically contiguous) (each such lease, a "Major Lease") or modify,
amend (other than ministerial amendments required or contemplated by a Major
Lease (including, without limitation, such amendments which are entered into in
order to evidence the exercise by the tenant of a renewal, extension or
expansion option which is contained in such Major Lease)), terminate (except
after a default by the tenant thereunder) or accept the surrender of any
existing Major Lease without, in each case, first obtaining the prior written
consent of the Required Lenders, which consent shall not be unreasonably
withheld or delayed. With respect to each proposed Major Lease or any renewal,
amendment or termination of an existing Major lease, the Administrative Agent
shall promptly upon receipt deliver a copy of the Lease Package with respect to
such Major Lease or such renewal, amendment or termination, as the case may be,
to each Lender. Within fifteen (15) Business Days after the Administrative Agent
shall have received the Lease Package with respect to such Major Lease, the
Required Lenders shall either consent or refuse to consent to the Major Terms
Document relating to such Major Lease. If the Required Lenders shall refuse to
consent to the proposed Major Terms Document, then the Administrative Agent
shall promptly forward to Borrower the reasons for such refusal in reasonable
detail. If the Administrative Agent shall fail to respond on behalf of the
Lenders within such fifteen (15) Business Day period, then the Required Lenders
shall be deemed to have consented to the proposed Major Terms Document with
respect to such Major Lease.
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(g) If the Required Lenders or the Administrative Agent, as
the case may be, shall have approved the Major Terms Document with respect to
the termination (to the extent consent is required) or surrender of an existing
Intermediate Lease or Major Lease, then the Borrower may proceed with such
termination or surrender in accordance with the Major Terms Document with
respect to such Intermediate Lease or Major Lease. If the Required Lenders or
the Administrative Agent, as the case may be, shall have approved the Major
Terms Document with respect to a new Intermediate Lease or Major Lease or the
amendment (to the extent consent is required) or renewal of an existing
Intermediate lease or Major Lease, as the case may be, then the Borrower shall
deliver to the Administrative Agent the final draft of the proposed Intermediate
Lease or Major Lease or the relevant renewal or amendment documents, as the case
may be, in the case of a new Intermediate Lease or Major Lease shall be
mechanically marked to show changes between such Intermediate Lease or Major
Lease, and the standard form lease approved by the Administrative Agent and its
counsel. Within ten (10) Business Days after receipt of the final draft of the
proposed Intermediate Lease or Major Lease or the renewal or amendment
documents, as the case may be, and provided that Borrower has otherwise complied
with the terms of this Section 6.07, the Administrative Agent shall approve or
deny approval of such Intermediate Lease or Major Lease or renewal or amendment
documents, as the case may be, which approval shall not be unreasonably withheld
or delayed, and the approval of the Required Lenders shall not be required. If
the Administrative Agent shall fail to respond with in such ten (10) Business
Day period, then the Administrative Agent shall be deemed to have consented to
such proposed Intermediate Lease or Major Lease or such renewal or amendment of
an existing Intermediate Lease or Major Lease, as the case may be.
(h) Upon request of Borrower and provided that no Event of
Default has occurred and is continuing hereunder, Administrative Agent shall
execute and deliver to any tenant a subordination and non-disturbance agreement
on behalf of Lenders, in a form satisfactory to Administrative Agent, respecting
any Intermediate Lease or Major Lease for which approval has been granted under
this Agreement.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of the Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on the Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or any other
Transaction Document
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when and as the same shall become due and payable and such failure
shall continue unremedied for a period of five days after such due
date;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or the Guarantor in or in connection with
this Agreement or any other Transaction Document or any amendment or
modification hereof or thereof, or otherwise in connection with the
Transaction, including without limitation, in any report, certificate,
financial statement or other document furnished pursuant to or in
connection with this Agreement or any other Transaction Document or any
amendment or modification thereof, shall prove to have been incorrect
when made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the Borrower's or the Guarantor's existence), 5.07 or 5.12
or in Article VI, provided, that the Borrower's failure to give any
notice required pursuant to Section 5.02(a) shall be deemed to be cured
upon Borrower's cure of the Default which gave rise to such notice
obligation;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Article), and
such failure shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent (given at the request of
any Lender) to the Borrower; provided, that, if such failure cannot
reasonably be remedied within such 30 day period, such failure does not
give rise to any rights on the part of tenants under Leases to
terminate their Leases or otherwise adversely affect the value or use
of the Mortgaged Property as a commercial office building, and the
Borrower shall have commenced to remedy such failure and shall be
diligently and expeditiously proceeding to remedy such failure, such 30
day period shall be extended for so long as it shall require the
Borrower in the exercise of due diligence to remedy such failure, but
only so long as such delay is not likely to have a Material Adverse
Effect;
(f) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or the
Guarantor, or their debts, or of a substantial part of their assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or the Guarantor or
for a substantial part of their assets, and, in any such case, such
proceeding or petition shall continue undismissed for 90 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
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(g) the Borrower or the Guarantor shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or the Guarantor or
for a substantial part of their assets, (iv) file an answer admitting
the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the
foregoing;
(h) the Borrower or the Guarantor shall become unable, admit
in writing or fail generally to pay their debts as they become due;
(i) one or more judgments for the payment of money (not paid
or fully covered by insurance other than reasonable deductibles as to
which the relevant insurance company has acknowledged coverage) in an
aggregate amount in excess of $500,000 shall be rendered against the
Borrower, or in excess of $5,000,000 shall be rendered against the
Guarantor, and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of the Borrower or the Guarantor to
enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, will result in a Material Adverse Effect;
(k) any of the Transaction Documents or any material provision
of any Transaction Document shall be cancelled, terminated, revoked or
rescinded, or any Lien thereof shall cease or lose its priority; or the
OP Guarantee shall be cancelled, terminated, revoked or rescinded at
any time or for any reason whatsoever or the Guarantor shall be in
default after notice, if any, and after the expiration of applicable
grace periods, if any, under the OP Guarantee; or any assertion is made
by or on behalf of the Borrower or the Guarantor that this Agreement or
any other Transaction Document is not legal, valid and binding; or any
action at law, suit in equity or other legal proceeding to make
unenforceable, or to cancel, revoke or rescind any of the Transaction
Documents shall be commenced by or on behalf of the Borrower or the
Guarantor, or any court or any Governmental Authority of competent
jurisdiction shall make a determination that, or ensure a judgment,
order, decree or ruling to the effect that, any one or more of the
Transaction Documents is illegal, invalid or unenforceable as to any
material terms thereof;
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(l) an "Event of Default" (as defined in any other Transaction
Document) shall occur and be continuing; or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (f) or (g) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, (i) declare
the Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate and/or (ii) declare the Loan then outstanding to be due
and payable in whole (or in part, in which case any principal not so declared to
be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loan so declared to be due and payable, together
with accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder and under the other Transaction Documents, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and the Administrative
Agent shall, at the direction of the Required Lenders, exercise all rights and
remedies available under the Transaction Documents, at law or in equity,
including without limitation, foreclosure of the Mortgaged Property; and in case
of any event described in clause (f) or (g) of this Article, the Commitments
shall automatically terminate and the principal of the Loan then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder and under the other Transaction Documents, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
(a) Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof and of the other Transaction
Document, together with such actions and powers as are reasonably incidental
thereto.
(b) The bank serving as the Administrative Agent hereunder and
under the other Transaction Documents shall have the same rights and powers in
its capacity as a Lender as any other Lender and may exercise the same as though
it were not the Administrative Agent, and such bank and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with the Borrower or any Affiliate thereof as if it were not the Administrative
Agent hereunder and under the other Transaction Documents.
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(c) The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (i) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (ii) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby and by the
other Transaction Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders, and (iii) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Affiliates that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders or in the
absence of its own gross negligence or wilful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or the other Transaction Documents
(ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or in
the other Transaction Documents, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, the other Transaction Documents
or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
(d) The Administrative Agent shall be entitled to rely upon,
and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
(e) The Administrative Agent may perform any and all its
duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and
any such sub-agent may perform any and all its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in
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connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
(f) The Administrative Agent may resign as Administrative
Agent upon thirty (30) days' notice to the Lenders and the Borrower. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Transaction Documents, then the Required Lenders shall have the
right to appoint a successor after consultation with the Borrower and, if such
successor is not already a Lender, after obtaining Borrower's consent, which
consent shall not be unreasonably withheld. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent shall, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
(g) Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
(h) The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
(i) the Administrative Agent has received notice from a Lender or the Borrower
describing such Default or Event of Default and stating that such notice is a
"notice of default", or (ii) the Administrative Agent has actual notice of such
Default or Event of Default. In the event that the Administrative Agent receives
such a notice, the Administrative Agent shall promptly give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be directed by the Required Lenders;
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent shall take such action, or refrain from
taking such action, with respect to such Default or Event of Default as the
Administrative Agent shall reasonably deem necessary to
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protect and preserve the Mortgaged Property and the Lenders' rights and remedies
under the Transaction Documents. In no event shall the Administrative Agent be
required to take any action which it determines to be contrary to law. In no
event shall the Administrative Agent be required to take any action which could
expose the Administrative Agent to liability unless all of the Lenders shall
require the Administrative Agent to take such action and indemnify the
Administrative Agent to the Administrative Agent's satisfaction in connection
with same. Each Lender agrees that it shall promptly notify the Administrative
Agent in writing after it first has actual knowledge of any Default or Event of
Default. The Administrative Agent shall give a copy of any such notice received
by the Administrative Agent to the other Lenders if such notice pertains to a
decision by the Lenders pursuant to paragraph (i) or (j).
(i) Upon the Administrative Agent's receipt of a notice of
default (as defined in subparagraph (h) above), the Administrative Agent shall
consult with the Lenders to determine a course of action which is acceptable to
the Required Lenders. Subject to Section 9.02 hereof, the Administrative Agent
shall pursue any such course of action approved by the Required Lenders in
respect of any Default or Event of Default, including, without limitation,
acceleration of the indebtedness, commencement of any suit to foreclose any
security for the Loan and acquisition of title to the Mortgaged Property in
connection with such foreclosure, or the defense, settlement or compromise of
any claims for liens which are prior to the lien of the Mortgage.
(j) Subject to Section 9.02 hereof, the Administrative Agent
agrees to take such action as the Required Lenders shall direct in connection
with (i) the sale or other disposition of the Mortgaged Property or other
security for the Loan, (ii) the operation, repair, preservation, improvement and
management of the Mortgaged Property if the Administrative Agent or any nominee
acting on behalf of the Administrative Agent and/or the Lenders acquires title
to or possession of the Mortgaged Property in connection with the realization of
the security for the Loan, and (iii) any disposition of the Mortgaged Property
after an acquisition of title to or possession of the Mortgaged Property in
connection with the realization of the security for the Loan. With respect to
clause (i) above, if the Administrative Agent has not been directed by the
Required Lenders within a reasonable time period as to what action to take at
the sale of the Mortgaged Property, the Administrative Agent shall bid at such
sale the aggregate amount of the then outstanding balance of the Loan, including
principal, interest, costs, attorneys' fees and other unpaid amounts secured by
the Mortgage. With respect to clause (ii) above, if the Administrative Agent is
not directed by the Required Lenders within a reasonable time period, the
Administrative Agent shall take such actions as are reasonable and necessary for
responsible operation and management of the Mortgaged Property.
(k) If the Mortgaged Property is foreclosed upon pursuant to
the direction of the Required Lenders, then after payment of all costs and
expenses of foreclosure and collection, the Administrative Agent shall remit to
each of the Lenders such Lender's percentage of all net proceeds received by the
Administrative Agent as a consequence of such foreclosure proceeding. If the
Administrative Agent or any
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nominee acting on behalf of the Administrative Agent and/or the Lenders acquires
the Mortgaged Property through foreclosure, deed in lieu of foreclosure or
otherwise, each of the Lenders shall have an undivided interest in the Mortgaged
Property equal to such Lender's proportionate interest in the Loan,
notwithstanding the fact that title may be taken in the name of the
Administrative Agent alone.
(l) None of the Co-Agents shall have any duties or
responsibilities hereunder in its capacity as such.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at c/o Vornado Realty, L.P.,
Park 00 Xxxx, Xxxxx XX, Xxxxxx Xxxxx, Xxx Xxxxxx 00000, Attention of
Chief Financial Officer (Telecopy No. (000) 000-0000), with a copy to
Proskauer Rose LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention of Xxxxxxxx X. Xxxxxx, Esq. (Telecopy No. 212-969-2900);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx
Xxxxxxx, Vice President (Telecopy No. (000) 000-0000), with a copy to
The Chase Manhattan Bank, Legal Department, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Real Estate Counsel
(Telecopy No. (000) 000-0000) and with a copy to Xxxxxxx Xxxxxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of
Xxxx Xxxxxxx, Esq. (Telecopy No. (000) 000-0000); and
(c) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent or any Lender in exercising any right or power
hereunder or under the other Transaction Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or
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discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or of any of the
other Transaction Documents or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of the Loan shall
not be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any of the other Transaction
Documents nor any provision hereof or thereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders or by the Borrower and the Administrative
Agent with the consent of the Required Lenders; provided that no such agreement
shall (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) increase the aggregate Commitments of the Lenders in excess of
the total amount set forth on Schedule 2.01 without the written consent of each
Lender, (iii) reduce the principal amount of the Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iv) postpone the scheduled date of
payment of the principal amount of the Loan, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender affected thereby, (v) change Section 2.10(c)
or (d) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (vi) except as contemplated
by the terms of the Transaction Documents, release any collateral or any
guaranty without the written consent of each Lender, or (vii) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, without the prior written consent
of the Administrative Agent, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent based on time actually
spent at rates then billed (whether in-house staff or retained firms, but
without duplication), in connection with the syndication of the credit
facilities provided for herein, the preparation of this Agreement and the other
Transaction Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions
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contemplated hereby or thereby shall be consummated), (ii) all out-of-pocket
expenses incurred by the Administrative Agent or any Lender, including the
reasonable fees, charges and disbursements of any counsel for the Administrative
Agent based on time actually spent at rates then billed (whether in-house staff
or retained firms, but without duplication) or any Lender, in connection with
the review, preparation or negotiation of any consents or approvals of
Administrative Agent or Lenders hereunder or of Leases or non-disturbance
agreements or the enforcement or protection of its rights in connection with
this Agreement and the other Transaction Documents, including its rights under
this Section, or in connection with the Loan made hereunder, including in
connection with any workout, restructuring or negotiations in respect thereof
and (iii) the cost to the Administrative Agent of any reappraisals of the
Mortgaged Property to the extent required pursuant to the Financial Institutions
Reform and Enforcement Act of 1989.
(b) The Borrower shall indemnify the Administrative Agent and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery by Borrower or Guarantor
of this Agreement, the other Transaction Documents or any other agreement or
instrument contemplated hereby, the performance by Borrower or Guarantor of
their respective obligations hereunder or thereunder or the consummation of the
Transaction or any other transactions contemplated hereby, (ii) the use of the
proceeds of the Loan, (iii) any actual or alleged presence or release of
Hazardous Materials on or from the Mortgaged Property or any Environmental
Liability related in any way to the Borrower in respect of the Mortgaged
Property, (iv) any and all lawful action that may be taken by the Administrative
Agent in connection with the enforcement of the provisions of this Agreement or
any other Transaction Document, whether or not suit is filed in connection with
the same, or in connection with the Borrower or Guarantor becoming a party to a
voluntary or involuntary federal or state bankruptcy, insolvency or similar
proceeding, (v) the past, current and/or future sale or offering for sale of
membership interests in the Borrower, including, without limitation, liabilities
under any applicable securities or blue sky laws, or (vi) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or wilful misconduct of such Indemnitee. The obligations of the
Borrower under clause (iii) of this paragraph (b) shall, notwithstanding any
exculpatory or other provisions of any nature whatsoever set forth in the
Transaction Documents, constitute the personal recourse undertakings,
obligations and liabilities of the Borrower, but not its members, partners,
officers, directors or shareholders.
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(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, under paragraph (a) or
(b) of this Section, each Lender severally agrees to pay to the Administrative
Agent, such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transaction, the Loan or the use of the proceeds thereof.
(e) The Borrower covenants and agrees that no brokerage
commission or other fee, commission or compensation is to be paid by the Lenders
or the Administrative Agent and the Borrower agrees to indemnify the Lenders and
the Administrative Agent against any claims for any of the same. The Lenders
represent that they have not dealt with any brokers in connection with the
Transaction.
(f) The Borrower and the Guarantor agree to indemnify each
Indemnitee against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including the reasonable
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with or as a
result of (i) any distribution, loan or payment being made by the Borrower to
the Guarantor or any other Person in violation of the covenants set forth in
this Agreement, to the extent of such distribution or (ii) any wrongful
misappropriation or diversion of any portion of the Mortgaged Property
(including, without limitation, Rents, insurance proceeds or condemnation
awards), to the extent of such wrongful misappropriation. The obligations of the
Borrower and the Guarantor under this paragraph (f) shall, notwithstanding any
exculpatory or other provisions of any nature whatsoever set forth in the
Transaction Documents, constitute the personal recourse undertakings,
obligations and liabilities of the Borrower and the Guarantor.
(g) All amounts due under this Section shall be payable
promptly after written demand therefor and, until reimbursed by the Borrower
and, in the case of paragraph (f), the Guarantor, pursuant hereto, shall be
deemed additional principal of the Loan and shall bear interest at the Default
Rate.
SECTION 9.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the
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prior written consent of each Lender (and any attempted assignment or transfer
by the Borrower without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the portion of the Loan at the time owing to it);
provided that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Borrower and the Administrative Agent must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, (iv) the parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; provided further that any
consent of the Borrower or the Administrative Agent otherwise required under
this paragraph shall not be required if an Event of Default has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.07,
2.08, 2.09 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of
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the Loan owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the
portion of the Loan owing to it); provided that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.07, 2.08 and 2.09 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.07 or 2.09 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.09 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.09(e) as though it were a Lender.
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(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any such pledge or assignment to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and the other
Transaction Documents, including without limitation, in the certificates or
other instruments delivered in connection with or pursuant to this Agreement or
any other Transaction Document shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and delivery of this
Agreement and the making of the Loan, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on the Loan or any fee or any other amount
payable under this Agreement or any other Transaction Document is outstanding
and unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.07, 2.08, 2.09 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
Transaction, the repayment of the Loan, the expiration or termination of the
Commitments, the termination of this Agreement or any provision hereof or the
foreclosure of the Mortgage, sale of the Mortgaged Property pursuant to the
provisions of the Mortgage or acceptance by the Administrative Agent, its
nominee or affiliate, of a deed or assignment in lieu of foreclosure; provided,
however, that the provisions of Sections 2.09 and 9.03(a) shall only survive and
remain in full force and effect until the date which is 120 days after repayment
of the Loan.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and the Loan shall have been funded pursuant to the
terms of this Agreement, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
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SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final, but excluding tenant security deposits) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of the Borrower against any of and all the obligations of the Borrower
now or hereafter existing under this Agreement held by such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement
and although such obligations may be unmatured. The rights of each Lender under
this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement and the other Transaction Documents shall be
construed in accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
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(d) Each party to this Agreement irrevocably agrees that
service of process may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
the Borrower at its address set forth in Section 9.01 or at such other address
of which the Administrative Agent shall have been notified pursuant thereto.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTION CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" means
all information received from the
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Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the
case of information, other than property information, received from the Borrower
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
the Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding a portion of the Loan
in accordance with applicable law, the rate of interest payable in respect of
the Loan hereunder, together with all Charges payable in respect thereof, shall
be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loan or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.14. Relationship; Reasonableness. (a) The
relationship of the Lenders and the Administrative Agent to the Borrower
hereunder and under any other Transaction Document or otherwise with respect to
the Loan and the Transaction is strictly and solely that of lender and borrower
and mortgagor and mortgagee and, if applicable, swap counterparties, and nothing
contained in this Agreement, the Transaction Documents or any other document or
instrument now or hereafter executed and delivered in connection therewith or
otherwise in connection with the Loan secured hereby is intended to create, or
shall in any event or under any circumstance be construed as creating, a
partnership, joint venture, tenancy-in-common, joint tenancy or other
relationship of any nature whatsoever between the Lenders and the Administrative
Agent to the Borrower other than as lender and borrower and mortgagor and
mortgagee and, if applicable, swap counterparties.
(b) If at any time the Borrower believes that the Lenders or
the Administrative Agent has not acted reasonably in granting or withholding any
approval or consent under this Agreement or any other Transaction Documents or
otherwise with respect to the Loan, as to which approval or consent either the
Lenders or the Administrative Agent has expressly agreed to act reasonably, or
absent such agreement, a court of law having jurisdiction over the subject
matter would require the Administrative Agent to act reasonably, then the
Borrower's sole remedy shall be to
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seek injunctive relief or specific performance and no action for monetary
damages or punitive damages shall in any event or under any circumstance be
maintained by the Borrower against the Lenders or the Administrative Agent.
(c) Notwithstanding anything to the contrary contained herein
or in any other Transaction Document, neither the Administrative Agent nor any
Lender shall have any obligation to grant their consent or approval to any
matter, where such consent or approval may otherwise be required not to be
unreasonably withheld, at any time an Event of Default or a material Default
shall have occurred and be continuing.
(d) Notwithstanding anything to the contrary herein, there
shall not be any restriction hereunder as to the Persons to which all or any
portion of the Loan may be participated or assigned or as to the amount of any
portion of the Loan which may be participated or assigned, at any time an Event
of Default or a material Default shall have occurred and be continuing.
(e) Any rights of the Borrower hereunder or under any other
Transaction Document to grant its approval or consent to any matter shall be of
no force or effect at any time a Default shall have occurred and be continuing.
SECTION 9.15. Conflicts and Inconsistencies. In the event of
any conflict or inconsistency between the respective terms, provisions,
covenants and conditions set forth in the Transaction Documents, such terms,
provisions, covenants and conditions shall be construed to supplement and
complement each other, and Borrower shall be bound by the more stringent or
expansive terms, provisions, covenants and conditions.
SECTION 9.16. Exculpation. There shall be no limitation on the
Borrower's personal liability under the Loan to the extent of $105,000,000,
which portion of the Loan shall be fully recourse against the assets of the
Borrower (the "Recourse Liability"); provided however, such Recourse Liability
shall not be recourse to the assets of the members of the Borrower, and provided
further that such Recourse Liability shall be reduced to the extent (i) one or
more guaranties of payment of a portion of the Loan from individuals or entities
which are direct or indirect members of the Borrower have been received by the
Lenders and remain in full force and effect, and (ii) the amount of any
reduction in the outstanding principal balance of the Loan. The Lenders agree to
accept any such guaranties that are so delivered. Except for the Recourse
Liability and any guaranties thereof, and except as provided below in this
Section, the liability and obligation of the Borrower for the performance of the
obligations contained in the Transaction Documents and the payment of the Note
and any other fee, charge or other amount which may become due in accordance
with the provisions of the Note, this Agreement and the other Transaction
Documents shall not be enforced by any action or proceeding wherein damages or
any money judgment or any deficiency judgment or any judgment establishing any
personal obligation or liability shall be sought, collected or otherwise
obtained against the Borrower or against any past, present or future member,
partner, officer, director or shareholder of
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the Borrower, and each Lender and the Administrative Agent for itself and its
successors and assigns irrevocably waives any and all right to xxx for, seek or
demand any such damages, money judgment, deficiency judgment or personal
judgment against the Borrower or against any past, present or future member,
partner, officer, director or shareholder of the Borrower under or by reason of
or in connection with the Transaction Documents and agrees to look solely to the
security and collateral held under or in connection with the Transaction
Documents for the enforcement of such liability and obligation of the Borrower.
Nothing contained in this Section 9.16 shall be construed (i) as preventing the
Administrative Agent or any Lender from naming the Borrower or any past, present
or future member, partner, officer, director or shareholder of the Borrower in
any action or proceeding brought by the Administrative Agent or any Lender to
enforce and to realize upon the security and collateral provided under or in
connection with the Transaction Documents so long as no judgment, order, decree
or other relief in the nature of a personal or deficiency judgment or otherwise
establishing any personal obligation shall be asked for, taken, entered or
enforced against the Borrower or against any past, present or future member,
partner, officer, director or shareholder of the Borrower, in any such action or
proceeding, except to the extent of the Recourse Liability as provided in the
first sentence of this Section 9.16, (ii) as modifying, qualifying or affecting
in any manner whatsoever the lien and security interests created by Mortgage and
the other Transaction Documents or the enforcement thereof by the Administrative
Agent or any Lender, (iii) as modifying, qualifying or affecting in any manner
whatsoever the personal recourse undertakings, obligations and liabilities of
any person, party or entity under any guaranty of payment, completion guaranty,
other guaranty or indemnification agreement now or hereafter executed and
delivered to the Administrative Agent in connection with the Transaction
Documents or in connection with the Loan including, without limitation, the
personal recourse obligations and liabilities of the Guarantor under the OP
Guarantee or (iv) as modifying, qualifying or affecting in any manner whatsoever
the personal recourse liability of the Borrower or any past, present or future
member, partner, officer, director or shareholder of the Borrower or any other
person, party or entity for fraud, misappropriation of assets of Borrower or
willful misrepresentation or any undertaking, obligation or liability under any
Transaction Document which is specifically set forth therein as a personal
recourse undertaking, liability or obligation of such Person (including, without
limitation, the obligations of the Borrower under Section 9.03(b)(iii) and the
Borrower and the Guarantor under Section 9.03(f)).
58
58
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ONE PENN PLAZA, LLC,
By: Vornado Realty L.P.,
sole member
By: Vornado Realty Trust,
sole general partner
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent, Arranger and Lender
By: /s/
----------------------------------------
Name:
Title:
BANK AUSTRIA AKTIENGESELLSCHAFT, as
Co-Agent and Lender
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
By: /s/ Andre X.X. Xxxxxxxxx
-----------------------------------------
Name: Andre X.X. Xxxxxxxxx
Title: Assistant Vice President
BANK AUSTRIA, AG
THE BANK OF NOVA SCOTIA, as Co-Agent
and Lender
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Sr. Relationship Manager
59
59
BAYERISCHE LANDESBANK, CAYMAN
ISLANDS BRANCH, as Co-Agent and Lender
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxx Xxxx
-----------------------------------------
Name: Xxxx Xxxx
Title: Vice President
SOCIETE GENERALE, SOUTHWEST
AGENCY, as Co-Agent and Lender
By: /s/ X. X. Silver
-----------------------------------------
Name: X. X. Silver
Title: Managing Director
WESTDEUTSCHE IMMOBILIEN BANK, as Co-
Agent and Lender
By: /s/ Claus J. Cohausz
-----------------------------------------
Name: Claus J. Cohausz
Title: Senior Vice President
By: /s/ Andreas Morchat
-----------------------------------------
Name: Andreas Morchat
Title: Vice President
THE BANK OF NEW YORK, as Lender
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
KBC BANK, N.V., as Lender
By: /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
60
60
LANDESBANK-HESSEN THURINGEN
GIROZENTRALE, NEW YORK BRANCH, as
Lender
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
CHASE SECURITIES, INC., as Arranger
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Vice President
The undersigned hereby executes this Agreement solely for the
purpose of agreeing to be bound by the provisions of Section 9.03(f) hereof.
VORNADO REALTY L.P.
By: Vornado Realty Trust,
sole general partner
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
