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CREDIT AGREEMENT
dated as of October 10, 1996
among
1290 PARTNERS, L.P.
and
237 PARK PARTNERS, L.P.
as Borrowers,
THE LENDERS LISTED HEREIN
and
THE CHASE MANHATTAN BANK
as Agent
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of October 10, 1996, among 1290 PARTNERS,
L.P., 237 PARK PARTNERS, L.P. (collectively, the "Borrowers" and individually,
each a "Borrower"), the LENDERS listed on the signature pages hereof and THE
CHASE MANHATTAN BANK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms, as used herein, have the
following meanings:
"Adjusted London Interbank Offered Rate" has
the meaning set forth in Section 2.6(b).
"Administrative Questionnaire" means, with respect to each Lender,
an administrative questionnaire in the form prepared by the Agent and submitted
to the Agent (with a copy to the Borrowers) duly completed by such Lender.
"Agent" means The Chase Manhattan Bank in its capacity as agent for
the Lenders hereunder, and its successors in such capacity appointed in
accordance with Section 7.8 hereof.
"Agreement" means this Credit Agreement as the same may from time to
time hereafter be modified, supplemented or amended.
"Alterations" has the meaning set forth in the
Mortgage.
"Alternate Base Rate Loan" means a Loan Tranche to be made by a
Lender as an Alternate Base Rate Loan in accordance with the applicable Notice
Interest Rate Election or pursuant to Article VIII.
"Alternate Base Rate" means, for any day, a
rate per annum equal to the higher of (i) the Prime Rate
for such day or (ii) the sum of 1.565% plus the Federal
Funds Effective Rate.
"Annual Budget" means the annual operating and capital improvement
budget for the Properties, as the same may be revised from time to time pursuant
to the provisions hereof.
"Applicable Lending Office" means, with respect to any Lender, (i)
in the case of its Alternate Base Rate Loans, its Domestic Lending Office and
(ii) in the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
Approved Banks: means banks or other financial institutions which
have a minimum long-term unsecured S&P debt rating of at least "A" or its
equivalent by at least two of the Rating Agencies; provided that at least one of
such Rating Agencies shall be either S&P or Xxxxx'x (as such terms are
hereinafter defined in the definition of "Rating Agencies").
"Asset Management Agreement" means the Asset Management Agreement,
dated as of October 10, 1996, between the Asset Manager and the REIT.
"Asset Manager" means 970 Management LLC, an affiliate of Xxxxxx
Capital Group, L.P., or any permitted successor.
"Assignee" has the meaning set forth in Section
9.6(c).
"Assignment of Leases and Rents" means the Assignment of Leases,
Rents and Security Deposits, dated as of even date hereof, by and among
Borrowers and Agent.
"Bankruptcy Code" means Title 11 of the United States Code, entitled
"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"Bankruptcy Court" has the meaning set forth in
Section 3.1(m).
"Benefit Arrangement" means, at any time, an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and
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which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrowers" means collectively the 237 Park Borrower, a Delaware
limited partnership, and the 1290 Borrower, a Delaware limited partnership, and
their permitted successors and assigns.
"Budget" means the operating and capital improvement budget for the
Properties for the remainder of 1996 prepared and delivered by Borrowers to
Agent prior to the date hereof and approved by the Agent.
"Building" and "Buildings" has the meaning set
forth in the recitals of the Mortgage.
"Capital Expenditures" means, for any period, the sum of all
expenditures made by or on behalf of the Borrowers, including payments of Tenant
Work Allowances and Tenant Expenses and the cost of any Tenant Improvements
performed by or on behalf of Borrowers, which are capitalized on the balance
sheet of the Borrowers in conformity with GAAP, other than capitalized interest
expense.
"Cash Collateral Agreement" means the Cash Collateral Account
Security Pledge and Assignment Agreement, dated as of the date hereof, among
Borrowers and the Agent.
"Cash Flow Letter of Credit" has the meaning
set forth in Section 2.15(b).
"Closing Date" has the meaning set forth in
Section 3.1.
"Collateral" means all property and interests in property now owned
or hereafter acquired in or upon which a Lien has been or is purported or
intended to have been granted to the Agent on behalf of the Lenders under the
Mortgage and each of the Loan Documents.
"Collection Accounts" has the meaning set forth
in the Cash Collateral Agreement.
"Collection Costs" has the meaning set forth in
Section 9.3(a).
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"Commitment" means, with respect to each Lender, the amounts set
forth opposite the name of such Lender on the signature pages hereof.
"Committee" has the meaning set forth in Sec-
tion 3.1(s).
"Consent and Subordination of Asset Management Agreement" means the
Consent and Subordination of Asset Management Agreement, dated as of the date
hereof, among Asset Manager, Borrowers and Agent.
"Consent and Subordination of Property Management Agreement" means
the Consent and Subordination of Property Management Agreement, dated as of the
date hereof, among Manager, Borrowers and Agent.
"Consumer Price Index" means the "Consumer Price Index-- For all
Items for the New York-Northern New Jersey Area (1982-1984=100)", published
monthly in the "Monthly Labor Review" of the Bureau of Labor Statistics of the
United States Department of Labor. If at any time the Consumer Price Index is no
longer available, then the term "Consumer Price Index" shall be an index
selected by Agent which, in the opinion of Agent, is comparable to the Consumer
Price Index.
"Counterparty" means The Chase Manhattan Bank.
"Debtors" has the meaning set forth in Section
3.1(s).
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Defaulting Lender" has the meaning set forth
in Section 9.17(c)(i).
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each
Lender, its office located at its address set forth in
its Administrative Questionnaire (or identified in its
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Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrowers and the Agent.
"Eligible Assignee" means (a) a commercial bank, trust company,
insurance company, investment bank or pension fund organized under the laws of
the United States of America, or any state thereof, and having total assets in
excess of $5,000,000,000; (b) a savings and loan association or savings bank
organized under the laws of the United States of America, or any state thereof,
and having a tangible net worth of at least $500,000,000; (c) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development ("OECD"), or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America; or (d) the central bank of any country
which is a member of the OECD.
"Engineering Report" has the meaning set forth
in Section 4.27.
"Environmental Affiliate" means any partnership or joint venture,
trust or corporation in which an equity interest is owned by the Borrowers or
the REIT (with respect to matters relating to the Properties), either directly
or indirectly.
"Environmental Approvals" means any permit, license, approval,
ruling, variance, exemption or other authorization required under applicable
Environmental Laws.
"Environmental Claim" means, with respect to any Person, any written
notice, claim, demand or similar written communication by any other Person
alleging potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damage, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
(i) the presence, or release into the environment, of any Hazardous Substance at
any Property, whether or not owned by such Person or (ii) circumstances forming
the basis of any violation, or alleged violation, of any Environmental
5
Law, in each case as to which there is a reasonable probability of an adverse
determination with respect thereto and which, if adversely determined, would
have a Material Adverse Effect.
"Environmental Guaranty" means the Joint and Several Hazardous
Material Guaranty and Indemnification Agreement, dated as of the date hereof,
made by the
General Partners and the Borrowers.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"Environmental Report" has the meaning set
forth in Section 4.7.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrowers and all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrowers, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"Escrow Sub-Account" has the meaning set forth
in Section 3.1(w).
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
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"Euro-Dollar Illegality Event" has the meaning
set forth in Section 8.2.
"Euro-Dollar Lending Office" means, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrowers and the Agent.
"Euro-Dollar Loan" means a Loan Tranche which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Interest Rate Election.
"Euro-Dollar Margin" has the meaning set forth
in Section 2.6(b).
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.6(b) on the basis of an Adjusted London Interbank Offered Rate.
"Euro-Dollar Reference Bank" means the princi-
pal London offices of The Chase Manhattan Bank.
"Euro-Dollar Reserve Percentage" has the mean-
ing set forth in Section 2.6(b).
"Event of Default" has the meaning set forth in
Section 6.1.
"Expiring Lease Costs" means, with respect to space at the Buildings
currently demised to Tenants pursuant to Leases with terms that expire during
the period commencing on January 1, 2001 and ending on December 31, 2003 as set
forth on Exhibit I attached hereto and made a part hereof, the aggregate of
Tenant Expenses, costs of Tenant Improvements and Tenant Work Allowances
(exclusive of free rent) actually incurred by the Borrowers in connection with
reletting such space or extending such Leases.
"Expiring Lease Costs Reserve Sub-Account" has
the meaning set forth in Section 2.15(a).
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"Extended Mandatory Prepayment Date" has the
meaning set forth in Section 2.8(e).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to The Chase Manhattan Bank on such day on
such transactions as determined by the Agent.
"Federal Reserve Board" means the Board of
Governors of the Federal Reserve System as constituted
from time to time.
"Fee Letter" means the letter, dated August 14, 1996, among Agent,
1290 Associates, L.L.C., 000 Xxxx Xxxxxx Associates, L.L.C., and the Olympia &
York
Noteholders Ad Hoc Committee.
"Fifth Loan Year" means the twelve month period commencing on the
fourth anniversary of the Closing Date.
"FIRREA" means Financial Institution Reform
Recovery and Enforcement Act of 1989.
"First Payment Date" means October 7, 1997.
"Fiscal Quarter" means any fiscal quarter of a
fiscal year of the Borrowers.
"Fourth Loan Year" means the twelve month period commencing on the
third anniversary of the Closing Date.
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"GAAP" means generally accepted accounting principles in the United
States as in effect from time to time.
"General Partners" means, collectively, 1290 GP Corp., a Delaware
corporation and the sole general partner of the 1290 Borrower (holding a one
percent (1%) ownership interest), and 237 GP Corp., a Delaware corporation and
the sole general partner of the 237 Park Borrower (holding a one percent (1%)
ownership interest).
"Governmental Authority" means any Federal, state or local
government or any other political subdivision thereof or agency exercising
executive, legislative, judicial, regulatory or administrative functions having
jurisdiction over Borrowers or the Properties.
"Group of Loans" means, at any time, a group of Loan Tranches
consisting of (i) all Loan Tranches which are Alternate Base Rate Loans at such
time, or (ii) all Loan Tranches which are Euro-Dollar Loans having the same
Interest Period at such time; provided that, if a Loan Tranche of any particular
Lender is converted to or made as an Alternate Base Rate Loan pursuant to
Section 8.2 or 8.4, such Loan Tranche shall be included in the same Group or
Groups of Loans from time to time as it would have been in if it had not been so
converted or made.
"Hazardous Substance" means any material, waste
or substance which is:
(i) included within the definition of "hazardous
substances," "hazardous materials," "toxic substances," or "solid waste"
in or pursuant to any Environmental Law, or subject to regulation under
any Environmental Law;
(ii) listed in the United States Department of
Transportation Optional Hazardous Materials Table, 49 C.F.R. ss. 172.101,
as enacted as of the date hereof, or in the United States Environmental
Protection Agency List of Hazardous Substances and Reportable Quantities,
40 C.F.R. Part 302, as enacted as of the date hereof or as hereafter
amended; or
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(iii) explosive, radioactive, asbestos, a
polychlorinated biphenyl, corrosive or other hazardous substances
including oil or petroleum, its derivatives, by-products or other
hydrocarbons or any constituent elements displaying any of the foregoing
characteristics.
"Impositions" has the meaning set forth in the
Mortgage.
"Improvements" has the meaning set forth in the
Mortgage.
"Indemnitee" has the meaning set forth in
Section 9.3(b).
"Initial Notice of Interest Rate Election" shall be the first Notice
of Interest Rate Election delivered by the Borrowers to the Agent no less than
three (3) Euro-Dollar Business Days before the Closing
Date.
"Institutional Lender" means (a) a commercial bank, trust company,
insurance company, investment bank or pension fund organized under the laws of
the United States of America, or any state thereof, and having total assets in
excess of $5,000,000,000; (b) a savings and loan association or savings bank
organized under the laws of the United States of America, or any state thereof,
and having a tangible net worth of at least $500,000,000; or (c) a commercial
bank organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development ("OECD"), or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America.
"Interest Period" means: (1) with respect to each Euro-Dollar Loan,
the period commencing on the Closing Date or on the date specified in the
applicable Notice of Interest Rate Election and ending one, two, three or six
months thereafter, as the Borrowers may elect in the applicable Notice of
Interest Rate Election; provided that:
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(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month;
(c) if any Interest Period includes a date on which a payment of
principal of the Loan is required to be made under Section 2.10 but does
not end on such date and sufficient funds are not then outstanding under
any Alternate Base Rate Loan, then (x) the principal amount (if any) of
each Euro-Dollar Loan required to be repaid on such date shall have an
Interest Period ending on such date and (y) the remainder (if any) of each
such Euro-Dollar Loan shall have an Interest Period determined as set
forth above; and
(d) any Interest Period shall always be for the same period as under
the Swap Agreement.
(2) with respect to each Alternate Base Rate Loan, the period commencing on the
Closing Date or on the date specified (or deemed specified) in the applicable
Notice of Interest Rate Election and ending on the last Domestic Business Day of
the calendar month in which such Notice of Interest Rate Election was made (or
deemed made); provided that if any Interest Period includes a date on which a
payment of principal of the Loan is required to be made under Section 2.10 but
does not end on such date, then (i) the principal amount (if any) of each
Alternate Base Rate Loan required to be repaid on such date shall have an
Interest Period ending on such date and (ii) the remainder (if any) of each such
Alternate Base Rate Loan shall have an Interest Period determined as set forth
above.
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"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Invalid Law" has the meaning set forth in
Section 8.3(c).
"Leases" has the meaning set forth in Granting
Clause IV of the Mortgage.
"Lender" means each lender listed on the signature pages hereof,
each Assignee which becomes a Lender pursuant to Section 9.6(c), and their
respective successors.
"Letter of Credit" means an irrevocable, unconditional,
transferable, clean sight draft letter of credit in favor of the Agent and
entitling the Agent to draw thereon in New York, New York, issued by an Approved
Bank and upon terms and in a form acceptable to Agent. Borrowers shall deliver
to Agent a replacement Letter of Credit at least ten (10) Domestic Business Days
prior to the expiration of any outstanding Letter of Credit. If at any time the
bank issuing any such Letter of Credit shall cease to be an Approved Bank, the
Agent shall have the right immediately to draw down the same in full and hold
the proceeds of such draw in accordance with the applicable provisions hereof,
unless the Borrowers shall deliver a replacement Letter of Credit within thirty
(30) days after the Agent delivers written notice to the Borrowers that such
bank shall have ceased to be an Approved Bank.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind (other than a Permitted
Lien) in respect of such asset. For the purposes of this Agreement, the
Borrowers or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means the loan in the amount of Four Hundred Twenty Million
Dollars ($420,000,000) to be made to the Borrowers by the Lenders to fund the
costs of the
acquisition of the Properties.
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"Loan Amount" has the meaning set forth in
Section 2.1.
"Loan Documents" means this Agreement, the Notes, the Mortgage, the
Swap Pledge, the Assignment of Leases and Rents, the Environmental Guaranty, the
Consent and Subordination of Property Management Agreement, the Consent and
Subordination of Asset Management Agreement, the Note Pledge and the Cash
Collateral Agreement and the other documents executed by the Borrowers that are
incidental or otherwise related thereto.
"Loan Tranche" means an Alternate Base Rate
Loan or a Euro-Dollar Loan and "Loan Tranches" means
Alternate Base Rate Loans or Euro-Dollar Loans or any
combination of the foregoing.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.6(b).
"Lower Tier LP" means 237/1290 Lower Tier Associates, L.P., a
Delaware limited partnership, which is the ninety-nine percent (99%) limited
partner of each Borrower and which has as its 95% general partner, the REIT, and
its five percent (5%) limited partner, the Upper Tier LP.
"Major Alteration" means an Alteration or series of Alterations
which affects the structural portion, the building systems, the lobby, the
facade, the plaza or the elevators of either Building excluding (i) normal and
customary tenant work primarily within the demised space under Leases (whether
performed by Borrowers or the Tenant), (ii) repair and maintenance, (iii)
replacements of equal or greater utility for building systems and equipment
only, (iv) work which is decorative or cosmetic in nature and (v) the 1290 Lobby
Work (as defined in the Cash Collateral Agreement).
"Major Lease" means a Lease at a Property demising in the aggregate
of all such Leases with such Tenant, no less than 40,000 rentable square feet.
"Manager" means Tishman Speyer Properties, L.P.
and its permitted successors.
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"Mandatory Prepayment Date" has the meaning set
forth in Section 2.8(e).
"Mandatory Prepayment Event" has the meaning
set forth in Section 2.8(e).
"Margin Stock" has the meaning provided such term in Regulation U
and Regulation G of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect upon (i)
the business, operations, financial condition, properties or assets of either or
both of the Borrowers, (ii) the operation or condition of either or both of the
Properties or (iii) the ability of the Borrowers to pay interest and principal
on the Loan when due.
"Material Contract" means (i) the Property
Management Agreement and (ii) the Asset Management Agree-
ment.
"Material Plan" means, at any time, a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"Monthly Amount" means (i) with respect to each of the Second Loan
Year and the Third Loan Year, the amount of $625,000, of which amount
$333,333.33 shall be allocated to the 1290 Property and $291,666.67 shall be
allocated to the 237 Park Property; (ii) with respect to the Fourth Loan Year,
the amount of $833,333.34, of which amount $445,416.67 shall be allocated to the
1290 Property and $387,916.67 shall be allocated to the 237 Park Property and
(iii) with respect to the Fifth Loan Year, the amount of $1,250,000, of which
amount $666,666.67 shall be allocated to the 1290 Property and $583,333.33 shall
be allocated to the 237 Park Property.
"Monthly Operating Statement" means the monthly operating statement
prepared by the Manager in accordance with Section 8(c) of the Property
Management Agreement or such similar form for any permitted successor Manager
pursuant to the terms hereof.
"Monthly Report" has the meaning set forth in
Section 5.1(j).
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"Mortgage" means the Mortgage Modification, Restatement and Security
Agreement, dated as of the date hereof, among Borrowers, as mortgagors, and
Agent, as mortgagee, as the same may be hereafter amended.
"Mortgaged Property" has the meaning set forth
in the Mortgage.
"Multiemployer Plan" means, at any time, an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making, or accruing an obligation to make, contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Net Cash Flow" means, for the relevant measuring period, (i) all
Property Income minus (ii) all Property Expenses as adjusted by (without
duplication) (x) all interest expenses, required principal amortization and
payments made by Borrowers pursuant to the Swap Agreement with respect to the
Loan for such period, (y) Capital Expenditures actually incurred for such
period, and (z) normal and customary reserves maintained during such period
whether or not required pursuant to the Loan Documents; provided that for the
purpose of this definition, Property Expenses such as Taxes (as defined in the
Mortgage) and premiums which are payable less frequently than monthly shall be
computed as if payable in twelve equal monthly installments and with respect to
items not annualized, such periodic installments as are appropriate.
"Notes" means promissory notes of the Borrowers, substantially in
the form of Exhibit "A" hereto, evidencing the obligation of Borrowers to repay
the Loan and "Note" means any one of such promissory notes.
"Note Pledge" means the Note Pledge and Security Agreement, dated
the date hereof, made by the Borrowers, as pledgors, in favor of Agent, as
pledgee, in connection with the Pledged Notes.
"Notice of Interest Rate Election" has the
meaning set forth in Section 2.2.
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"Obligations" means all obligations, liabilities and indebtedness of
every nature of the Borrowers, from time to time owing to any Lender under or in
connection with this Agreement or any other Loan Document.
"Officer's Certificate" means a certificate delivered to Agent by a
Borrower or such Borrower's General Partner which is signed by the president,
chief financial officer, chief operating officer or vice president of such
General Partner.
"Parent" means, with respect to any Lender, any
Person controlling such Lender.
"Payment in Full" has the meaning set forth in
Section 9.17(c)(iii).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Payment Date" means the seventh (7th) day of each calendar month,
provided that if such day is not a Euro-Dollar Business Day, the Payment Date
shall be the next succeeding Euro-Dollar Business Day, commencing on November 7,
1996 and ending on the Termination Date.
"Period Fraction" means, with respect to any period of time, a
fraction, the numerator of which is the actual number of days in such period,
and the denominator of which is three hundred and sixty (360).
"Permitted Liens" means those matters set forth in Schedule B of the
Title Policy issued by the Title Insurer in connection with the transactions
contemplated herein and attached hereto as Exhibit "G", as well as the Lien of
the Mortgage.
"Permitted Owners" means (i) any investment fund managed by or other
entity controlled by (A) Apollo Realty Advisors, L.P. (which fund or entity
would include without limitation Apollo Real Estate Investment Fund I, L.P.),
(B) Whitehall Street Real Estate, L.P. (which fund or entity would include
without limitation WSB Realty, LLC), (C) Oaktree Capital Management, LLC (which
fund or entity would include without limitation TCW Special Credits Fund and
other related funds thereof), or (D)
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Tishman Speyer Properties, L.P., (ii) Nyprop L.L.C., so long as Tishman family
members, Crown family members and/or senior management or senior employees of
Tishman Speyer Crown Equities or Tishman Speyer Properties, Inc. shall own
directly or indirectly more than fifty percent (50%) of the interests therein,
(iii) such REIT shareholders as are either, in each case as certified to Agent
by Borrowers in the form of certificate attached hereto as Exhibit J (and
verified to Agent's reasonable satisfaction): (A) investors (or entities
controlled by investors) having, as of the date such investor or entity is
proposed as a Permitted Owner, (x) investment management experience in
commercial real estate, (y) a current net worth, as determined in accordance
with GAAP (exclusive of good will) or on an audited tax basis if GAAP is not
available, of no less than $100,000,000, exclusive of its interest in the REIT,
and (z) ownership of assets and/or assets under management with an aggregate
fair market value of no less than $200,000,000, exclusive of its interest in the
REIT, (B) an investment vehicle advised by an investment manager or advisor,
which investment manager or advisor has, as of the date such investor or entity
is proposed as a Permitted Owner, (x) investment management experience in
commercial real estate, (y) a current net worth and/or investment vehicles under
management having a current net worth, as determined in accordance with GAAP
(exclusive of good will) or on an audited tax basis if GAAP is not available, of
no less than $100,000,000, exclusive of its interest in the REIT, in the
aggregate, and (z) ownership of assets and/or assets under management with an
aggregate fair market value of no less than $200,000,000, exclusive of its
interest in the REIT, (C) a pension fund, account or trust, commercial bank,
investment bank, savings and loan, savings bank or real estate investment trust
or an investment vehicle established by such an entity, which pension fund,
account trust fund, commercial bank, investment bank, savings and loan, savings
bank or real estate investment trust or investment vehicle has, as of the date
such investor or entity is proposed as a Permitted Owner, (y) a current net
worth, as determined in accordance with GAAP (exclusive of good will) or on an
audited tax basis if GAAP is not available, of no less than $100,000,000,
exclusive of its interest in the REIT, in the aggregate, and (z) ownership of
assets and/or assets under management with an aggregate fair market value of no
less than $200,000,000, exclusive of its
17
interest in the REIT; and, as are approved as a Permitted Owner by the Agent and
the Super Required Lenders, which consent shall not be unreasonably withheld or
delayed, and (iv) such other REIT shareholders as are approved as a Permitted
Owner by the Agent and the Super Required Lenders in their sole and absolute
discretion. For purposes of applying the thirty percent (30%) ownership test set
forth in Section 2.8(d) hereof, any REIT shareholder which is approved by Agent
and the Super Required Lenders as a Permitted Owner pursuant to the provisions
hereof shall be deemed to have been a Permitted Owner from the date it acquired
REIT shares. Notwithstanding the foregoing, if at any time Agent shall determine
that any certification made by any Permitted Owner pursuant to this definition
was materially false or misleading when made, such party shall be deemed to not
be a Permitted Owner from the date such false or misleading certificate was
made.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means, at any time, an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pledged Notes" means, collectively, the War-
burg Note and the Xxxxxxxx Note.
"Prime Rate" means the rate of interest publicly announced by The
Chase Manhattan Bank in New York City from time to time as its Prime Rate.
"Principal Letter of Credit" has the meaning
set forth in Section 2.8(d).
18
"Proceeds" has the meaning set forth in the
Mortgage.
"Property" and "Properties" have the meanings
set forth in the Mortgage.
"Property Expenses" means, with respect to the Properties the
following items without duplication thereof (provided however, that Property
Expenses shall not include debt service, non-cash items such as depreciation and
amortization and any extraordinary expenditures not considered operating
expenses in accordance with GAAP):
(A) all expenses for the operation of the Properties incurred by
Borrowers including asset and property management fees, accounting costs and
legal fees and all insurance expenses but not including any expenses incurred in
connection with a sale or other capital or interim capital transaction;
(B) Taxes, water charges, property taxes, sewer rents, other than
fines, penalties, interest or such Taxes (or portions thereof) that are payable
by reason of the failure by the owner of the Properties to pay a Tax timely;
(C) the cost of routine maintenance (the cost of which may be
expenses), repairs and minor alterations, the cost of which can be expensed
under GAAP;
(D) Tenant Improvements, Tenant Work Allowances and Tenant Expenses
(to the extent actually incurred);
(E) all reasonable and customary expenses incurred by the REIT
directly relating to the ownership of the Properties, such as asset and property
management fees and insurance expenses, and also including accounting costs,
legal fees, and "D&O" insurance (but excluding other costs not directly related
to ownership of the Properties), provided that if the REIT owns properties other
than the Properties any such expense not directly related to the ownership of
the Properties but permitted as a Property expense under this paragraph (E)
shall be included only to the extent equitably allocable to the Properties; and
19
(F) all commercially reasonable expenses incurred by Borrowers in
connection with the takeover of any leases in connection with Leases entered
into in accordance with the terms hereof.
"Property Income" means, for the Properties, all gross income and
Rentals paid to the owner of such Property from the ownership and operation of
such Property, service fees and charges, rebates, refunds, all tenant expense
reimbursement income, all amounts paid from the Xxxxxxxx Note, the Warburg Note
and the Swap Agreement and all insurance and condemnation proceeds net of costs
permitted under the Mortgage and not included in Property Expenses but excluding
(i) any proceeds resulting from a Transfer and (ii) security deposits received
from Tenants until forfeited.
"Property Management Agreement" means collectively, the Management
and Leasing Agreement, dated as of October 10, 1996, between Manager and the
1290 Borrower and the Management and Leasing Agreement, dated as of October 10,
1996, between Manager and 237 Park Borrower.
"Rating Agencies" means Standard & Poor's Rat- ings Services
("S&P"), Duff & Xxxxxx Credit Rating Co., Xxxxx'x Investors Services, Inc.
("Moody's") or Fitch Investor Services, L.P. or, if such corporations shall for
any reason no longer perform the functions of a securities rating agency, any
other nationally recognized statistical rating agency designated by the Agent.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REIT" shall mean Metropolis Realty Trust, Inc. or other entity
which will be the 95% general partner of the Lower Tier LP, the organization,
ownership, capital structure and documentation of which trust or other entity
shall be satisfactory to the Agent.
"Release" means any release, spill, emission, leaking, pumping,
pouring, dumping, emptying, deposit, discharge, leaching or migration.
"Release Date" has the meaning set forth in Section 2.9(d).
20
"Released Property" has the meaning set forth in Section 2.9(d).
"Release Price" means as of the applicable Release Date (i) with
respect to the 237 Park Property, an amount equal to 1.10 times the 237 Park
Allocated Loan Amount, as such 237 Park Allocated Loan Amount has been reduced,
as of such date, by payments of the Monthly Amount allocated to the 237 Park
Property and voluntary prepayments made more than ninety (90) days prior to such
Release Date and applied to the 237 Park Allocated Loan Amount and involuntary
prepayments applied by Agent (e.g. casualty proceeds) to the 237 Park Allocated
Loan Amount and (ii) with respect to the 1290 Property, an amount equal to 1.10
times the 1290 Allocated Loan Amount, as such 1290 Allocated Loan Amount has
been reduced, as of such date, by payments of the Monthly Amount allocated to
the 1290 Property and voluntary prepayments made more than ninety (90) days
prior to such Release Date and applied to the 1290 Allocated Loan Amount and
involuntary prepayments applied by Agent (e.g. casualty proceeds) to the 1290
Allocated Loan Amount.
"Rentals" has the meaning set forth in Section
2.14(a).
"Required Lenders" means at any time Lenders holding Notes
evidencing at least 51% of the aggregate unpaid principal amount of the Notes
held by Lenders which are entitled to vote pursuant to the terms hereof.
"Requirements" means all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, injunctions, rules, regulations and
requirements of every Governmental Authority having jurisdiction over either
Property and all restrictive covenants applicable to either Property.
"Reserve Portion" has the meaning set forth in
Section 2.9(e).
"Xxxxxxxx Note" means the promissory note in favor of O&Y Financial
Company made by Robinson, Silverman, Xxxxxx, Xxxxxxxx & Xxxxxx dated as of April
1, 1989 in the original principal amount of $6,500,000.
21
"Second Loan Year" means the twelve month period commencing on the
first anniversary of the Closing Date.
"Senior Debt" has the meaning set forth in Section 9.17(c)(iv).
"Settlement Agreement" has the meaning set forth in Section 3.1(m).
"Single Purpose Entity" means a Person, other than an individual,
which is formed or organized for the purpose of holding, directly, an ownership
interest in a Property or a Borrower, does not engage in any business unrelated
to a Property, does not have any material assets other than those related to its
interest in a Property or a Borrower or any indebtedness for borrowed money
other than as permitted by this Agreement, has its own separate books and
records, maintains customary formalities with regard to its existence (in
corporate or partnership form) and has its own accounts which are separate and
apart from the books and records and accounts of any other Person, and holds
itself out as being a Person, separate and apart from any other Person.
"Solvent" as to any Person means that such Person is not "insolvent"
within the meaning of Section 101(32) of the Bankruptcy Code or Section 271 of
the Debtor and Creditor Law of the State of New York.
"Subordinated Debt" has the meaning set forth in Section 9.17(c)(v).
"Subsidiary" means, with respect to any Person, at any date, any
corporation or other entity which is directly or indirectly controlled by such
Person and of which at least fifty-one percent (51%) of the outstanding shares
of capital stock or other equity interests having ordinary voting power is at
the time, directly or indirectly, owned by such Person, including, without
limitation, any subsidiaries which are consolidated with such Person for GAAP
purposes.
"Super Required Lenders" means at any time Lenders holding Notes
evidencing at least 662/3% of the aggregate unpaid principal amount of the Notes
held by
22
Lenders which are entitled to vote pursuant to the terms hereof.
"Swap Agreement" means the interest rate exchange transaction
pursuant to the Master Agreement, dated as of the date hereof, between the
Counterparty and the Borrowers, as it may be amended, modified, extended or
supplemented, with the consent of the Agent, from time to time, and any similar
interest rate exchange, cap, collar or floor agreement subsequently entered into
by Borrowers and pledged to Agent pursuant to the Swap Pledge, the term of which
shall be the same as the Term.
"Swap Pledge" means the Interest Rate Agreement Pledge and Security
Agreement, dated as of the date hereof, between the Borrowers, as pledgor, and
the Agent, as pledgee, and consented to by the Counterparty to the Swap
Agreement, as it may be amended, modified, extended or supplemented from time to
time.
"Syndication Period" has the meaning set forth in Section 9.6(b).
"Tenant" has the meaning set forth in the Mortgage.
"Tenant Expenses" means the costs of brokerage commissions, legal
fees, fees to other outside consultants (and such other costs as provided for in
the Budget) paid in connection with tenant leases of space in the Buildings.
"Tenant Improvements" means tenant improvement work to be funded by
Borrowers pursuant to the terms of the Budget in connection with tenant leases
of space in the Buildings.
"Tenant Work Allowances" means any allowances (including free rent
periods) to be paid to the tenants of the Buildings by the Borrowers pursuant to
any initial Lease, regardless of their intended purpose or use.
"Term" has the meaning set forth in Section 2.8(a).
"Termination Date" has the meaning set forth in Section 2.8(a).
23
"Third Loan Year" means the twelve month period commencing on the
second anniversary of the Commencement Date.
"Title Insurer" means, collectively, First American Title Insurance
Company of New York, Chicago Title Insurance Company, Commonwealth Land Title
Insurance Company, Fidelity National Title Insurance Company of New York,
Xxxxxxx Title Insurance Company of New York, Lawyers Title Insurance Corporation
and Old Republic National Title Insurance Company of New York.
"Title Policy" has the meaning set forth in Section 3.1(ee).
"Transactions" means each of the transactions contemplated by the
Loan Documents.
"Transfer" means, without limitation, a sale, assignment,
contribution, bequest, conveyance, transfer, disposition, mortgage, pledge,
grant of security interest, hypothecation, or encumbrance whether by operation
of law or otherwise.
"1290 Allocated Loan Amount" has the meaning set forth in Section
2.1.
"1290 Borrower" means 1290 Partners, L.P., a Delaware limited
partnership, the owner of the fee simple title to the 1290 Property.
"1290 Permitted Liens" means Permitted Liens that affect only the
1290 Property.
"1290 Property" has the meaning ascribed to it in the Mortgage.
"237 Park Allocated Loan Amount" has the meaning set forth in
Section 2.1.
"237 Park Borrower" means 237 Park Partners, L.P., a Delaware
limited partnership, the owner of the fee simple title to the 237 Park Property.
"237 Park Permitted Liens" means Permitted Liens that affect only
the 237 Park Property.
24
"237 Park Property" has the meaning ascribed to it in the Mortgage.
"UCC Searches" has the meaning set forth in Section 3.1(cc).
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Upper Tier LP" means 237/1290 Upper Tier Associates, L.P., a
Delaware limited partnership, which is the five percent (5%) limited partner of
the Lower Tier LP.
"Warburg Note" means the promissory note in favor of O&Y Equity
Corp., Olympia & York Holdings Corp. and Fame Associates, as tenants in common,
made by X.X. Xxxxxxx Xxxxxx & Co., Inc., dated August 20, 1985 in the original
principal of $4,354,758.09.
SECTION 1.2 Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP as
in effect from time to time, applied on a basis consistent (except for changes
concurred in by the Borrowers' independent public accountants); provided that,
if the Borrowers notify the Agent that the Borrowers wish to amend any covenant
in Article V to eliminate the effect of any change in GAAP on the operation of
such covenant (or if the Agent notifies the Borrowers that the Required Lenders
wish to amend Article
25
V for such purpose), then the Borrowers' compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to the Borrowers and the Required Lenders.
ARTICLE II
THE CREDITS
SECTION 2.1 Commitments to Lend. Each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make the Loan to Borrowers
in accordance with the amount of its Commitment on the Closing Date. The Loan
shall be in the principal amount of Four Hundred Twenty Million Dollars
($420,000,000) (the "Loan Amount") of which Two Hundred Fifty Million
($250,000,000) shall be allocated to the 1290 Property (the "1290 Allocated Loan
Amount") and One Hundred Seventy Million ($170,000,000) shall be allocated to
the 237 Park Property (the "237 Park Allocated Loan Amount"). The Loan shall be
made from the several Lenders ratably in proportion to their respective
Commitments. The proceeds of the Loan shall be disbursed to Borrowers on the
Closing Date, subject to the provisions of this Agreement. The Loan will be
evidenced by the Notes (as provided in Section 2.4) and secured by the Mortgage.
SECTION 2.2 Method of Electing Interest Rates. (a) The Loan shall bear
interest initially at the type of rate or rates specified by the Borrowers in
the Initial Notice of Interest Rate Election delivered no less than three (3)
Euro-Dollar Business Days prior to the Closing Date. Thereafter, the Borrowers
may from time to time elect to change or continue the type of interest rate
borne by each Group of Loans (subject in each case to the provisions of Article
VIII), as follows:
(i) if such Loan Tranches are Alternate Base Rate Loans, the
Borrowers may elect to convert such Loan Tranches to Euro-Dollar Loans as of any
Euro-Dollar Business Day;
(ii) if such Loan Tranches are Euro-Dollar Loans, the Borrowers may
elect to convert such Loan Tranches to Alternate Base Rate Loans or elect to
contin-
26
ue such Loan Tranches as Euro-Dollar Loans for an additional Interest Period, in
each case effective on the last day of the then current Interest Period
applicable to such Loan Tranches.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent at least three (3) Euro-Dollar Business Days before
the conversion or continuation selected in such notice is to be effective
(unless the relevant Loan Tranches are to be continued as Alternate Base Rate
Loans, in which case such notice shall be delivered to the Agent at least three
(3) Domestic Business Days before such continuation is to be effective). A
Notice of Interest Rate Election may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loan Tranches
comprising such Group, (ii) the portion to which such Notice applies, and the
remaining portion to which it does not apply, are each $5,000,000 or any larger
multiple of $100,000, (iii) there shall be no more than six (6) Loan Tranches
comprised of Euro-Dollar Loans outstanding at any time, (iv) no Loan Tranche may
be continued as, or converted into, a Euro-Dollar Loan when any Event of Default
has occurred and is continuing, and (v) no Interest Period shall extend beyond
the Termination Date.
(b) Each Notice of Interest Rate Election (including the Initial
Notice of Interest Rate Election) shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable clause of
subsection (a) above;
(iii) if the Loan Tranches comprising such Group are to be
converted, the new type of Loan Tranches and, if such new Loan Tranches are
Euro-Dollar Loans, the duration of the initial Interest Period applicable
thereto; and
27
(iv) if such Loan Tranches are to be continued as Euro-Dollar Loans
for an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrowers pursuant to subsection (a) above, the Agent shall promptly notify each
Lender the same day as it receives such Notice of Interest Rate Election of the
contents thereof and such notice shall not thereafter be revocable by the
Borrowers. If the Borrowers fail to deliver a timely Notice of Interest Rate
Election to the Agent for any Group of Euro-Dollar Loans, such Euro-Dollar Loans
shall be converted into Alternate Base Rate Loans on the last day of the then
current Interest Period applicable thereto.
SECTION 2.3 Notice to Lenders; Funding of Loan.
(a) The Agent shall give the Lenders not less than three (3)
Domestic Business Days prior written notice of the Closing Date.
(b) Not later than 12:00 Noon (New York City time) on the Closing
Date, each Lender shall make available its Commitment, in Federal or other funds
immediately available in New York City, to the Agent at its address referred to
in Section 9.1. Unless the Agent determines that any applicable condition
specified in Article III has not occurred, the Agent will make the funds
(subject to the provisions of Section 2.1) so received from the Lenders
available to the Borrowers at the Agent's aforesaid address on or before 1:00
P.M. (New York City time) on the Closing Date. Notwithstanding the foregoing,
Agent hereby agrees to fund any Commitment not funded by any Lender on the
Closing Date provided any applicable condition specified in Article III hereof
has occurred.
SECTION 2.4 Promissory Notes.
(a) The Loan shall be evidenced by the Notes, each of which shall be
payable to the order of each Lender for the account of its Applicable Lending
Office in an amount equal to each such Lender's Commitment.
28
(b) Upon receipt of each Lender's Note pursuant to Section 3.1(a),
the Agent shall forward such note to such Lender. Each Lender shall record the
date, amount, type and maturity of the portion of the Loan made by it and the
date and amount of each payment of principal made by the Borrowers with respect
thereto, and may, if such Lender so elects in connection with any transfer or
enforcement of its Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding; provided that the failure of any Lender to make any
such recordation or endorsement shall not affect the obligations of the
Borrowers hereunder or under the Notes. Each Lender is hereby irrevocably
authorized by the Borrowers so to endorse its Note and to attach to and make a
part of its Note a continuation of any such schedule as and when required.
SECTION 2.5 Maturity of the Loan. The Loan shall mature, and the
outstanding principal balance thereof shall be due and payable, on the
Termination Date.
SECTION 2.6 Interest Rates.
(a) Each Alternate Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Alternate
Base Rate Loan is made until it becomes due, at a rate per annum equal to the
Alternate Base Rate for such day. Such interest shall be payable for each
Interest Period on the last Domestic Business Day thereof and, with respect to
the principal amount of any Alternate Base Rate Loan converted to a Euro-Dollar
Loan, on each date an Alternate Base Rate Loan is so converted, for the period
through the day immediately preceding the date of such conversion. Any overdue
principal of or interest on any Alternate Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the sum
of 3% plus the Alternate Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin plus the
Adjusted London Interbank Offered Rate applicable to such Interest Period. Such
interest shall be payable on the last Euro-Dollar Business Day of each Interest
Period, except that with respect to any Interest Period that
29
is longer than one month, interest shall be payable on the last Euro-Dollar
Business Day of each one (1) month period. Any overdue principal of or interest
on any Euro-Dollar Loan shall bear interest, payable on demand, for each day
until paid, at a rate per annum equal to the sum of 3% plus the Alternate Base
Rate for such date.
"Euro-Dollar Margin" means 1.565%
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the product arrived at by
multiplying the London Interbank Offered Rate applicable to such Interest Period
by a fraction (expressed as a decimal, and hereinafter referred to as the
"Euro-Dollar Reserve Percentage"), the numerator of which shall be the number
one and the denominator of which shall be the number one minus the aggregate
reserve percentages (expressed as a decimal) from time to time established by
the Board of Governors of the Federal Reserve System of the United States and
any other banking authority to which the Agent is now or hereafter subject,
including, but not limited to any reserve on Eurocurrency Liabilities as defined
in Regulation D of the Board of Governors of the Federal Reserve System of the
United States at the ratios provided in such Regulation from time to time, it
being agreed that each Euro- Dollar Loan shall be deemed to constitute
Eurocurrency Liabilities, as defined by such Regulation, and it being further
agreed that such Eurocurrency Liabilities shall be deemed to be subject to such
reserve requirements without benefit of or credit for prorations, exceptions or
offsets that may be available to the Agent from time to time under such
Regulation and irrespective of whether the Agent actually maintains all or any
portion of such reserve.
The "London Interbank Offered Rate" applicable to a particular
Interest Period shall mean a rate per annum equal to the rate for U.S. dollar
deposits with maturities comparable to such Interest Period which appears on
Telerate Page 3750 as of 11:00 a.m., London time, two (2) Euro-Dollar Business
Days prior to the commencement of such Interest Period, provided, however, that
if such rate does not appear on Telerate Page 3750, the "London Interbank
Offered Rate" applicable to a particular Interest Period shall mean a rate per
annum equal to the rate at which U.S. dollar deposits in an amount approximately
equal to the applicable Euro-Dollar
30
Loan(s), and with maturities comparable to the last day of the Interest Period
with respect to which such London Interbank Offered Rate is applicable, are
offered in immediately available funds in the London Interbank Market to the
London office of the Agent by leading banks in the Eurodollar market at 11:00
a.m., London time, two (2) Euro-Dollar Business Days prior to the commencement
of the Interest Period to which such London Interbank Offered Rate is
applicable.
"Telerate Page 3750" means the display designated as "Page 3750" on
the Associated Press-Dow Xxxxx Telerate Service (or such other page as may
replace Page 3750 on the Associated Press-Dow Xxxxx Telerate Service or such
other service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Banker's Association
interest settlement rates for U.S. Dollar deposits). Any London Interbank
Offered Rate determined on the basis of the rate displayed on Telerate Page 3750
in accordance with the provisions hereof shall be subject to corrections, if
any, made in such rate and displayed by the Associated Press-Dow Xxxxx Telerate
Service within one hour of the time when such rate is first displayed by such
Service.
(c) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to Borrowers and the
participating Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
SECTION 2.7 Fees. All fees set forth in the Fee Letter shall be deemed to
have been earned on the date set forth in the Fee Letter in accordance with the
provisions thereof and shall be non-refundable. The obligation of Borrowers to
pay such fees in accordance with the provisions of the Fee Letter shall be
binding upon Borrowers regardless of whether the Loan is actually made. Except
as set forth in the Fee Letter or as otherwise specifically set forth in this
Agreement, the Mortgage, any other Loan Document or elsewhere in writing, there
are no other fees payable by Borrowers in connection with the transactions
contemplated hereby.
SECTION 2.8 Amortization of Principal; Mandatory Termination or Prepayment
of Loans.
31
(a) The term (the "Term") of the Loan shall terminate on October 10,
2001 (the "Termination Date"). If the Loan is outstanding on the Termination
Date, the same shall be due and payable (together with accrued interest thereon)
on the Termination Date, and Borrowers shall repay the same in full.
(b) Subject to the provisions of Section 2.11 hereof, commencing on
the First Payment Date and continuing until the Termination Date, on each
Payment Date, Borrowers shall make forty-eight (48) installments of principal in
the applicable Monthly Amount. Each monthly installment of principal shall be
due and payable on each Payment Date and shall be applied to the principal due
hereunder as allocated in the definition of "Monthly Amount".
(c) If a Termination Event or an Event of Default (as such terms are
defined in the Swap Agreement) has occurred under the Swap Agreement, payments
made by Borrowers to Agent hereunder shall be applied pro rata (based on the
outstanding balances then due) (i) to the principal due hereunder and (ii) to
the Counterparty for any payments due under the Swap Agreement as a result of
such Termination Event or Event of Default.
(d) Notwithstanding anything to the contrary contained in Section
2.8(b) above, in the event that any scheduled amortization payment required
pursuant to Section 2.8(b) would, in the reasonable opinion of counsel to the
Borrowers (which opinion may be based on financial projections provided by
Borrowers and which are reasonably satisfactory to Agent), cause the Borrowers
to fail to comply with the requirements of Section 857(a)(1)(A) of the Internal
Revenue Code with respect to such fiscal year, the Borrowers shall be permitted,
upon ten (10) Domestic Business Days prior written notice to the Agent, in lieu
of making such scheduled amortization payment, to deliver to the Agent a Letter
of Credit in the amount of such scheduled amortization payment (each such Letter
of Credit, a "Principal Letter of Credit") which Principal Letter of Credit
shall permit Agent to draw the entire amount of such Letter of Credit upon the
earlier to occur of an Event of Default hereunder or the Termination Date and
which Letter of Credit shall be appropriately reduced to reflect the release of
either Property pursuant to Section 2.9(d). In the event that on any Payment
Date, Borrowers shall deliver a Principal
32
Letter of Credit in lieu of making a scheduled amortization payment, the
outstanding principal balance of the Loan shall not be reduced until such time
as (i) provided an Event of Default is then occurring, the Agent draws the
entire amount of such Principal Letter of Credit (which amounts may be applied
at Agent's discretion to obligations other than the outstanding principal
balance of the Loan, as provided in Section 6.2 hereof) or (ii) on any
subsequent Payment Date, the Borrowers deliver immediately available funds to
Agent in the face amount of such Principal Letter of Credit (in which event the
Agent shall return such Principal Letter of Credit to the Borrowers).
(e) If at any time from and after the Closing Date, Permitted Owners
shall, in the aggregate, own less than thirty percent (30%) of the outstanding
shares of common stock of the REIT, then, upon notice of such event by the Agent
upon the written direction of the Required Lenders to the Borrowers, the
Commitments shall terminate and the Borrowers shall be required to prepay the
Loan and any other Obligations in their entirety on the Mandatory Prepayment
Date as if the Mandatory Prepayment Date were the Termination Date (such event
being a "Mandatory Prepayment Event"). The "Mandatory Prepayment Date" shall be
the date which is 180 days after the Agent's notice provided, however, that if
such condition shall not have occurred more than one prior time within the
eighteen (18) month period prior to the Agent's notice thereof to the Borrowers,
then the Mandatory Prepayment Event shall not be deemed to have occurred if
Permitted Owners shall own not less than 30% of the REIT stock at any time prior
to the expiration of such one hundred eighty (180) day period, in which event
the Termination Date shall be reinstated as the maturity date of the Loan. The
Borrowers shall make such prepayment on the Mandatory Prepayment Date together
with interest accrued to the date of the prepayment on the principal amount
prepaid together with all other Obligations. Notwithstanding the foregoing, the
Mandatory Prepayment Date (as so extended, the "Extended Mandatory Prepayment
Date") shall be extended for a period of ninety (90) days provided the Borrowers
shall deliver to Agent prior to the Mandatory Prepayment Date a binding
commitment (subject only to customary conditions) from one or more Institutional
Lenders to refinance the Loan in its entirety, which commitment shall be
satisfactory to Agent in its sole discretion. Notwithstanding anything to the
con-
33
trary contained herein, upon the third occurrence of a Mandatory Prepayment
Event within any eighteen (18) month period, the Borrowers shall be required to
prepay the Loan in its entirety on or before the Mandatory Prepayment Date, as
such date may be extended for ninety (90) days as provided above, and the
Borrowers shall have no right to cure such Mandatory Prepayment Event as
provided above.
SECTION 2.9 Optional Prepayments; Property Release.
(a) The Borrowers may, upon at least five (5) Domestic Business
Days' notice to the Agent, prepay, without premium or penalty, any Alternate
Base Rate Loan in whole at any time, or from time to time in part, in amounts
aggregating at least Five Hundred Thousand Dollars ($500,000), by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Alternate Base Rate Loans of the several Lenders included in such
Borrowing and shall be applied in inverse order of maturity of such Loans pro
rata to each of the 237 Park Allocated Loan Amount and the 1290 Allocated Loan
Amount until such time as the Loan is repaid in full.
(b) Subject to Section 2.11, Borrowers may, upon at least five (5)
Euro-Dollar Business Days' notice to the Agent, prepay without premium or
penalty, any Euro-Dollar Loan in whole at any time, or from time to time in
part, in amounts aggregating at least Five Hundred Thousand Dollars ($500,000)
by paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment and Borrowers shall also pay any applicable
expenses pursuant to Section 2.11. Each such optional prepayment shall be
applied to prepay ratably the Euro-Dollar Loans of the several Lenders included
in such borrowing and except as provided in Section 2.9(e), shall be applied in
inverse order of maturity of such Loans pro rata to each of the 237 Park
Allocated Loan Amount and the 1290 Allocated Loan Amount until such time as the
Loan is repaid in full.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Lender of the contents thereof and of such
Lender's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by Borrowers.
34
(d) Except as set forth in this Section 2.9(d), no repayment of
principal of any Note shall cause, give rise to a right to require or otherwise
result in, the release of the Lien of the Mortgage on any Property. The
Borrowers may obtain the release (in whole, but not in part) of one of the
Properties (as selected by Borrowers in their sole discretion) from the Lien of
the Mortgage and the Assignment of Leases upon satisfaction of the applicable
conditions in this Section 2.9(d) and each of the following conditions (such
Property, the "Released Property"):
(i) immediately prior to and after giving effect to the
proposed release, no Event of Default or Default pursuant to
Section 6.1(i) shall have occurred and be continuing or
Mandatory Prepayment Event shall have occurred and be
continuing;
(ii) not later than 12:00 Noon (New York City time) on the
date of such release (any such date, the "Release Date"), the
Borrowers deliver by wire transfer to the Agent, in Federal or
other funds immediately available in New York City, the
applicable Release Price together with all interest accrued
and unpaid thereon;
(iii) not later than 12:00 Noon (New York City time) on the
date of such release, the Borrowers shall deliver by wire
transfer to the Agent, in Federal or other funds immediately
available in New York City, any amounts due to the Agent and
the Lenders pursuant to Section 2.11 together with any other
fees and reasonable out-of pocket expenses (including Agent's
reasonable attorneys' fees and disbursements) incurred in
connection with such release then due and payable hereunder;
(iv) not later than fifteen (15) Domestic Business Days prior
to the date of such release, a notice to the Agent specifying
or including the following:
(A) the Property to be released;
35
(B) the Release Price;
(C) the date of the release (which shall be
irrevocable);
(D) an Officer's Certificate certifying that the
conditions under this Agreement to such release will be
satisfied on the date of such release (which Officer's
Certificate shall be updated and delivered to the Agent
on the date of such release); (E) all documentation
required to be delivered by this Agreement to Agent to
effect such release, together with an Officer's
Certificate certifying that such documentation (x) is in
compliance with all Requirements (as defined in the
Mortgage) and (y) will effect such release in accordance
with the terms of this Agreement; and
(v) on the release date, the Borrowers shall deliver to the
Agent a paid endorsement to the Title Policy confirming (in
the Agent's sole satisfaction) that the release of the
Released Property shall not affect the Lien of the Mortgage on
the Property which is not released.
In the event the Released Property is the 1290 Property, in addition
to releasing the Lien of the Mortgage and the Assignment of Leases with respect
to the 1290 Property, Agent shall also release (i) the 1290 Borrower with
respect to the Notes and the other Loan Documents other than matters relating to
the 1290 Property stated to survive the repayment of the Loan, (ii) the Lien of
the Note Pledge with respect to the Xxxxxxxx Note (and shall return the Xxxxxxxx
Note to the 1290 Borrower), (iii) any funds held in the Expiring Lease Costs
Reserve Sub-Account (or Letters of Credit, if any, held in lieu of such funds)
in excess of Six Million Dollars ($6,000,000), other than any Reserve Portion to
be held in accordance with Section 2.9(e) hereof and (iv) any funds held in the
Imposition Sub-Account and the Insurance Sub-Account (as such terms are defined
in the Cash Collateral Agreement) relating to the 1290 Property.
36
In the event the Released Property is the 237 Park Property, in
addition to releasing the Lien of the Mortgage and the Assignment of Leases with
respect to the 237 Park Property, Agent shall also release (i) the 237 Park
Borrower with respect to the Notes and the other Loan Documents other than
matters relating to the 237 Park Property stated to survive the repayment of the
Loan, (ii) the Lien of the Note Pledge with respect to the Warburg Note (and
shall return the Warburg Note to the 237 Park Borrower), (iii) any funds held in
the Expiring Lease Costs Reserve Sub-Account (or Letters of Credit, if any, held
in lieu of such funds) in excess of Nine Million Dollars ($9,000,000) and (iv)
any funds held in the Imposition Sub-Account and the Insurance Sub-Account
relating to the 237 Park Property.
(e) In the event of a release of a Property pursuant to Section
2.9(d), the Release Price shall be applied as follows:
(i) Notwithstanding anything to the contrary contained herein,
in the event the 1290 Property is the Property that is released from
the Lien of the Mortgage, the Agent with the consent of the Required
Lenders shall have the option, exercisable on the date of such
release, to require that up to Ten Million Dollars ($10,000,000) of
the Release Price (such amount, being the "Reserve Portion") be
deposited into the Expiring Lease Costs Reserve Sub- Account of the
Cash Collateral Account as additional collateral for the Loan, to be
disbursed pursuant to the terms of the Cash Collateral Agreement.
Notwithstanding the foregoing, in the event (A) such release is
consummated either (x) prior to the third anniversary of the Closing
Date or (y) subsequent to the date that the Expiring Lease Costs
have been fully funded (as determined by the Agent in its sole
discretion) or (B) at anytime after such release, the Expiring Lease
Costs have been fully funded (as determined by the Agent in its sole
discretion), provided no Event of Default has occurred and is then
continuing, the remaining Reserve Portion shall be applied to the
then outstanding Loan Amount; and
37
(ii) provided no Event of Default has occurred and is then
continuing, the remaining Release Price (less the Reserve Portion,
if any) shall be applied by the Agent to reduce the outstanding
principal amount of the Loan in accordance with Section 2.10 of this
Agreement.
(f) Any amounts so prepaid pursuant to this Section 2.9 may not be
reborrowed or reinstated.
SECTION 2.10 General Provisions as to Payments.
(a) The Borrowers shall make each payment of principal of, and
interest on, the Loan not later than 12:00 Noon (New York City time) on the date
when due, in Federal or other funds immediately available in New York City, to
the Agent at its address referred to in Section 9.1. The Agent will distribute
to each Lender on the same day as receipt its ratable share of each such payment
received by the Agent for the account of the Lenders. Whenever any payment of
principal of, or interest on, the Alternate Base Rate Loans or of fees shall be
due on a day which is not a Domestic Business Day, the date for payment thereof
shall be extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business Day. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrowers
prior to the date on which any payment is due to the Lenders hereunder that the
Borrowers will not make such payment in full, the Agent may assume that the
Borrowers has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrowers shall not have so made such payment, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender
together with interest there-
38
on, for each day from the date such amount is distributed to such Lender until
the date such Lender repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.11 Funding Losses. If the Borrowers make any payment of
principal with respect to any Euro-Dollar Loan (pursuant to Sections 2.8, 2.9,
Article VI or VIII or otherwise) on any day other than the last day of the
Interest Period applicable thereto, or if the Borrowers fail to borrow or prepay
any Euro-Dollar Loans after notice has been given to any Lender in accordance
with Sections 2.3(a), 2.8 or 2.9, the Borrowers shall reimburse each Lender
within fifteen (15) days after demand for any resulting loss or expense
reasonably incurred by it as reasonably determined by such Lender, including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment or conversion or failure to borrow or prepay, provided that
such Lender shall have delivered to the Borrowers a certificate setting forth in
reasonable detail the calculation as to the amount of such loss or expense,
which certificate shall be conclusive in the absence of manifest error.
SECTION 2.12 Computation of Interest and Fees. Interest based on the Prime
Rate hereunder shall be computed on the basis of a year of 365 days (or 366 days
in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and fees shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
SECTION 2.13 Intentionally Omitted.
SECTION 2.14 Cash Collateral Account.
(a) Concurrently with the execution of this Agreement and the other
Loan Documents, the Borrowers and the Agent are entering into the Cash
Collateral Agreement. Commencing on the Closing Date and continuing throughout
the Term, the Borrowers shall direct and cause all Tenants making payments under
their Leases and all other Persons making payments to the Borrowers (other than
capital contributions or loans made by the partners to the Borrowers), whether
constituting rents, royalties,
39
issues, profits, insurance proceeds (except as otherwise provided in the
Mortgage), condemnation proceeds, refunds, rebates, escalations, option
payments, applications of security deposits, collection proceeds and other
payments of whatever type or nature, foreseen or unforeseen (collectively,
"Rentals") whether such Rentals are in payment of past, present or future Rental
obligations, to make such payments directly to the Agent for deposit in the Cash
Collateral Account to be disbursed pursuant to the terms of the Cash Collateral
Agreement.
(b) Concurrently with the execution of this Agreement and the other
Loan Documents, the Borrowers are delivering to the Agent for deposit in the
Cash Collateral Account to be disbursed pursuant to the terms of the Cash
Collateral Agreement any and all funds and to the extent not deposited for
collection or negotiated, all checks, drafts and other instruments, in each case
received on account of payments of Rentals which are in the Borrowers'
possession or control whether or not such payments are for past (other than
Rentals due prior to the Closing Date), present or future Rental obligations.
(c) All disbursements from the Sub-Accounts (as defined in the Cash
Collateral Agreement) established pursuant to the Cash Collateral Agreement
shall be made in accordance with the terms of the Cash Collateral Agreement.
SECTION 2.15 Expiring Lease Costs Reserve.
(a) Commencing in the Fourth Loan Year, Borrowers shall deposit
fifty percent (50%) of the Net Cash Flow for the first month thereof and for
each month thereafter during the remainder of the Term into a reserve
sub-account of the Cash Collateral Account (the "Expiring Lease Costs Reserve
Sub-Account") on the fifteenth day of the next succeeding month; provided that
if the fifteenth day of any month is not a Domestic Business Day, the next
succeeding Domestic Business Day of such month, until the balance of the
Expiring Lease Costs Reserve Sub-Account shall total Fifteen Million Dollars
($15,000,000) in the aggregate (subject to the terms of Section 2.9(d) hereof
and the terms of the Cash Collateral Agreement). All amounts deposited into the
Expiring Lease Costs Reserve Sub-Account shall be held in the Expiring Lease
Costs Reserve Sub-Account pursuant to the terms of the Cash Collateral
Agreement, as additional
40
security for the Loan, and shall be disbursed by Agent only for such Expiring
Lease Costs as have been approved by the Agent in its reasonable discretion or
as otherwise provided in the Cash Collateral Agreement.
(b) Notwithstanding the foregoing, the Borrowers shall have the
right, in lieu of making the cash deposit required pursuant to Section 2.15(a)
above, to deliver a Letter of Credit in the amount of 50% of the Net Cash Flow
for such month and Borrowers may at any time during the Fourth Loan Year and the
Fifth Loan Year, deliver to Agent a Letter of Credit in substitution for cash on
deposit in the Expiring Lease Costs Reserve Sub- Account (each such Letter of
Credit, a "Cash Flow Letter of Credit"), to be held as additional security for
the Loan, which Cash Flow Letter of Credit shall permit Agent to draw the entire
amount of such Cash Flow Letter of Credit upon the earlier to occur of an Event
of Default hereunder, the Termination Date, or at such time as may be necessary
to fund Expiring Lease Costs in accordance with the Cash Collateral Agreement.
In the event that at any time during the Term, the Borrowers deliver funds to
the Agent in the face amount of such Cash Flow Letter of Credit, provided no
Event of Default has occurred and is then continuing, the Agent shall return
such Cash Flow Letter of Credit to the Borrowers and shall deposit such funds
into the Expiring Lease Costs Reserve Sub-account.
ARTICLE III
CONDITIONS
SECTION 3.1 Closing. The closing hereunder shall occur on the date (the
"Closing Date") when each of the following conditions is satisfied (or waived by
the Agent), each document to be dated the Closing Date unless otherwise
indicated:
(a) each Borrower shall have executed and delivered to the Agent the
Notes for the account of each Lender dated on or before the Closing Date
complying with the provisions of Section 2.4;
(b) the Borrowers shall have executed and delivered to the Agent the
Mortgage;
41
(c) each Borrower shall have executed and delivered to the Agent
this Agreement;
(d) each Borrower and each General Partner shall have executed and
delivered to the Agent the Envi- ronmental Guaranty;
(e) each Borrower shall have entered into the Swap Agreement with
the Counterparty, for the Term;
(f) each Borrower shall have executed and delivered to the Agent the
Swap Pledge;
(g) each Borrower shall have executed and delivered to Agent the
Assignment of Leases and Rents;
(h) each Borrower shall have executed and delivered to the Agent the
Cash Collateral Agreement;
(i) each Borrower shall have executed and delivered to the Agent the
Note Pledge;
(j) the Borrowers shall have delivered the original Pledged Notes to
the Agent;
(k) the Manager and each Borrower shall have executed and delivered
to the Agent the Consent and Subordination of the Property Management Agreement;
(l) the Asset Manager and each Borrower shall have executed and
delivered to the Agent the Consent and Subordination of the Asset Management
Agreement;
(m) the Settlement Agreement, dated as of January 12, 1996 (the
"Settlement Agreement") with respect to the disposition of the Properties to the
Borrowers shall have been executed and delivered by all parties thereto and the
Agent shall have received an unappealable order of the United States Bankruptcy
Court for the Southern District of New York (the "Bankruptcy Court") in form and
substance reasonably satisfactory to the Agent approving the Settlement
Agreement;
(n) the Agent shall have received satisfactory executed estoppels
(in a form previously approved by Agent) from all Tenants leasing in the
aggregate 15,000 or more rentable square feet under one or more Leases;
42
(o) the Agent shall have received executed subordination and
attornment agreements (in a form previously approved by Agent) from the Tenants
set forth in Exhibit H attached hereto;
(p) the Agent shall have received an independent, third party "MAI"
appraisal for the Properties, performed in compliance with FIRREA, acceptable to
Agent in all respects, and stating an aggregate market value for the Properties
of not less than $600,000,000 and Borrowers shall have paid all costs incurred
in connection with such appraisal;
(q) the Agent shall have received an opinion of Battle Xxxxxx LLP,
counsel for Borrowers, acceptable to the Agent, the Lenders and their counsel;
(r) the Agent shall have received and approved all documents the
Agent may reasonably request relating to the existence of Borrowers, the Lower
Tier LP, the Upper Tier LP, the REIT and each General Partner, the authority for
this Agreement and the other Loan Documents, and any other matters relevant
hereto, all in form and substance reasonably satisfactory to the Agent; such
documentation shall include, without limitation, the certificates of limited
partnership and the partnership agreements of Borrowers, the Lower Tier LP and
the Upper Tier LP, as amended, modified or supplemented prior to the Closing
Date, certified to be true, correct and complete by the General Partners or the
REIT, as applicable, as of a date not more than ten (10) days prior to the
Closing Date, together with a good standing certificate from the Secretaries of
State (or the equivalent thereof) of New York (other than with respect to the
Upper Tier LP and the REIT) and Delaware and with respect to the REIT, Maryland,
to be dated not more than ten (10) days prior to the Closing Date, the
certificate of incorporation, and all amendments thereto, certified by the
Secretary of State of the State of Delaware or Maryland, as applicable, and
by-laws of each General Partner and the REIT certified by an officer thereof to
be true and complete together with a certificate of the Secretary of State (or
the equivalent thereof) of the State of Delaware or Maryland, as applicable, to
the effect that such corporation is in good standing therein, and resolutions of
the boards of directors of each General Partner and the REIT, authorizing the
transactions contemplated hereby;
43
(s) the Second Amended Joint Plan of Reorganization of 000 Xxxx
Xxxxxx Associates, L.L.C. and 1290 Associates, L.L.C. (the "Debtors") and the
Olympia & York Noteholders Ad Hoc Committee (the "Committee") shall have been
amended to provide for Borrowers' agreement to assume the obligations of the
Debtors and the Committee under the Fee Letter and the Commitment Letter or the
Borrowers shall have otherwise agreed to assume the obligations of the Debtors
and the Committee under the Fee Letter and the Commitment Letter;
(t) the Agent shall have received an order of the Bankruptcy Court
in form and substance reasonably satisfactory to the Agent approving the
transactions and provisions of the Fee Letter and the Commitment Letter;
(u) the Agent shall have received all certificates, agreements and
other documents and papers referred to in this Section 3.1 and Section 3.2,
unless otherwise specified, in sufficient counterparts, reasonably satisfactory
in form and substance to the Agent;
(v) the Agent shall have received and approved all information and
documentation necessary to evidence the organization, ownership and structure of
the REIT;
(w) the Escrow Sub-Account (as defined in the Cash Collateral
Agreement) shall have been funded in the amount of $5,508,000 in accordance with
the terms of the Cash Collateral Agreement;
(x) the Agent shall have received a copy of the Environmental Report
(as hereinafter defined) and shall be reasonably satisfied that the Borrowers
and the Properties are not subject to any present or contingent environmental
liability which could have a Material Adverse Effect;
(y) the Agent shall have received wire transfer instructions from
Borrowers in connection with the Loan to be made on the Closing Date;
(z) the Borrowers shall have entered into the Swap Agreement in form
and substance reasonably satisfactory to Agent.
(aa) the Agent shall have received copies of all material consents,
licenses and approvals, if any,
44
required as of the date hereof in connection with the execution, delivery and
performance by the Borrowers, and the validity and enforceability, of the Loan
Documents, or in connection with any of the transactions contemplated thereby,
and such consents, licenses and approvals shall be in full force and effect;
(bb) the Agent shall have received certificates of insurance
satisfying insurance coverages, amounts and other requirements set forth in
Section 5 of the Mortgage;
(cc) the Agent shall have received satisfactory reports of UCC
(collectively, the "UCC Searches"), tax lien, judgment and litigation searches
conducted by a search firm acceptable to the Agent with respect to the
Properties, the Borrowers, the Upper Tier LP, the Lower Tier LP and the REIT in
each of the locations reasonably specified by the Agent;
(dd) the Borrowers shall have executed and delivered to the Agent
UCC-1 financing statements, as debtor, naming the Agent as secured party;
(ee) the Agent shall have received in form and substance
satisfactory to the Agent a paid title insurance policy (the "Title Policy") on
mortgagee's ALTA Form 1992 (with a New York rider) provided by each Title
Insurer in such amounts as Agent shall reasonably approve, in the aggregate
amount of the Loan, insuring the Mortgage as of the Closing Date to be a valid
first lien on the Properties, free and clear of all defects and encumbrances
except Permitted Liens. The Title Policy shall contain:
(i) full coverage against mechanics' liens;
(ii) no survey exceptions not theretofore approved by the Agent and
its counsel; and
(iii) such endorsements as Agent shall require, including but not
limited to, endorsements with respect to extended coverage,
comprehensive, survey, tax lot, variable rate, usury, doing
business, tie-in, creditors' rights and first loss;
45
(ff) the Agent shall have received a visually inspected and redated
survey of the Properties acceptable to the Agent, certified to Borrowers, the
Agent and Title Insurer in a form satisfactory to Agent;
(gg) the Agent shall have received a copy of the Engineering Report
(as hereinafter defined) with respect to the Properties, satisfactory to the
Agent;
(hh) all representations and warranties of Borrowers set forth
herein shall be true and correct in all material respects;
(ii) the Agent shall have received an Initial Notice of Interest
Rate Election as required by Section 2.2;
(jj) the Agent shall have received and ap- proved the Property
Management Agreement;
(kk) the Agent shall have received and ap- proved the Asset
Management Agreement;
(ll) the Agent shall have received all Leases and received and
approved all Major Leases;
(mm) the Agent shall have received a valid Certificate of Occupancy
for each Property;
(nn) the Agent shall have received the Budget;
(oo) the Agent shall have received from the Borrowers executed
notices to Tenants notifying the Tenants that all Rentals shall be deposited
into the Collection Accounts; and
(pp) no event shall have occurred which could have a Material
Adverse Effect.
The Agent shall promptly notify Borrowers and the Lenders of the
Closing Date, and such notice shall be conclusive and binding on all parties
hereto.
46
ARTICLE IV
BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and each of the other Lenders which may
become a party to this Agreement to make the Loan, each Borrower makes the
following representations and warranties as of the Closing Date. Such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the other Loan Documents and the making
of the Loan.
SECTION 4.1 Existence and Power.
(a) Each Borrower is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware and has
all powers and all material governmental licenses, authorizations, consents and
approvals required to own its property and assets and carry on its business as
now conducted, or as it presently proposes to conduct it as of the date hereof,
and upon completion of its publication requirements (which Borrowers shall
complete with diligence) will be duly qualified to do business and in good
standing in the State of New York and in every other jurisdiction in which the
failure to be so qualified and/or in good standing is likely to have a Material
Adverse Effect.
(b) Each General Partner is a corporation duly formed, validly
existing and in good standing under the laws of the State of Delaware and has
all powers and all material governmental licenses, authorizations, consents and
approvals required to own its property and assets and carry on its business as
now conducted, or as it presently proposes to conduct it as of the date hereof,
and has been duly qualified to do business and is in good standing in the State
of New York, and in every other jurisdiction in which the failure to be so
qualified and/or in good standing is likely to have a Material Adverse Effect.
(c) The REIT is a corporation duly formed, validly existing and in
good standing under the laws of the State of Maryland and has all powers and all
material governmental licenses, authorizations, consents and approvals required
to own its property and assets and carry on its business as now conducted, or as
it present-
47
ly proposes to conduct it as of the date hereof, and has made application to
qualify to do business in the State of New York (which the REIT will complete
with due diligence) and is in good standing and in every other jurisdiction in
which the failure to be so qualified and/or in good standing is likely to have a
Material Adverse Effect.
(d) The Lower Tier LP is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware and has
all powers and all material governmental licenses, authorizations, consents and
approvals required to own its property and assets and carry on its business as
now conducted, or as it presently proposes to conduct it as of the date hereof,
and upon completion of its publication requirements (which the Lower Tier LP
shall complete with diligence) will be duly qualified to do business and is in
good standing in the State of New York, and in every other jurisdiction in which
the failure to be so qualified and/or in good standing is likely to have a
Material Adverse Effect.
(e) The Upper Tier LP is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware and has
all powers and all material governmental licenses, authorizations, consents and
approvals required to own its property and assets and carry on its business as
now conducted, or as it presently proposes to conduct it as of the date hereof,
and has been duly qualified to do business and is in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing is
likely to have a Material Adverse Effect.
SECTION 4.2 Power and Authority.
(a) Each Borrower has the full partnership power and authority to execute,
deliver and carry out the terms and provisions of each of the Loan Documents
applicable to such Borrower and has taken all necessary partnership action to
authorize the execution and delivery on behalf of such Borrower and the
performance by or on behalf of such Borrower of such Loan Documents. Each
Borrower has duly executed and delivered each Loan Document applicable to such
Borrower and each such Loan Document constitutes the legal, valid and binding
obligation of such Borrower,
48
enforceable in accordance with its terms, except as enforceability may be
limited by applicable insolvency, bankruptcy or other laws affecting creditors'
rights generally or general principles of equity, whether such enforceability is
considered in a proceeding in law or at law.
(b) Each General Partner has the full corporate power and authority to
execute, deliver and carry out the terms and provision of each of the Loan
Documents applicable to such General Partner to which it is a party and has
taken all necessary corporate action to authorize the execution and delivery on
behalf of such General Partner and the performance by or on behalf of such
General Partner of such Loan Documents. Each General Partner has duly executed
and delivered each Loan Document applicable to such General Partner and each
such Loan Document constitutes the legal, valid and binding obligation of such
General Partner, enforceable in accordance with its terms, except as
enforceability may be limited by applicable insolvency, bankruptcy or other laws
affecting creditors' rights generally or general principles of equity, whether
such enforceability is considered in a proceeding in law or at law.
SECTION 4.3 No Violation. Neither the execution, delivery or performance
by or on behalf of each Borrower of the Loan Documents, nor compliance by each
Borrower with the terms and provisions thereof nor the consummation of the
transactions contemplated by the Loan Documents (i) will contravene any
applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality or (ii) will
materially conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, the terms of any
material indenture, mortgage, deed of trust, or other agreement or other
instrument to which any Borrower (or of any partnership of which any Borrower is
a partner) is a party or to such Borrower's knowledge by which it or any of its
property or assets is bound or to which it is subject, or result in the creation
or imposition of (or the obligation to create or impose) any Lien (except
pursuant to the Loan Documents) upon any of the property or assets of a Borrower
or (iii) will cause a default by any Borrower under its partnership agreement.
SECTION 4.4 Intentionally Deleted.
49
SECTION 4.5 Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of either Borrower threatened against or affecting,
(i) any Borrower, (ii) the Loan Documents or any of the transactions
contemplated by the Loan Documents or (iii) either Property, before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could, individually, or in
the aggregate materially adversely affect the business, financial position or
results of operations of either Borrower or which in any manner draws into
question the validity or enforceability of this Agreement or the other Loan
Documents or the priority of the liens of the Mortgage, the Swap Pledge, the
Note Pledge or the Cash Collateral Agreement.
SECTION 4.6 Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could reasonably result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Internal Revenue Code, or
(iii) incurred any liability under Title IV of ERISA other than a liability to
the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.7 Environmental Compliance. To the best of each Borrower's
knowledge, except as set forth in the Phase I Environmental Site Assessments
prepared by AquaTerra, dated June 27, 1994, and the Phase I Environmental Site
Assessment Updates prepared by AquaTerra, dated April 15, 1996 (with respect to
the 237 Park Property), and April 16, 1996 (with respect to the 1290 Property),
and delivered to the Agent with respect to the Properties (the "Environmental
Report"), (i) there are in effect all Environmental Approvals which are required
to be obtained under all Environmental Laws with respect to each Property, (ii)
each Borrower is in compliance in all material respects with the terms and
conditions of all
50
such Environmental Approvals, and is also in compliance in all material respects
with all other Environmental Laws or any plan, order, decree, judgment,
injunction, notice or demand letter issued, entered or approved thereunder.
Except as set forth in the Environmental Report, to the best
knowledge of each Borrower:
i) There are no Environmental Claims or investigations pending or
threatened by any Governmental Authority with respect to any alleged
failure by either Borrower to have any Environmental Approval required in
connection with the conduct of the business of such Borrower on the
applicable Property, or with respect to any generation, treatment,
storage, recycling, transportation, Release or disposal of any Hazardous
Substances generated by the Borrowers or any lessee on either Property;
ii) No Hazardous Substance has been Released at either Property to
an extent that it may reasonably be expected to have a Material Adverse
Effect;
iii) No PCB (in amounts or concentrations which exceed those set by
applicable Environmental Laws) is present at either Property;
iv) No friable asbestos is present at either Property;
v) There are no underground storage tanks for Hazardous Materials,
active or abandoned, at either Property;
vi) No Environmental Claims have been filed with a Governmental
Authority with respect to either Property, and neither Property is listed
or proposed for listing on the National Priority List promulgated pursuant
to CERCLA, on CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
vii) There are no Liens arising under or pursuant to any
Environmental Laws on either Property, and no government actions have been
51
taken or are in process which could subject
either Property to such Liens; and
viii) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or on behalf of, or
which are in the possession of, any Borrower or any General Partner in
relation to either Property which have not been made available to the
Agent.
SECTION 4.8 Taxes. Each Borrower has filed all United States Federal
income tax returns and all other material tax returns which are required to be
filed by it and has paid all taxes due pursuant to such returns or pursuant to
any assessment received by such Borrower, other than those that are reserved
against in accordance with GAAP consistently applied and which are being
contested in good faith by appropriate proceedings. The charges, accruals and
reserves on the books of each Borrower in respect of taxes or other governmental
charges are, in the opinion of each Borrower, adequate given the circumstances
in which such items were taken or established, as the case may be.
SECTION 4.9 Full Disclosure. To the knowledge of the Borrowers, all
written information heretofore furnished by each Borrower and General Partner to
the Agent or any Lender for purposes of or in connection with this Agreement or
the Transactions is, and all such written information hereafter furnished by
Borrowers or any General Partner to the Agent or any Lender will be, true and
accurate in all material respects on the date as of which such information is
stated or certified. Each Borrower and each General Partner has disclosed to the
Lenders in writing any and all facts known to it which materially and adversely
affect or may materially and adversely affect the business, operations or
financial condition of either Borrower or the ability of either Borrower to
perform its respective obligations under this Agreement or the other Loan
Documents.
SECTION 4.10 Solvency. On the Closing Date and after giving effect to the
transactions contemplated by the Loan Documents occurring on the Closing Date,
each Borrower will be Solvent.
52
SECTION 4.11 Use of Proceeds; Margin Regulations. All proceeds of the Loan
will be used by the Borrowers only in accordance with the provisions hereof. No
part of the proceeds of the Loan will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock. Neither the making of the Loan nor the use of the proceeds
thereof will violate or be inconsistent with the provisions of Regulations G, T,
U or X of the Federal Reserve Board.
SECTION 4.12 Governmental Approvals. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with the
execution, delivery and performance of, any Loan Document or the consummation of
any of the transactions contemplated thereby, other than those that have already
been duly made or obtained and remain in full force and effect.
SECTION 4.13 Investment Company Act; Public Utility Holding Company Act.
Neither Borrower is (x) an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended, (y) a "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" of either a "holding company" or a "subsidiary
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (z) subject to any other federal or state law or regulation which
purports to restrict or regulate its ability to borrow money.
SECTION 4.14 Single Purpose Entity. Each Borrower
and each General Partner is a Single Purpose Entity.
SECTION 4.15 Patents, Trademarks, etc. Each Borrower has obtained and
holds in full force and effect all patents, trademarks, servicemarks, trade
names, copyrights and other such rights, free from burdensome restrictions,
which are necessary for the operation of its business as presently conducted. To
each Borrower's best knowledge, no material product, process, method, substance,
part or other material presently sold by or employed by any Borrower in
connection with such business infringes any patent, trademark, service xxxx,
trade name, copyright, license or other such right owned by any
53
other Person. There is not pending or, to each Borrower's best knowledge,
threatened, any claim or litigation against or affecting any Borrower contesting
its right to sell or use any such product, process, method, substance, part or
other material.
SECTION 4.16 Ownership of Property. The 1290 Borrower owns fee simple
title to the 1290 Property, subject only to the 1290 Permitted Liens. The 237
Park Borrower owns fee simple title to the 237 Park Property, subject only to
the 237 Park Permitted Liens.
SECTION 4.17 No Default. No Event of Default exists under or with respect
to any Loan Document and to the best knowledge of the Borrowers, no Default
exists under or with respect to any Loan Document. No Borrower is in default
beyond any applicable grace period under or with respect to any other material
agreement, instrument or undertaking to which it is a party or to its knowledge
by which it or any of its property is bound in any respect.
SECTION 4.18 Licenses, etc. The 1290 Borrower has obtained and holds in
full force and effect all franchises, licenses, permits, certificates,
authorizations, registrations, qualifications, accreditations, easements, rights
of way and other consents and approvals to own, use, occupy and operate the 1290
Property as a first-class office building with a retail component. The 237 Park
Borrower has obtained and holds in full force and effect all franchises,
licenses, permits, certificates, authorizations, registrations, qualifications,
accreditations, easements, rights of way and other consents and approvals to
own, use, occupy and operate the 237 Park Property as a first-class office
building with a retail component.
SECTION 4.19 Compliance With Law. Each Borrower and each Property are in
compliance with all laws, rules, regulations, orders, judgments, writs and
decrees, including, without limitation, all building and zoning ordinances and
codes.
SECTION 4.20 No Burdensome Restrictions. No Borrower is a party to any
agreement or instrument or subject to any other obligation or partnership
restriction, which, individually or in the aggregate, is likely to have a
Material Adverse Effect.
54
SECTION 4.21 Brokers' Fees. No Borrower has dealt with any broker or
finder with respect to the transactions contemplated by the Loan Documents or
otherwise in connection with this Agreement, and no Borrower has done any acts,
had any negotiations or conversation, or made any agreements or promises which
will in any way create or give rise to any obligation or liability for the
payment by any Borrower of any brokerage fee, charge, commission or other
compensation to any party with respect to the transactions contemplated by the
Loan Documents, other than the fees payable hereunder.
SECTION 4.22 Intentionally Omitted.
SECTION 4.23 Insurance. Each Borrower currently maintains all insurance
which is required to be maintained pursuant to the Mortgage.
SECTION 4.24 Security Interests and Liens. The Mortgage, the Assignment of
Leases and Rents, the Note Pledge, the Cash Collateral Agreement and the Swap
Pledge create, as security for the Obligations, valid and enforceable security
interests in and Liens on all of the Collateral in favor of the Agent as agent
for the ratable benefit of the Lenders, and subject to no other Liens (except
for Permitted Liens), except as enforceability may be limited by applicable
insolvency, bankruptcy or other laws affecting creditors' rights generally, or
general principles of equity, whether such enforceability is considered in a
proceeding in equity or at law. Such security interests in and Liens on the
Collateral shall be superior to and prior to the rights of all third parties in
the Collateral (except for Permitted Liens), and no further recordings or
filings are or will be required in connection with the creation, perfection or
enforcement of such security interests and Liens, other than the filing of
continuation statements in accordance with applicable law.
SECTION 4.25 Organizational Documents. The documents delivered pursuant to
Section 3.1(r) constitute, as of the Closing Date, all of the partnership
agreements and other organizational documents (together with all amendments and
modifications thereof) of each Borrower. The documents delivered pursuant to
Section 3.1(v) constitute, as of the Closing Date, all of the organizational
documents (together with all amendments and modifications thereof) of the REIT.
Each Borrower represents
55
that it has delivered to the Agent true, correct and complete copies of each of
the documents set forth in this Section 4.25.
SECTION 4.26 Construction. To the extent that any Borrower or any
Borrowers' contractors shall undertake to perform any construction of Tenant
Improvements, such construction shall be performed in accordance with all
Requirements.
SECTION 4.27 Structural Defects and Violation of Law. To the best of each
Borrower's knowledge and except as set forth in the structural and engineering
report prepared by Xxxxxxx & Xxxxxx, dated July 12, 1996, and delivered to Agent
with respect to the Properties (as supplemented or amended, the "Engineering
Report"), there are no structural defects in either Building, neither Building
is in violation of any Requirements, and the applicable Borrower's anticipated
use of the Building owned by such Borrower will comply in all material respects
with applicable zoning ordinances, regulations, and restrictive covenants
affecting such Property.
SECTION 4.28 Budget. The Budget presents and each Annual Budget will
present, a reasonably full and complete representation of all costs, expenses
and fees which the Borrowers, after diligent inquiry and analysis by the
Borrowers, expect, as of the date such Annual Budget was prepared or revised, to
pay or to become obligated to pay in connection with Capital Expenditures, the
construction of the Tenant Improvements, demolition work, payment of Tenant
Expenses, Tenant Allowances, Alterations (as defined in the Mortgage), operating
expenses and interest and amortization on the Loan.
SECTION 4.29 Principal Offices. The principal office, chief executive
office and principal place of business of the Borrowers is c/o Xxxxxx Capital
Group, L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any Obligations
remain unpaid:
56
SECTION 5.1 Information. Each Borrower will deliver to Agent:
(a) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of each Borrower, a balance sheet of each
Borrower as of the end of such fiscal year and the related statements of cash
flow and earnings for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, prepared and audited
by Deloitte & Touche or such other independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event within sixty (60) days
after the end of each of the first three quarters of each fiscal year of each
Borrower, a balance sheet of each Borrower as of the end of such quarter and the
related statements of cash flow and earnings for such quarter and for the
portion of each Borrower's fiscal year ended at the end of such quarter, setting
forth in the case of such cash flow and earnings statements in comparative form
the figures for the corresponding quarter and the corresponding portion of each
Borrower's previous fiscal year, all certified as to fairness of presentation,
GAAP and consistency by the chief financial officer or the chief accounting
officer (or an equivalent officer) of the general partners of the Borrowers;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officers or the chief accounting officers (or an equivalent officer)
of the general partners of the Borrowers (i) stating whether any Default or
Event of Default or Mandatory Prepayment Event exists on the date of such
certificate and, if any Default, Event of Default or Mandatory Prepayment Event
then exists, setting forth the details thereof and the action which the
Borrowers are taking or proposes to take with respect thereto and (ii)
representing (x) to the best of their knowledge, after due inquiry, that such
financial statements fairly present the financial condition and the results of
operations of each Borrower on the dates and for the periods indicated, on a
GAAP basis, with respect to the Borrowers subject, in the case of interim
financial statements, to normally recurring year-end adjustments, and (y) that
such officers have reviewed the terms of the Loan Docu-
57
ments and have made, or caused to be made under their supervision, a review in
reasonable detail of the business and condition of the Borrowers during the
period beginning on the date through which the last such review was made
pursuant to this Section 5.1(c) (or, in the case of the first certification
pursuant to this Section 5.1(c), the Closing Date) and ending on a date not more
than ten (10) Domestic Business Days prior to the date of such delivery and that
(1) on the basis of such financial statements and such review of the Loan
Documents, no Default, Event of Default or Mandatory Prepayment Event existed as
of the date of said financial statements, and (2) on the basis of such review of
the Loan Documents and the business and condition of Borrowers, to the best
knowledge of such officers, no Default, Event of Default or Mandatory Prepayment
Event under any other provision of Section 6.1 occurred or, if any such Default
or Event of Default has occurred, specifying the nature and extent thereof and,
if continuing, the action Borrowers propose to take in respect thereof.
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements that they have
no actual knowledge that any Default or Event of Default existed on the date of
such statements;
(e) (i) within five (5) days after any Borrower obtains knowledge of
any Default, Event of Default or Mandatory Prepayment Event, if such Default or
Event of Default is then continuing, a notice from the chief financial officers
or the chief accounting officers of the Borrowers setting forth the details
thereof and the action which Borrowers are taking or propose to take with
respect thereto; (ii) promptly and in any event within ten (10) days after any
Borrower obtains knowledge thereof, notice of (x) any litigation or governmental
proceeding pending or threatened against either Borrower or either Property
which, if adversely determined, is likely to, individually or in the aggregate,
result in a Material Adverse Effect, or (y) any other event, act or condition
which is likely to result in a Material Adverse Effect and (iii) promptly and in
any event within ten (10) days after any Borrower obtains knowledge thereof,
copies of any notice received from the Manager with respect to any material
violation of any Requirements;
58
(f) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC, (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice, (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice, (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application, (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC, (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice, or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officers or the chief accounting officers of
the Borrowers setting forth details as to such occurrence and action, if any,
which any Borrower or applicable member of the ERISA Group is required or
proposes to take;
(g) promptly and in any event within five (5) Domestic Business Days
after any Borrower obtains actual knowledge of any of the following events, a
notice from such Borrower, executed by an officer of such Borrower, specifying
the nature of such condition and such Borrower's or, if the such Borrower has
actual knowledge thereof, the Environmental Affiliate's proposed initial
response thereto: (i) the receipt by such Borrower, or, if the such Borrower has
actual knowledge thereof, any of the Environmental Affiliates of any written
communication, from a Governmental Authority that alleges that such Borrower,
or, if such Borrower has actual knowledge thereof, any of the Environmental
Affiliates, is not in
59
compliance with applicable Environmental Laws, (ii) such Borrower shall obtain
actual knowledge that there exists any Environmental Claim pending or threatened
against such Borrower or any Environmental Affiliate, or (iii) such Borrower
obtains actual knowledge of any release, emission, discharge or disposal of any
Hazardous Substance that is likely to form the basis of any Environmental Claim
against any Borrower or any Environmental Affiliate;
(h) promptly and in any event within five (5) Domestic Business Days
after receipt of any material notices or correspondence from any company or
agent for any company providing insurance coverage to any Borrower relating to
any material loss of any Borrower, copies of such notices and correspondence;
(i) on or before the fifteenth (15th) day of January of each year
during the Term, each Borrower shall deliver to the Agent the Annual Budget and
a copy of the annual Leasing Guidelines (as defined in the Property Management
Agreement) to be delivered by the Manager to the Borrowers pursuant to the terms
of the Property Management Agreement for such Borrower's Property for the
succeeding calendar year; each such Annual Budget shall be in substantially the
same form as the Budget and will contain each Borrower's most accurate estimate
of each budgeting item and only such contingencies and reserves as are
reasonable under the applicable circumstances;
(j) on or before the fifteenth (15th) day of each month during the
Term, Borrower shall deliver to the Agent the following (the "Monthly Report")
for the immediately preceding month: (i) an unaudited monthly operating
statement prepared by the Property Manager, setting forth the Property Income
and Property Expenses of Borrower for such month, including Capital Expenditures
and Tenant Expenses, (ii) a rent roll for each Property, and (iii) a copy of
each Lease entered into during such month; together with, a certificate from the
chief financial officers or chief accounting officers (or equivalent officer) of
each General Partner, certifying that such Monthly Report is true and correct
and accurately reflects the status of each Property and commencing in the Fourth
Loan Year, setting forth the calculations required to establish on a monthly
basis Net Cash Flow to be reserved pursuant to Section 2.15(a);
60
(k) as soon as available and in any event within fifteen (15) days
after the end of each calendar quarter, the Borrowers shall deliver to Agent a
leasing status report in the form attached hereto as Exhibit D;
(l) on or before the fifteenth (15th) day of each month during the
Term, and within five (5) Domestic Business Days after the Agent's request
therefor, the Borrowers shall cause the REIT or the transfer agent for the REIT
to deliver to the Agent a list of the then current shareholders of the REIT,
indicating with respect to each shareholder, the number of outstanding shares
owned by it;
(m) at the request of Agent, copies of any plans and specifications
for the Properties which the Borrowers or the Manager may possess; and
(n) from time to time such additional information regarding the
financial position or business of the Borrowers, including, without limitation,
any reports and statements as shall be prepared by the Manager in accordance
with Section 3.8 of the Property Management Agreement as the Agent, at the
request of any Lender, may reasonably request.
SECTION 5.2 Payment of Obligations. Subject to Borrowers' right to contest
as set forth in the Mortgage, Borrowers will pay and discharge, at or before
maturity, all its respective obligations and liabilities including, without
limitation, any obligation pursuant to any agreement by which it or any of its
properties is bound and any tax liabilities, except where such tax liabilities
are being diligently contested in good faith by appropriate proceedings in
accordance with the terms of the Mortgage, and will maintain, in accordance with
GAAP consistently applied, appropriate reserves for the accrual of any of the
same.
SECTION 5.3 Maintenance of Property; Insurance.
(a) Each Borrower will keep its respective Property in good repair,
working order and condition, subject to casualty and ordinary wear and tear and
in accordance with the provisions of the Mortgage.
(b) Each Borrower shall (i) maintain insurance as specified in
Section 5 of the Mortgage with insurers
61
meeting the qualifications described therein, and (ii) furnish to Agent from
time to time, upon written request, copies of the policies under which such
insurance is issued, certificates of insurance and such other information
relating to such insurance as Agent may reasonably request. Each Borrower will
deliver to the Agent (x) full information as to the insurance carried, (y)
within five (5) days of receipt of notice from any insurer, a copy of any notice
of cancellation or material change in coverage from that then existing and (z)
forthwith, notice of any cancellation or nonrenewal of coverage by any Borrower.
SECTION 5.4 Conduct of Business and Maintenance of Existence. Each
Borrower will continue to engage in business of the same general type as now
conducted by each Borrower, and will preserve, renew and keep in full force and
effect, its partnership existence and its respective rights, privileges and
franchises necessary or desirable in the normal conduct of business.
SECTION 5.5 Compliance with Laws. Each Borrower will comply in all
material respects with all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including, without limitation,
Environmental Laws, and all zoning and building codes with respect to the
Properties and ERISA and the rules and regulations thereunder), except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings.
SECTION 5.6 Inspection of Property, Books and Records.
(a) Each Borrower will keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities, and, upon reasonable
notice (except in connection with emergencies), will permit representatives of
any Lender at such Lender's expense to visit and inspect the Properties and all
materials furnished in or about the Buildings, and to examine and make abstracts
from any of its books and records and to discuss its affairs, finances and
accounts with its officers, employees and independent public accountants, all at
such reasonable times and during the business hours of the Borrowers and as
often as may reasonably be desired.
62
(b) In addition to the rights granted to the Lenders and the Agent
pursuant to Section 5.6(a), during any period that Net Cash Flow is to be
deposited into the Expiring Lease Costs Reserve Sub-Account pursuant to Section
2.15(a), the Agent shall have the right to review and audit as often as the
Agent reasonably deems necessary or desirable or at the request of the Required
Lenders, at the Borrowers' sole cost and expense, all of the Borrowers' books,
records, bank statements, files and any other accounting and other documents the
Agent deems appropriate in order to confirm (i) the receipt by the Agent of the
Net Cash Flow required to be deposited by Borrowers in accordance with the terms
hereof and the Cash Collateral Agreement (ii) calculations and determinations of
Net Cash Flow (including, without limitation, the computation of Property
Expenses and Property Income).
SECTION 5.7 Existence. Each Borrower shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its existence
and (ii) its patents, trademarks, servicemarks, tradenames, copyrights,
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights, consents and
approvals necessary for the proper operation of the Properties.
SECTION 5.8 Financial Covenants.
(a) Negative Pledge. None of the Borrower, a General Partner, Lower
Tier LP or the REIT will create, assume or suffer to exist any Lien on the
Properties, the Leases or any other asset now owned or hereafter acquired by any
Borrower or General Partner except for Permitted Liens and any encumbrances
created by the Loan Documents in favor of the Agent and/or the Lenders.
(b) Project Indebtedness. Neither Borrower shall, at any time,
create, incur, assume, guaranty, suffer to exist or otherwise become or remain
directly or indirectly liable with respect to any debt for borrowed money other
than unsecured loans from partners.
63
SECTION 5.9 Restriction on Fundamental Changes.
(a) Neither Borrower shall liquidate, wind-up or dissolve (or suffer
any liquidation or dissolution), discontinue its business or convey, lease,
sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or any substantial part of its business or property, whether
now or hereafter acquired. Subject to Agent's consent rights pursuant to Section
5.20 hereof, nothing in this Section shall be deemed to prohibit the leasing of
portions of the Buildings in the ordinary course of business for occupancy by
the space tenants thereunder.
(b) Neither Borrower shall amend its partnership agreement or other
organizational documents in any material manner nor permit the partnership
agreements of the Lower Tier LP or the Upper Tier LP nor the organizational
documents of the REIT to be amended in any material manner without the consent
of the Agent and the Required Lenders, not to be unreasonably withheld or
delayed. For purposes hereof, "material manner" shall mean any amendment or
modification to any such partnership agreement or other organizational document
which would have a Material Adverse Effect.
(c) Except as provided below, there shall be no Transfer of any
direct or indirect beneficial ownership interest in (i) either Borrower as the
same exists as of the date hereof or (ii) any of the partners of the Lower Tier
LP or the Upper Tier LP, as the same exists as of the date hereof, or (iii)
either General Partner as the same exists as of the date hereof or (iv) the REIT
as the same exists as of the date hereof, without the consent of the Super
Required Lenders which may be withheld or granted in their sole and absolute
discretion. Notwithstanding the foregoing, however, no consent shall be required
to a Transfer or any subsequent Transfer of (x) all or any portion of the
limited partnership interests in the Upper Tier LP owned, as of the date hereof,
by JMB/NYC Office Building Associates, L.P. or any interest therein or (y) any
shareholder interests in the REIT, subject to the provisions of Section 2.8(e)
or (z) the interest of the Upper Tier LP in the Lower Tier LP pursuant to
Section 12.2 of the Agreement of Limited Partnership of the Lower Tier LP or a
similar transfer of such interest to or at the direction of the REIT.
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SECTION 5.10 Sale of the Property. Subject to the provisions of Section
2.9(d), the Borrowers shall not sell or otherwise Transfer its interest in all
or any part of the Properties; provided, however, that subject to the provisions
of the Mortgage and Section 5.20 hereof, nothing in this Section shall be deemed
to prohibit the leasing of portions of the Properties in the ordinary course of
business for occupancy by the Tenants thereunder.
SECTION 5.11 Changes in Business. The Borrowers shall not enter into any
other business.
SECTION 5.12 Fiscal Year; Fiscal Quarter. The Borrowers shall not change
their respective fiscal years or any of their respective Fiscal Quarters except
as required by law.
SECTION 5.13 Margin Stock. None of the proceeds of the Loan will be used,
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any Margin Stock.
SECTION 5.14 Payments. The Borrowers shall pay all reasonable costs and
expenses required to satisfy the conditions of this Agreement and the closing of
the Loan; without limiting the generality of the foregoing, the Borrowers shall
pay: (i) all out-of-pocket expenses of the Agent (including reasonable fees and
disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx ("Skadden"), in connection
with the preparation of this Agreement, the Loan Documents and the documents and
instruments referred to therein, (ii) all fees payable to Agent in connection
with the closing of the Loan pursuant to the Fee Letter, (iii) all taxes and
recording expenses on the Mortgage, if any; (iv) all title insurance charges and
premiums; (v) all costs of surveying the Properties; and (vi) all costs of
procuring an appraisal and engineering and environmental reports, in all cases,
as are required pursuant to this Agreement.
SECTION 5.15 Single Purpose Entity. The Borrowers and each General Partner
shall each remain a Single Purpose Entity.
SECTION 5.16 Liability of Lenders. No Lender shall be liable in any event
whatsoever for any injury or damage to any property or to any Person happening
on, in
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or about the Properties or their appurtenances, or for any injury or damage to
the Properties or to any property belonging to the Borrowers or any other Person
which may arise from any cause whatsoever, unless such injury or damage is
caused by the gross negligence or willful misconduct of such Lender.
SECTION 5.17 Mechanics' Liens. If any mechanic's, public improvement,
laborer's or materialmen's lien at any time shall be filed against either or
both of the Borrower's interest in the Properties or any part thereof, then
Borrowers, within forty-five (45) days after notice to the Borrowers of the
filing thereof, shall cause the same to be discharged of record by payment,
deposit, bond, order of a court of competent jurisdiction or otherwise;
provided, however, that Borrowers shall have the right to contest any such lien
in accordance with the provisions of Section 7(c) of the Mortgage.
SECTION 5.18 Intentionally Deleted.
SECTION 5.19 Major Alterations.
(a) The Borrowers shall not undertake any Major Alteration without
the consent of the Agent, and with respect to any Major Alteration in which the
aggregate estimated cost equals or exceeds $10,000,000, the consent of the
Required Lenders, which consent shall not in each case be unreasonably withheld.
The Borrowers shall deliver to the Agent no less than thirty (30) days prior to
the commencement by the Borrowers of any Major Alteration, a written request for
the Agent's or, if applicable, the Required Lender's, consent to such proposed
Major Alteration together with (collectively, a "Major Alteration Package"):
(i) complete final plans and specification prepared by an
architect (or engineer where applicable) licensed in the State
and City of New York (which architect or engineer shall
reasonably satisfactory to the Agent);
(ii) a signed estimate prepared and signed by the supervising
architect;
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(iii) a proposed budget certified as true, correct and
complete by an officer of the Borrowers; and
(iv) such additional information as the Agent shall reasonably
request.
Within thirty (30) days after the Agent shall have received a Major Alteration
Package, the Agent or, if applicable, the Required Lenders, shall either consent
or refuse to consent to such Major Alteration. If the Agent or, if applicable,
the Required Lenders, shall refuse to consent to any proposed Major Alteration,
the Agent shall set forth in reasonable detail the reasons for such refusal. If
the Agent shall fail to respond within such thirty (30) day period, Borrowers
may notify the Agent of such failure, specifying that the failure to respond
within three (3) Domestic Business Days thereafter will be deemed to be consent
hereunder, and if the Agent shall fail to respond within three (3) Domestic
Business Days after receipt of such second notice, the Agent or, if applicable,
the Required Lenders, shall be deemed to have consented to such proposed Major
Alteration.
(b) The Borrowers shall not commence any Major Alteration prior to
the delivery by Borrowers to the Agent of the following:
(i) evidence of the Borrowers' receipt of
all applicable governmental approvals
required in connection with such Major
Alteration;
(ii) copies of all permits, contracts,
purchase orders or work orders relating to
the Major Alteration; and
(iii) for any Major Alteration costing in excess of $750,000,
a payment and performance bond and/or guaranty for the payment
for and completion of the Major Alteration in an amount equal
to not less than 110% of the supervising architect's estimate
of the entire cost of completing such Major Alteration or
other evidence satisfactory to Agent as to adequate reserves
for the payment for and completion of such Major Alteration.
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(c) After the completion of a Major Alteration, the Borrowers shall
promptly (but in no event later than thirty (30) days after the completion of
such Major Alterations) deliver to the Agent the following:
(i) a certificate of the supervising architect certifying that
the Major Alterations have been satisfactory completed
substantially in accordance with the approved plans and
specifications; and
(ii) waivers of lien executed by all contractors providing
labor, materials or services with respect to the Major
Alterations.
SECTION 5.20 Leases. (a) The Borrowers shall not enter into, renew (except
pursuant to renewal rights contained in existing Major Leases), terminate or
amend (other than as required by a Lease, e.g. confirming delivery or
commencement dates, etc.) in any material respect any Major Lease after the date
hereof without first obtaining the prior written consent of the Required
Lenders, which consent shall not be unreasonably withheld or delayed, provided
that each Major Lease entered into after the date hereof shall contain such
subordination and attornment provisions as are required by the Mortgage. Prior
to entering into any Major Lease (or a renewal (except pursuant to renewal
rights contained in then existing Major Leases), material amendment or
termination thereof), the Borrowers shall deliver to the Agent the following
(collectively, the "Major Lease Term Sheet Package"): (i) a final term sheet in
a form reasonably acceptable to Agent (the "Major Lease Term Sheet") containing
all the material terms of the proposed Major Lease, including, without
limitation, the identity of the proposed tenant and (ii) such information with
respect to the prospective Tenant as shall permit the Agent to assess such
proposed Tenant's business, character and creditworthiness. Agent shall promptly
upon receipt deliver a copy of any Major Lease Term Sheet Package to each
Lender. Within fifteen (15) Domestic Business Days after the Agent shall have
received a Major Lease Term Sheet Package, the Required Lenders shall either
consent or refuse to consent to such Major Lease Term Sheet. If the Required
Lenders shall refuse to consent to any proposed Major Lease Term Sheet, the
Agent shall promptly forward to the Borrowers in reasonable detail the reasons
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for such refusal. If the Agent shall fail to respond within such fifteen (15)
Domestic Business Day period, Borrowers may notify the Agent of such failure and
if the Agent shall fail to respond within three (3) Domestic Business Days after
receipt of such second notice, the Required Lenders shall be deemed to have not
consented to such proposed Major Lease Term Sheet. If the Required Lenders shall
approve the Major Lease Term Sheet, Borrowers shall deliver to Agent the first
draft of the proposed Major Lease and all subsequent drafts of such proposed
Major Lease. Within seven (7) Domestic Business Days after the Agent shall have
received the final draft of the proposed Major Lease, provided such final draft
is on substantially the same economic terms as the approved Major Lease Term
Sheet, Agent only (without the Required Lenders) shall either consent or refuse
to consent to such Major Lease. If the Agent shall refuse to consent to any
proposed Major Lease, it shall set forth in reasonable detail its reasons for
such refusal, which may not be terms which were approved in the Major Lease Term
Sheet. If the Agent shall fail to respond within such seven (7) Domestic
Business Day period, Borrowers may notify the Agent of such failure and if the
Agent shall fail to respond within three (3) Domestic Business Days after
receipt of such second notice, the Agent shall be deemed to have not consented
to such proposed Major Lease. If Borrowers fail to deliver drafts of a proposed
Major Lease as aforesaid, the foregoing seven (7) Domestic Business Day period
shall be increased to fifteen (15) Domestic Business Days.
(b) All Leases (regardless of whether it is a Major Lease) shall (i)
be on commercially reasonable terms, (ii) provide for market rents (which shall
be determined taking into account the applicable operating expense and real
estate tax provisions, Tenant Work Allowance, Tenant Expenses and free rent),
and contain normal and customary subordination and attornment provisions as
required by the Mortgage. Agent shall deliver its customary form of
subordination, non-disturbance and attornment agreement to Major Lease Tenants
and certain other Tenants at Agent's reasonable discretion.
SECTION 5.21 Construction Consultant. If the Agent shall so elect, the
Agent may retain, at the Borrowers' expense, a construction consultant to review
plans and specifications submitted to it pursuant to Section 5.19.
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SECTION 5.22 Property Manager. The Borrowers shall not retain any manager
for the Property other than Tishman Speyer Properties, L.P. or any affiliate
thereof without the prior written consent of the Required Lenders. Agent's
consent shall be required if a controlling interest in such entity is
transferred, sold or otherwise conveyed unless one or more of the current senior
management personnel of such entity shall continue to control the policy and
managerial decisions of such entity. Notwithstanding the foregoing, no Default
shall exist hereunder if Agent denies its consent to any such change of control
if Manager continues to manage the Properties pending approval of a replacement
manager and during any such transition period, provided that Borrowers are
diligently seeking a replacement manager and shall have entered into an
agreement with an approved replacement manager within sixty (60) days.
SECTION 5.23 Leasing Agent. The Borrowers shall not retain any leasing
agent for either of the Properties other than Tishman Speyer Properties, L.P. or
any affiliate thereof without the prior written consent of the Required Lenders.
Agent's consent shall be required if a controlling interest in such entity is
transferred, sold or otherwise conveyed unless one or more of the current senior
management personnel of such entity shall continue to control the policy and
managerial decisions of such entity. Notwithstanding the foregoing, no Default
shall exist hereunder if Agent denies its consent to any such change of control
if the current leasing agent continues to lease the Properties pending approval
of a replacement leasing agent and during any such transition period, provided
that Borrowers are diligently seeking a replacement leasing agent and shall have
entered into an agreement with an approved replacement leasing agent within
sixty (60) days.
SECTION 5.24 Asset Manager. Neither the Borrowers nor the REIT shall
retain an asset manager for either of the Properties other than 970 Management
LLC without the prior written consent of the Required Lenders. Any change of
control relating to the direct or indirect ownership of such entity shall
require the prior written consent of the Agent and the Required Lenders
hereunder. Notwithstanding the foregoing, no Default shall exist hereunder if
Agent denies its consent to any such change of control if the current asset
manager continues to perform services under the Asset Management Agreement
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pending approval of a replacement asset manager and
during any such transition period.
SECTION 5.25 Material Contracts. Neither the Borrowers nor the REIT shall
enter into any Material Contract or modify any material term of or renew (other
than in accordance with the terms thereof) any Material Contract without the
prior written consent of the Agent if such modification or renewal would cause a
Material Adverse Effect.
SECTION 5.26 Security Deposits. Borrowers shall within five (5) Domestic
Business Days after the Closing Date establish an account or accounts with Agent
and deposit therein all security deposits held by Borrowers in connection with
the Property. Borrowers shall maintain such account or accounts with Agent or
such other commercial bank at which the Cash Collateral Account may be
maintained and deposit therein all security deposits received by Borrowers
during the Term.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1 Events of Default. The following shall each constitute an
event of default (an "Event of Default") under this Agreement, the Mortgage and
the other Loan Documents:
(a) the Borrowers shall fail to pay within three (3) Domestic
Business Days after the same is due and telephonic notice has been delivered
during normal business hours on a Domestic Business Day, whether received or
not, to three (3) designated representatives of Borrowers at designated
telephone numbers (as indicated in Section 9.1 hereof) (i) any payment of
interest or principal on the Loan or (ii) any reserve amounts, fees or any other
amounts payable hereunder, under the Fee Letter or any other Loan Document (for
which no specific grace period is provided therein), including, without
limitation, Section 3(i)(iv) of the Cash Collateral Agreement;
(b) the Borrowers shall fail to observe or perform any covenant
contained in Sections 5.3(b)(i), 5.4, 5.9, 5.10, 5.11, 5.13, 5.15, 5.17 or 5.20;
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(c) the Borrowers shall fail to observe or perform any covenant
contained in Sections 5.1, 5.6, 5.7(i), 5.8, 5.8, 5.22, 5.23, 5.24 or 5.25 and
such failure continues for ten (10) Domestic Business Days after written notice
thereof has been given to the Borrowers by the Agent;
(d) the Borrowers shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) or (c) above) for thirty (30) days after written notice thereof has been
given to the Borrowers by the Agent; provided, however, that if such Default is
susceptible of cure but cannot reasonably be cured within thirty (30) days after
notice from the Agent and provided further that the Borrowers shall have
commenced to cure such Default within such thirty (30) day period and thereafter
diligently and expeditiously proceeds to cure the same, such thirty (30) day
period shall be extended for such time as is reasonably necessary for the
Borrowers in the exercise of due diligence to cure such Default (but in no event
longer than one hundred twenty (120) days);
(e) the Borrowers shall fail to correct any representation,
warranty, certification or statement made by the Borrowers in this Agreement or
in any certificate, financial statement or other document delivered pursuant to
this Agreement which shall prove to have been incorrect in any material respect
when made (or deemed made) for ten (10) days after written notice thereof has
been given to the Borrowers by the Agent;
(f) an Event of Default (as defined therein) shall have occurred and
be continuing under the Mortgage;
(g) a default shall occur beyond any applica- ble notice and cure
period and be continuing under any Loan Document;
(h) either Borrower shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced
72
against it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(i) an involuntary case or other proceeding shall be commenced
against either Borrower seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of sixty (60) days, or an order for relief
shall be entered against such Borrower under the Federal bankruptcy laws as now
or hereafter in effect;
(j) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall have become
liable to pay under Title IV of ERISA and for which Borrowers could become
liable and such amount or amounts are not paid within ten (10) days after any
member of the ERISA Group has first received any notice of such failure, or
notice of intent to terminate a Material Plan shall be filed under Title IV of
ERISA by any member of the ERISA Group, any plan administrator or any
combination of the foregoing, or the PBGC shall institute proceedings under
Title IV of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan, or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated and for which Borrowers could become liable, or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $1,000,000 and for which
Borrowers could become liable;
(k) one or more final nonappealable judgments or decrees in an
aggregate amount of Five Million Dollars ($5,000,000) or more shall be entered
by a court or courts of competent jurisdiction against either Borrower and any
such judgments or decrees shall not be stayed,
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discharged, paid, bonded or vacated within ten (10) days
after entry of filing thereof;
(l) (i) an action shall have been instituted with respect to any
Environmental Claim against either Borrower or any Environmental Affiliate or
any Property and the same shall not have been dismissed within ninety (90) days,
(ii) any release, emission, discharge or disposal of any Hazardous Substance
shall have occurred, and such event is reasonably likely to form the basis of an
Environmental Claim against either Borrower or any Environmental Affiliate or
either Property and has not been remedied within the time period provided in
Section 6.1(d) hereof or (iii) either Borrower or the Environmental Affiliates
shall have failed to obtain any Environmental Approval necessary for the
ownership, or operation of its business, property or assets or any such
Environmental Approval shall be revoked, terminated, or otherwise cease to be in
full force and effect and not cured within the time period provided in Section
6.1(d) hereof, in each of clauses (i) through (iii), if the existence of such
condition has had or is reasonably likely to have a Material Adverse Effect;
(m) the Mortgage or any other Loan Document shall for any reason
cease to be effective or cease to be a legally valid, binding and enforceable
obligation of either Borrower in all material respects, or shall cease to give
the Agent the Liens, and the material rights, powers and privileges purported to
be created thereby, including, without limitation, a perfected security interest
in, and Lien on, all of the Collateral in accordance with the terms thereof,
prior to all other Liens other than the Permitted Liens;
(n) the Cash Collateral Agreement shall for any reason cease to be
in full force and effect, or shall cease to give the Agent the Liens, and the
material rights, powers and privileges purported to be created thereby
including, without limitation, an exclusive, perfected first priority security
interest in, and Lien on, all of the Collateral in accordance with the terms
thereof, prior to all other Liens, or the legality, validity or enforceability
thereof shall be contested by either Borrower; or
(o) the occurrence of any event which results in a Material Adverse
Effect, as reasonably determined by the Agent.
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SECTION 6.2 Rights and Remedies.
(a) Upon the occurrence of (i) any Event of Default described in
Sections 6.1(h) or 6.1 (i), or (ii) the occurrence of a Mandatory Prepayment
Event beyond the Mandatory Prepayment Date or Extended Mandatory Prepayment
Date, as applicable, the unpaid principal amount of, and any and all accrued
interest on, the Loan and any and all accrued fees and other Obligations
hereunder shall automatically become immediately due and payable, with all
additional interest from time to time accrued thereon and without presentation,
demand, or protest or other requirements of any kind (including, without
limitation, valuation and appraisement, diligence, presentment, notice of intent
to demand or accelerate and notice of acceleration), all of which are hereby
expressly waived by the Borrowers, and upon the occurrence and during the
continuance of any other Event of Default, the Agent may and, upon the written
direction of the Required Lenders, shall (provided that until the Agent receives
such written direction, it may, but shall not be obligated to, take such action,
or refrain from taking such action with respect to such Event of Default as it
shall deem advisable in its sole discretion to preserve any right or claim of
the Lenders hereunder or under any other Loan Document or to protect the
Collateral), by written notice to the Borrowers, declare the unpaid principal
amount of, and any and all accrued and unpaid interest on, the Loan and any and
all accrued fees and other Obligations hereunder to be, and the same shall
thereupon be, immediately due and payable with all additional interest from time
to time accrued thereon and without presentation, demand, or protest or other
requirements of any kind other than as provided in the Loan Documents
(including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of
acceleration), all of which are hereby expressly waived by Borrowers.
(b) In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of the
Loan and overdue interest in respect of the Loan, shall bear interest, on
demand, for each day until paid or such Event of Default is cured at a rate per
annum equal to the sum of the Alternate Base Rate for such day and three percent
(3%).
(c) In addition to any other rights or reme- dies available to it
under the Mortgage, to the extent
75
permitted by law, the Agent or its designees shall be entitled to enter into
possession of either or both of the Properties and perform any and all work and
labor necessary to complete Tenant Improvement Work (to the extent either
Borrower previously was responsible for same) or employ watchmen to protect the
Properties and the Improvements; all sums expended by the Agent for such
purposes (including, without limitation, payment to any contractors initially
hired by Borrowers) shall be deemed to have been advanced to Borrowers pursuant
to the provisions hereof and secured by the Mortgage. For this purpose, each
Borrower hereby constitutes and appoints the Agent its true and lawful
attorney-in-fact with full power of substitution, to the extent permitted by
law, and hereby empowers said attorney or attorneys as follows: to use any funds
of Borrowers for the purpose of meeting any costs incurred with Tenant
Improvement Work; to employ such contractors, subcontractors, agents, architects
and inspectors as shall be required for said purposes; to pay or bond all
existing bills and claims which are or may be liens against the Properties other
than Permitted Liens or may be necessary for the completion of any Tenant
Improvement Work or the clearance of title; to execute all applications and
certificates in the name of Borrowers which may be required by any construction
contract; and to do any and every act with respect to any construction which
Borrowers may do in their own behalf, all only to the extent required to
preserve and protect the Properties and the Lien created by the Loan Documents.
It is understood and agreed that this power of attorney is and shall be deemed
to be a power coupled with an interest which cannot be revoked. Said
attorney-in-fact shall also have power to prosecute and defend all actions or
proceedings in connection with the construction on the Properties and to take
such action and require such performance as is deemed necessary.
(d) Notwithstanding anything contained herein to the contrary, the
Lenders may not individually and other than through the Agent (or through a
court order directing the Agent or another party on behalf of the Agent) declare
a default, accelerate the Loan, institute any proceedings against Borrowers or
exercise any remedies hereunder other than in connection with any bankruptcy
proceedings or otherwise to the extent necessary to preserve the right of any
Lender to exercise any right or claim it may have hereunder or under any other
Loan Document.
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SECTION 6.3 Notice of Default. If the Agent shall not already have given
any notice to the Borrowers under Section 6.1, then the Agent shall give notice
to the Borrowers under Section 6.1 promptly upon being requested to do so by the
Required Lenders and shall thereupon notify all the Lenders thereof.
ARTICLE VII
THE AGENT
SECTION 7.1 Appointment and Authorization. Each Lender irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto. Only the Agent (and not one or more
of the Lenders) shall have the authority to deal directly with the Borrowers
under this Agreement and the Loan Documents and each Lender acknowledges that
all notices, demands or requests from such Lender to Borrowers must be forwarded
to the Agent for delivery to the Borrowers. Each Lender acknowledges that
Borrowers have no obligation to act or refrain from acting on instructions or
demands of one or more Lenders absent written instructions from the Agent in
accordance with its rights and authority hereunder.
SECTION 7.2 Agent and Affiliates. The Chase Manhattan Bank as a Lender
shall have the same rights and powers under this Agreement as any other Lender
and may exercise or refrain from exercising the same as though it were not the
Agent, and The Chase Manhattan Bank and its affiliates (as well as each Lender
and its affiliates) may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrowers or any Subsidiary or affiliate
of the Borrowers, as if it were not the Agent hereunder, and the term "Lender"
and "Lenders" shall include The Chase Manhattan Bank in its individual capacity
for so long as The Chase Manhattan Bank shall hold any interest in the Loan.
SECTION 7.3 Action by Agent. The obligations of the Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided
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in Article VI. The Agent shall not have by reason of the execution and delivery
of the Loan Documents, the performance of any of its obligations thereunder, or
by the use of the term "Agent", a fiduciary relationship in respect of any
Lender or any Borrowers. Agent shall perform its duties hereunder in accordance
with the same standard of care as that customarily exercised by the Agent with
respect to the administration of loans held entirely for its own account.
SECTION 7.4 Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for the Borrowers), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
SECTION 7.5 Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable to the Lenders for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of the Required
Lenders or if required hereby, the Super Required Lenders or (ii) in the absence
of its own gross negligence or willful misconduct. Neither the Agent nor any of
its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrowers; (iii) the satisfaction of any condition specified
in Article III, except receipt of items required to be delivered to the Agent;
or (iv) the validity, effectiveness or genuineness of this Agreement, the other
Loan Documents or any other instrument or writing furnished in connection
herewith. The Agent shall not incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which may be a bank
wire, telex or similar writing) believed in good faith by it to be genuine or to
be signed by the proper party or parties.
SECTION 7.6 Indemnification. Each Lender shall, ratably in accordance with
its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrowers as may be required under this
78
Agreement) against any reasonable cost, expense (including reasonable counsel
fees and disbursements), claim, demand, action, loss or liability (except such
as result from such indemnitees' gross negligence or willful misconduct and
except for the outstanding principal amount of the Loan and the interest accrued
thereon) that such indemnitees may suffer or incur in connection with this
Agreement, the other Loan Documents or any action taken or omitted by such
indemnitees hereunder.
SECTION 7.7 Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the 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 Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.8 Successor Agent. The Agent may resign at any time by giving
twenty (20) Domestic Business Days' notice thereof to the Lenders and the
Borrowers. Furthermore, in the event that at any time The Chase Manhattan Bank
("Chase") is the Agent and Chase assigns its entire interest as a Lender
hereunder to an Assignee as permitted by Section 9.6(c) hereof, which Assignee
is not an affiliate of Chase, then Chase shall offer to resign as Agent, which
resignation shall become effective only if the Required Lenders accept such
resignation in writing within twenty (20) Domestic Business Days after it has
been tendered by Chase. If the Required Lenders do not timely accept such
resignation, then the resignation offer shall be deemed to be withdrawn and
Chase shall continue as Agent pursuant to the terms hereof. Upon any resignation
by the Agent, the Required Lenders shall have the right to appoint a successor
Agent upon prior notice to Borrowers; provided, however, that if no Event of
Default has occurred and is continuing hereunder, the appointment of such
successor Agent shall require the prior approval of the Borrowers, which
approval shall not be unreasonably withheld or delayed. If no successor Agent
shall have been so appointed by the Required Lenders (and, if applicable,
reasonably consented to by Borrowers), and shall have accepted such appointment,
within thirty (30) days after the retiring Agent gives notice of resignation,
then the retiring Agent may, on
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behalf of the Lenders, upon prior notice to Borrowers, appoint a successor
Agent, which shall be a commercial bank organized or licensed under the laws of
the United States of America or of any State thereof or under the laws of any
other country that is a member of the OECD (so long as such Lender is acting
through a branch or agency located in the United States) and having a combined
capital and surplus of at least $500,000,000 and total assets of at least
$25,000,000,000 and experienced in the administration of loans secured by
similar collateral; provided, however, that if no Event of Default has occurred
and is continuing hereunder, the appointment of such successor Agent shall
require the prior approval of the Borrowers, which approval shall not be
unreasonably withheld or delayed. Upon the acceptance of its appointment as the
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Agent; provided,
however that to the extent that Agent is liable for any gross negligence or
willful misconduct prior to Agent's resignation hereunder such liability will
survive Agent's resignation.
SECTION 7.9 Documents. Agent shall promptly deliver to each of the Lenders
copies of any and all documents, reports or other materials or notices delivered
to Agent by Borrowers that the Lenders are required to receive under Loan
Documents or any other material documents or notices delivered to Agent by
Borrowers or notices sent to Borrowers by Agent, including, without limitation
any default notice, pursuant to the terms hereof. In addition, Agent shall
promptly notify Lenders in writing of any Default or Event of Default promptly
after obtaining actual knowledge thereof.
SECTION 7.10 Decisions. (a) The Agent or any Lender may request a
decision, consent, waiver approval or other action (collectively, "Decisions")
at any time by making a request for such Decision in writing to each of the
Lenders and delivering the same to each of the Lenders in the manner specified
in Section 9.1 herein. Such request shall (i) contain an adequate description of
the Decision being requested and (ii) specify the reasons for such request.
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(b) Such Decision may also be requested by telephone requests
therefor to each of the Lenders and the Decision thus requested shall be deemed
made if the Lender or the Agent requesting the same has received written
approval for such Decision from the Required Lenders.
(c) If the Properties are foreclosed pursuant to the direction
of the Required Lenders, then after payment of all costs and expenses of
foreclosure and collection, the Agent shall remit to each of the Lenders such
Lender's percentage of all net proceeds received by the Agent as a consequence
of such foreclosure proceeding. If the Agent acquires the Properties through
foreclosure, deed in lieu of foreclosure or otherwise, each of the Lenders shall
have an undivided interest in the Properties equal to such Lender's
proportionate interest in the Loan, notwithstanding the fact that title will be
taken in the name of the Agent alone.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1 Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Euro-Dollar
Borrowing:
(a) the Agent is advised by the Euro-Dollar Reference Bank that
deposits in dollars (in the applicable amounts) are not being offered to the
Euro-Dollar Reference Bank in the relevant market for such Interest Period, or
(b) Lenders having 50% or more of the aggregate amount of the
Commitments advise the Agent that the Adjusted London Interbank Offered Rate, as
determined by the Agent, will not adequately and fairly reflect the cost to such
Lenders of funding their Euro-Dollar Loans for such Interest Period, the Agent
shall forthwith give notice thereof to the Borrowers and the Lenders, whereupon
until the Agent notifies the Borrowers that the circumstances giving rise to
such suspension no longer exist, the obligations of such Lenders to make Euro-
Dollar Loans shall be suspended.
SECTION 8.2 Illegality. If, on or after the date of this Agreement, the
adoption of any applicable law,
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rule or regulation, or any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Lender (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans (a "Euro Dollar Illegality Event") and
such Lender shall so notify the Agent, the Agent shall forthwith give notice
thereof to the other Lenders and the Borrowers whereupon until such Lender
notifies the Borrowers and the Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Lender to make Euro-Dollar
Loans shall be suspended. With respect to Euro-Dollar Loans, before giving any
notice to the Agent pursuant to this Section, such Lender shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such notice is given, each Euro-Dollar Loan
of such Lender then outstanding shall be converted to an Alternate Base Rate
Loan either (a) on the last day of the then current Interest Period applicable
to such Euro-Dollar Loan if such Lender may lawfully continue to maintain such
Euro-Dollar Loan to such day, or (b) immediately if such Lender shall determine
that it may not lawfully continue to maintain such Loan to such day. If such
Lender shall determine that it may not lawfully continue to maintain any of its
outstanding Euro-Dollar Loans to maturity and shall so specify in such notice,
the Borrowers shall be deemed to have delivered a Notice of Interest Rate
Election and the Borrowers shall be deemed to have been given an Alternate Base
Rate Loan from such Lender in a principal amount equal to the outstanding
balance of the Euro-Dollar Loan so prepaid (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Lenders), and such Lender shall be deemed to have made such an Alternate
Base Rate Loan.
SECTION 8.3 Increased Cost and Reduced Return.
(a) If, on or after the date hereof, the adoption of any applicable
law, rule or regulation, or any change in any applicable law, rule or
regulation, or any
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change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System (but excluding
with respect to any Euro-Dollar Loan any such requirement reflected in an
applicable Euro-Dollar Reserve Percentage)), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (or its Applicable Lending Office)
or shall impose on any Lender (or its Applicable Lending Office) or on the
London interbank market any other condition affecting its Euro- Dollar Loans,
its Note, or its obligation to make Euro- Dollar Loans, and the result of any of
the foregoing is to increase the cost to such Lender (or its Applicable Lending
Office) of making or maintaining any Euro-Dollar Loan, or to reduce the amount
of any sum received or receivable by such Lender (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Lender to be material, then, within 15 days after written
demand to Borrowers by Agent on behalf of such Lender, the Borrowers shall pay
to such Lender such additional amount or amounts as will compensate such Lender
for such increased cost or reduction; provided, however, that such amounts shall
be no greater than that which such Lender is generally charging other borrowers
similarly situated to the Borrowers.
(b) If any Lender shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Lender (or its Parent) as a consequence of such Lender's
obligations hereunder to a level below that which such Lender (or its Parent)
could have
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achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Lender to be material, then from time to time, within 15 days after
written demand to Borrowers by Agent on behalf of such Lender, the Borrowers
shall pay to such Lender such additional amount or amounts as will compensate
such Lender (or its Parent) for such reduction; provided, however, that such
amount shall be no greater than that which such Lender is generally charging
other borrowers similarly situated to the Borrowers.
(c) Each Lender will promptly notify the Borrowers and the Agent of
any event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section and will designate
a different Applicable Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender. A certificate of any
Lender claiming compensation under this Section and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, such Lender may use any
reasonable and conventional averaging and attribution methods.
SECTION 8.4 Taxes.
(a) Any and all payments by the Borrowers to or for the account of
any Lender or the Agent hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
United States, any state or local government therein or any other jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Lender,
taxes imposed on its income, and franchise or similar taxes imposed on it, by
the United States, any state or local government therein or any other
jurisdiction of such Lender's Applicable Lending Office or in which Agent
maintains a permanent establishment for tax purposes or any political
subdivision of any such jurisdiction thereof (all such non-excluded taxes,
duties, levies, imposts, deductions, charg-
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es, withholdings and liabilities being hereinafter referred to as "Taxes"). If
the Borrowers shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any Note or participation therein to any
Lender or the Agent, (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 8.4) such Lender or the Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrowers shall make such deductions, (iii) the
Borrowers or shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrowers shall furnish to the Agent, at its address referred to in Section 9.1
hereof, the original or a certified copy of a receipt evidencing payment thereof
reasonably satisfactory to the Agent.
(b) In addition, the Borrowers agree to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or
similar levies imposed by the United States, the State of New York or the City
of New York which arise from any payment made hereunder or under any Note or
participation therein or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note or any other Loan Document (hereinafter
referred to as "Other Taxes").
(c) Each Borrower jointly and severally agrees to indemnify each
Lender and the Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 8.4) paid by such Lender or
the Agent and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 15
days from the date such Lender or the Agent makes demand therefor.
(d) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the
Borrowers (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrowers with Internal Revenue
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Service form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is entitled to
benefits under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or certifying that
the income receivable pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States. If the form provided by
a Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from "Taxes" as
defined in Section 8.4(a).
(e) For any period with respect to which a Lender has failed to
provide the Borrowers with the appropriate form pursuant to Section 8.4(d)
hereof (unless such failure is due to a change in treaty, law or regulation
occurring subsequent to the date on which a form originally was required to be
provided), such Lender shall not be entitled to indemnification under Section
8.4(a) with respect to Taxes imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrowers shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrowers are required to pay additional amounts to or
for the account of any Lender pursuant to this Section 8.4, then such Lender
will change the jurisdiction of its Applicable Lending Office so as to eliminate
or reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise disadvantageous to such
Lender.
SECTION 8.5 Alternate Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Lender to make Euro-Dollar Loans has been
suspended pursuant to Section 8.2 or (ii) any Lender has demanded compensation
under Section 8.3 or 8.4 with respect to its Euro-Dollar Loans and the Borrowers
shall, by at least five Euro-Dollar Business Days' prior notice to such Lender
through the Agent, have elected that the provisions of this Section shall apply
to such Lender, then, unless and until such Lender notifies the Borrowers that
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the circumstances giving rise to such suspension or
demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Lender to the
Borrowers as Euro-Dollar Loans shall be made instead as Alternate Base Rate
Loans (on which interest and principal shall be payable contemporaneously with
the related Euro-Dollar Loans of the other Lenders), and
(b) after each of its Euro-Dollar Loans to the Borrowers has been
repaid, all payments of principal which would otherwise be applied to repay such
Euro- Dollar Loans shall be applied to repay its Alternate Base Rate Loans
instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire or similar writing) and
shall be given to such party: (x) in the case of the Borrowers or the Agent, at
its address set forth on the signature pages hereof, (y) in the case of any
Lender, at its address set forth in its Administrative Questionnaire or (z) in
the case of any party, such other address or telephone number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrowers. Each
such notice, request or other communication shall be effective (i) if given by
certified mail, return receipt requested, addressed as aforesaid when delivered
(or delivery is refused) as indicated by the receipt or (ii) if given by hand or
reputable overnight courier, when delivered at the address specified in this
Section; provided that notices to the Agent under Article II or Article VIII
shall not be effective until received. Telephonic notices to be delivered
pursuant to Section 6.1(a) hereof shall be delivered to Xxxx X. Xxxxx at
telephone number: (000) 000-0000, Xxx Xxxxxxx at telephone number: (212)
000-0000, and Xxxxxx Xxxxxx, at telephone number: (000) 000-0000.
SECTION 9.2 No Waivers. No failure or delay by the Agent or any Lender or
Borrowers in exercising any right, power or privilege hereunder or under any
Note shall operate as a waiver thereof nor shall any single or
87
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.3 Expenses; Indemnification.
(a) Each Borrower jointly and severally shall pay (i) all
out-of-pocket expenses of the Agent (including reasonable fees and disbursements
of Skadden), in connection with the preparation of this Agreement, the Loan
Documents and the documents and instruments referred to therein, the
administration and enforcement of the Loan; (ii) all out-of-pocket expenses of
the Agent (including reasonable fees and disbursements of Skadden) in connection
with the review of Leases and subordination, nondisturbance and attornment
agreements; (iii) all reasonable fees incurred in connection with the
transactions contemplated by this Agreement and the other Loan Documents
including but not limited to appraisal fees, engineering fees, consulting
professionals and legal fees; (iv) all of Agent's reasonable costs and expenses
(including reasonable fees and disbursements of Agent's external counsel)
incurred in connection with the syndication of the Loan to the Lenders during
the Syndication Period; (v) any time during the Term, all reasonable costs
payable to third parties with respect to any appraisals, environmental audits
and other reports required from time to time in accordance with any regulatory
requirements or the internal policies of Agent set in accordance with regulatory
requirements, provided that Agent shall not conduct an appraisal more than once
in any twenty-four (24) month period for each Property unless a Default has
occurred and is then continuing or an event has occurred which in the reasonable
judgment of Agent shall have a Material Adverse Effect and provided further
that, to the extent reasonably possible, such appraisals shall be updates of
previously prepared appraisals, and (vi) if an Event of Default occurs and is
continuing, all reasonable out-of-pocket expenses incurred by the Agent and each
of the Lenders, including reasonable fees and disbursements of counsel for the
Agent and each of the Lenders, in connection with the enforcement of the Loan
Documents and the instruments referred to therein and such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom (collectively, as to all
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expenses incurred pursuant to this clause (vi), the
"Collection Costs").
(b) Each Borrower jointly and severally agrees to indemnify the
Agent and each Lender, their respective affiliates and the respective directors,
officers, agents, shareholders and employees of the foregoing (each an
"Indemnitee") and hold each Indemnitee harmless from and against any and all
liabilities, losses, claims, damages, costs and expenses of any kind, including,
without limitation, the reasonable fees and disbursements of counsel and any
settlement costs, which may be incurred by such Indemnitee in connection with
(i) the Loan and Borrowers' actual or proposed use of any proceeds of the Loan
or Commitments, or (ii) any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) that may at
any time (including, without limitation, at any time following the payment of
the Obligations) be imposed on, asserted against or incurred by any Indemnitee
as a result of, or arising out of, or in any way related to or by reason of in
each case, (v) any of the transactions contemplated by the Loan Documents or the
execution, delivery or performance of any Loan Document,(w) any violation by a
Borrower or the Environmental Affiliates of any applicable Environmental Law,
(x) any Environmental Claim arising out of the management, use, control,
ownership or operation of property or assets by the Borrowers or any of the
Environmental Affiliates, including, without limitation, all on-site and
off-site activities involving Hazardous Substances, (y) the breach of any
environmental representation or warranty set forth herein, and (z) the exercise
by the Agent and the Lenders of their rights and remedies (including, without
limitation, foreclosure) under any agreements creating any such Lien. Borrowers'
obligations under this Section shall exclude, as to any Indemnitee, any such
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements to the extent of any gross negligence
or willful misconduct of such Indemnitee as finally determined by a court of
competent jurisdiction. Borrowers' obligations under this Section shall survive
the termination of this Agreement and the payment of the Obligations.
(c) Each Borrower jointly and severally shall pay, and hold the
Agent and each of the Lenders harmless from and against, any and all present and
future U.S. stamp, recording (including New York mortgage recording
89
taxes), transfer and other similar foreclosure related taxes with respect to any
of the Loan Documents or the transactions contemplated thereby and hold the
Agent and each Lender harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Lender) in paying such taxes.
SECTION 9.4 Sharing of Set-Offs. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Lender is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to
Borrowers or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final) and any other indebtedness at any
time held or owing by such Lender (including, without limitation, by branches
and agencies of such Lender wherever located) to or for the credit or the
account of Borrowers (but not of any officer, director, employee, partner or
affiliate of Borrowers) against and on account of the Obligations of Borrowers
then due and payable to such Lender under this Agreement or under any of the
other Loan Documents, including, without limitation, all interests in
Obligations purchased by such Lender. Each Lender agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any Note held by it which is greater than the proportion received by any
other Lender in respect of the aggregate amount of principal and interest due
with respect to any Note held by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Lenders, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Lenders shall be shared by the Lenders pro rata; provided that
nothing in this Section shall impair the right of any Lender to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of Borrowers other than its
indebtedness under the Notes.
SECTION 9.5 Amendments and Waivers.
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(a) No amendment or material waiver of any provision of this
Agreement or any other Loan Document nor consent to any material departure by
the Borrowers therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Agent and approved in writing by the Required
Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. For purposes of this
Section 9.5, the Agent shall determine (in its sole discretion) whether or not a
waiver or departure is material, it being the understanding of the parties
hereto that such waiver or departure shall be considered non-material if it is
administrative or technical in nature and does not involve matters of
bankruptcy, payments of interest or principal or amounts in excess of $100,000,
or matters which adversely affect the value of either or both of the Properties.
The parties hereto agree that any non-material waiver of any provision of this
Agreement or any other Loan Document shall be effective upon the execution by
the party so charged of a written agreement to such effect. Agent will give
notice to the Lenders of (i) any material waiver or non-material waiver made in
writing or (ii) any amendment, whether material or non-material.
(b) Notwithstanding anything set forth in sub- paragraph (a) above,
no such amendment or waiver shall, unless signed by all the Lenders, (i)
increase or decrease the Commitment of any Lender (except for a ratable decrease
in the Commitments of all Lenders) or subject any Lender to any additional
obligation, (ii) reduce the principal of or rate of interest on the Loans or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for any reduction or termination
of any Commitment, (iv) except as permitted or contemplated by the terms of the
Loan Documents (including, without limitation, Section 2.9(d) and (e) of this
Agreement), release or amend the provisions regarding the release of the Lien of
the Mortgage, the Cash Collateral Agreement, the Swap Pledge or the Note Pledge,
release any Environmental Guaranty or otherwise release any other collateral,
(v) change the definitions of Required Lenders and Super Required Lenders; (vi)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes; or (vii) amend this Section 9.5.
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(c) Each Borrower may rely on any consents, waivers or approvals
furnished in writing by the Agent to such Borrower in connection herewith
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 9.6 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, except that the Borrowers may not assign or otherwise transfer any of
their rights under this Agreement or the other Loan Documents without the prior
written consent of all Lenders except as permitted by Section 5.10 hereof and no
Lender may assign or otherwise transfer any of its rights under this Agreement
or the other Loan Documents except as set forth in this Section 9.6.
(b) The Chase Manhattan Bank may, at any time, and any other Lender
may, at any time, except as otherwise provided herein, assign to one or more
banks or other financial institutions (each an "Assignee") all, or a part of
all, of its rights and obligations under this Agreement, the Notes and the other
Loan Documents, provided, that such Assignee shall assume such rights and
obligations, including, without limitation, its rights and obligations as a
Participant pursuant to Section 9.18 hereof, pursuant to an Assignment and
Assumption Agreement in substantially the form attached hereto as Exhibit F
hereto executed by such Assignee and such transferor Lender; and provided,
further, that for the period (the "Syndication Period") commencing on the
Closing Date and ending on the day which is 180 days after the Closing Date, no
Lender other than The Chase Manhattan Bank may assign all or any part of its
rights and obligations under this Agreement, the Notes and the other Loan
Documents to any other party. Each such assignment shall be made with (and
subject to) the subscribed consent of the Borrowers and the Agent, which
consents shall not be unreasonably withheld or delayed (the withholding of such
consent shall not be deemed unreasonable if such Assignee is not an Eligible
Assignee); provided that if an Assignee is a Lender or an Affiliate of such
transferor Lender, no consents shall be required; provided further that, upon
the occurrence and during the continuation of an Event of Default, the Borrowers
shall have no right to consent to such Assignee or any other assignee. Further,
unless and until the occurrence and during the continuation of an Event of
Default, any partial assignment
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shall be in the minimum principal amount of Twenty Million Dollars
($20,000,000); provided, however that any such partial assignment to any Lender
hereunder may be in the minimum principal amount of ($5,000,000). Upon execution
and delivery of such instrument and payment by such Assignee to such transferor
Lender of an amount equal to the purchase price agreed between such transferor
Lender and such Assignee, such Assignee shall be a Lender party to this
Agreement and shall have all the rights and obligations of a Lender with a
Commitment as set forth in such instrument of assumption, and the transferor
Lender shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (b), the
transferor Lender, the Agent and the Borrowers shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee and the
existing Note shall be cancelled. In connection with any such assignment after
the Syndication Period, the transferor Lender shall pay to the Agent an
administrative fee for processing such assignment in the amount of $3,500. If
the Assignee is not incorporated under the laws of the United States of America
or a state thereof, it shall deliver to the Borrowers and the Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 8.4.
(c) Any Lender may at any time assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations hereunder.
Promptly upon being notified in writing of such transfer, Agent shall notify
Borrowers thereof.
(d) No Assignee or other transferee of any Lender's rights shall be
entitled to receive any greater payment under Section 8.3 or 8.4 than such
Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrowers' prior written
consent or by reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such
Lender to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
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SECTION 9.7 Collateral. Each of the Lenders represents to the Agent and
each of the other Lenders that it in good faith is not relying upon any "margin
stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.8 Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this Agreement or
any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in and, for the purposes hereof, Borrowers hereby
submit to the nonexclusive jurisdiction of, the courts of the State of New York
located in the City of New York or of the United States of America for the
Southern District of New York, and, by execution and delivery of this Agreement,
the Borrowers hereby accept for themselves and in respect of their property,
generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts and appellate courts from any thereof. Borrowers irrevocably consent to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the hand delivery, or mailing of copies thereof by
registered or certified mail, postage prepaid, to Borrowers at their address set
forth below. Borrowers hereby irrevocably waive any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Loan Document brought in the courts referred to above and hereby further
irrevocably waive and agree not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of the Agent or any
Lender to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against Borrowers in any other
jurisdiction.
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SECTION 9.9 Marshalling; Recapture. Neither the Agent nor any Lender shall
be under any obligation to xxxxxxxx any assets in favor of Borrowers or any
other party or against or in payment of any or all of the Obligations. To the
extent any Lender receives any payment by or on behalf of Borrowers, which
payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to Borrowers or
their estates, trustees, receivers, custodians or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such payment or repayment, the Obligations or part thereof which has
been paid, reduced or satisfied by the amount so repaid shall be reinstated by
the amount so repaid and shall be included within the liabilities of Borrowers
to such Lender as of the date such initial payment, reduction or satisfaction
occurred.
SECTION 9.10 Counterparts; Integration; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Agent of counterparts
hereof signed by each of the parties hereto (or, in the case of any party as to
which an executed counterpart shall not have been received, receipt by the Agent
in form satisfactory to it of telegraphic, telex or other written confirmation
from such party of execution of a counterpart hereof by such party).
SECTION 9.11 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENT AND
THE LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.12 Survival. Subject to Section 9.14 hereof, all indemnities set
forth herein shall survive the execution and delivery of this Agreement and the
other Loan Documents and the making and repayment of the Loan hereunder.
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SECTION 9.13 Domicile of Loans. Each Lender may transfer and carry its
share of indebtedness evidenced by the Notes at, to or for the account of any
domestic or foreign branch office, subsidiary or affiliate of such Lender,
provided that such transfer does not materially increase the costs incurred by
Borrowers in connection with the Loan.
SECTION 9.14 Limitation of Liability.
(a) No claim may be made by the Borrowers or any other Person
against the Agent or any Lender or the affiliates, directors, officers,
employees, attorneys or agent of any of them for any consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement or by the other Loan Documents, or any act, omission or event
occurring in connection therewith, and the Borrowers hereby waive, release and
agree not to xxx upon any claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
(b) The Agent or any Lender may look solely to the Borrowers'
interest in the Properties in seeking to enforce the Borrowers' liability and
obligations hereunder, and the lien of any judgment against any Borrower and any
proceeding instituted on, under or in connection with any Note or any of the
other Loan Documents shall extend to all property now or hereafter owned by any
Borrowers and encumbered by the Loan Documents and any proceeds from the sale of
any Property.
(c) Except as set forth in the Environmental Guaranty and the
Mortgage, no personal liability shall be asserted or enforceable against
Borrowers, any of the partners of the Borrowers, or its directors, officers,
agents, shareholders, partners, members, affiliates or employees (collectively,
the "Non-Recourse Parties") by the Agent or any Lender in respect of the
Obligations, this Agreement or any other Loan Document, or the making, issuance
or transfer thereof, all such liability, if any, being expressly waived by the
Agent or any Lender; provided, however, that nothing in this Agreement or any
other Loan Document shall be construed so as to exonerate or exculpate any
Non-Recourse Party from the payment of any liability, loss or damage suffered by
Agent or any Lender by reason of (a) breach by Borrower of any representations
or warranties contained herein or any Loan
96
Document with respect to ERISA, (b) all environmental indemnification provisions
contained herein or in any Loan Document or (c) fraud, gross negligence or
wilful misconduct by any Borrower or any General Partner, including, without
limitation, the misapplication of insurance or condemnation proceeds.
SECTION 9.15 Contracts of Contractors. No contract entered into by the
Borrowers after the Closing Date shall provide that any claim can be made
against the Agent or any Lender under any circumstances whatsoever.
SECTION 9.16 Amounts Payable on Demand. Notwithstanding anything set forth
herein or in any other Loan Documents to the contrary, any amounts payable
hereunder by Borrowers, other than interest or principal payments to be made
hereunder or thereunder, or any administrative fees to be paid hereunder, shall
be payable upon written demand therefore.
SECTION 9.17 Lender's Failure to Fund.
(a) Unless the Agent shall have received notice from a Lender prior
to the Closing Date that such Lender will not make available to the Agent such
Lender's share of the Loan, the Agent may assume that such Lender has made such
share available to the Agent on the Closing Date and the Agent may, in reliance
upon such assumption, make available to the Borrowers on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such share available to the Agent with respect to any funding other than on
the Closing Date and Agent shall, in its sole discretion, have made such
corresponding amount available to Borrowers, such Lender severally agrees and
each Borrower jointly and severally agrees to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrowers until the date such
amount is repaid to the Agent, at (i) in the case of the Borrowers, a rate per
annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.6 and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's loan
for purposes of this Agreement. Nothing contained in this Section shall be
deemed to reduce the Commitment of any Lender or in any way affect the rights of
Borrowers with respect to any
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Defaulting Lender or Agent. The failure of any Lender to make available to the
Agent such Lender's share of the Loan shall not relieve any other Lender of its
obligations to fund its Commitment.
(b) As used herein, the following terms shall have the meanings set
forth below:
(i) "Defaulting Lender" shall mean any Lender which (x) does not
advance to the Borrowers such Lender's pro rata share of the Loan in accordance
herewith for a period of five (5) Domestic Business Days after notice of such
failure from the Agent, (y) shall otherwise fail to perform such Lender's
obligations under the Loan Documents, including, without limitation, under
Section 9.18 hereof, for a period of five (5) Domestic Business Days after
notice of such failure from the Agent, or (z) shall fail to pay the Agent or any
other Lender, as the case may be, upon demand, such Lender's pro rata share of
any reasonable costs, expenses or disbursements incurred or made by the Agent
pursuant to the terms of the Loan Documents, for a period of five (5) Domestic
Business Days after notice of such failure from the Agent, and in all cases,
such failure is not as a result of a good faith dispute as to whether such
advance is properly required to be made pursuant to the provisions of this
Agreement, or as to whether such other performance or payment is properly
required pursuant to the provisions of this Agreement.
(ii) "Payment in Full" means, as of any date, the receipt by the
Lenders of an amount of cash, in lawful currency of the United States,
sufficient to indefeasibly pay in full all Senior Debt.
(iii) "Senior Debt" means (x) collectively, any and all
indebtedness, obligations and liabilities of the Borrowers to the Lenders who
are not Defaulting Lenders from time to time, whether fixed or contingent,
direct or indirect, joint or several, due or not due, liquidated or
unliquidated, determined or undetermined, arising by contract, operation of law
or otherwise, whether on open account or evidenced by one or more instruments,
and whether for principal, premium, interest (including, without limitation,
interest accruing after the filing of a petition initiating any proceeding
referred to in Section 6.1(h) or (i)), reimbursement for fees, indemnities,
costs, expenses or otherwise, which arise under, in connection with or in
respect of the Loan
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or the Loan Documents or otherwise relate to all or any portion of the
Properties (except for interest due hereunder), and (y) any and all deferrals,
renewals, extensions and refundings of, or amendments, restatements,
rearrangements, modifications or supplements to, any such indebtedness,
obligation or liability.
(iv) "Subordinated Debt" means (x) any and all indebtedness,
obligations and liabilities of Borrowers to one or more Defaulting Lenders from
time to time, whether fixed or contingent, direct or indirect, joint or several,
due or not due, liquidated or unliquidated, determined or undetermined, arising
by contract, operation of law or otherwise, whether on open account or evidenced
by one or more instruments, and whether for principal, premium, interest
(including, without limitation, interest accruing after the filing of a petition
initiating any proceeding referred to in Section 6.1(h) or (i)), reimbursement
for fees, indemnities, costs, expenses or otherwise, which arise under, in
connection with or in respect of the Loan or the Loan Documents or otherwise
relate to all or any portion of the Properties (except for interest due
hereunder), and (y) any and all deferrals, renewals, extensions and refundings
of, or amendments, restatements, rearrangements, modifications or supplements
to, any such indebtedness, obligation or liability.
(c) Immediately upon a Lender's becoming a Defaulting Lender
hereunder and at all times thereafter unless and until such time as a Defaulting
Lender shall fully cure any and all defaults on the part of such Defaulting
Lender under the Loan Documents or otherwise existing in respect of the Loan,
this Agreement or the other Loan Documents, and unconditionally pay to the Agent
such Defaulting Lender's pro rata share of all costs, expenses and disbursements
required to be paid or reimbursed pursuant to the terms of the Loan Documents,
including this Agreement, no Defaulting Lender shall, prior to Payment in Full
of all Senior Debt:
(i) accelerate, demand payment of, xxx upon, collect, or receive any
payment upon, in any manner, or satisfy or otherwise discharge, any Subordinated
Debt, whether for principal, interest and otherwise (except for interest due
hereunder);
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(ii) take or enforce any Liens to secure Subordinated Debt or attach
or levy upon any assets of Borrowers, to enforce any Subordinated Debt;
(iii) enforce or apply any security for any Subordinated Debt; or
(iv) incur any debt or liability, or the like, to, or receive any
loan, return of capital, advance, gift or any other property, from, the
Borrowers.
(d) In the event of:
(i) any insolvency, bankruptcy, receivership, liquidation,
dissolution, reorganization, readjustment, composition or other similar
proceeding relating to Borrowers;
(ii) any liquidation, dissolution or other winding-up of any
Borrower, voluntary or involuntary, whether or not involving insolvency,
reorganization or bankruptcy proceedings;
(iii) any assignment by any Borrower for the benefit of creditors;
(iv) any sale or other transfer of all or substantially all assets
of any Borrower; or
(v) any other marshalling of the assets of any Borrower;
each of the Lenders shall first have received Payment in Full of all Senior Debt
before any payment or distribution, whether in cash, securities or other
property, shall be made in respect of or upon any Subordinated Debt. Any payment
or distribution, whether in cash, securities or other property that would
otherwise be payable or deliverable in respect of Subordinated Debt to any
Defaulting Lender but for this Agreement shall be paid or delivered directly to
the Agent for distribution to the Lenders in accordance with this Agreement
until Payment in Full of all Senior Debt. If any Defaulting Lender receives any
such payment or distribution, it shall promptly pay over or deliver the same to
the Agent for application in accordance with the preceding sentence.
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(e) Each Defaulting Lender shall file in any bankruptcy or other
proceeding of any Borrower in which the filing of claims is required by law, all
claims relating to Subordinated Debt that such Defaulting Lender may have
against any Borrower and assign to the Lenders all rights of such Defaulting
Lender thereunder. If such Defaulting Lender does not file any such claim prior
to forty-five (45) days before the expiration of the time to file such claim,
Agent, as attorney-in-fact for such Defaulting Lender, is hereby irrevocably
authorized to do so in the name of such Defaulting Lender or, in Agent's sole
discretion, to assign the claim to a nominee and to cause proof of claim to be
filed in the name of such nominee. The foregoing power of attorney is coupled
with an interest and cannot be revoked. The Agent shall, to the exclusion of
each Defaulting Lender, have the sole right with respect to any Defaulting
Lender, subject to Section 9.5 hereof, to accept or reject any plan proposed in
any such proceeding and to take any other action that a party filing a claim is
entitled to take. In all such cases, whether in administration, bankruptcy or
otherwise, the Person or Persons authorized to pay such claim shall pay to Agent
the amount payable on such claim and, to the full extent necessary for that
purpose, each Defaulting Lender hereby transfers and assigns to the Agent all of
the Defaulting Lender's rights to any such payments or distributions to which
Defaulting Lender would otherwise be entitled.
(f) (i) If any payment or distribution of any character or any
security, whether in cash, securities or other property, shall be received by
any Defaulting Lender in contravention of any of the terms hereof, such payment
or distribution or security shall be received in trust for the benefit of, and
shall promptly be paid over or delivered and transferred to, Agent for
application to the payment of all Senior Debt, to the extent necessary to
achieve Payment in Full. In the event of the failure of any Defaulting Lender to
endorse or assign any such payment, distribution or security, Agent is hereby
irrevocably authorized to endorse or assign the same as attorney-in-fact for
such Defaulting Lender.
(ii) Each Defaulting Lender shall take such action (including,
without limitation, the execution and filing of a financing statement with
respect to this Agreement and the execution, verification, delivery and filing
of proofs of claim, consents, assignments or other instructions that Agent may
require from time to time in
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order to prove or realize upon any rights or claims pertaining to Subordinated
Debt or to effectuate the full benefit of the subordination contained herein) as
may, in Agent's sole and absolute discretion, be necessary or desirable to
assure the effectiveness of the subordination effected by this Agreement.
(g) (i) Each Lender that becomes a Defaulting Lender understands and
acknowledges by its execution hereof that each other Lender is entering into
this Agreement and the Loan Documents in reliance upon the absolute
subordination in right of payment and in time of payment of Subordinated Debt to
Senior Debt as set forth herein
(ii) Only upon the Payment in Full of all Senior Debt shall any
Defaulting Lender be subrogated to any remaining rights of the Lenders which are
not Defaulting Lenders to receive payments or distributions of assets of the
Borrowers made on or applicable to any Senior Debt.
(iii) Notwithstanding the order of filing of any financing
statements or other security instruments, or the physical possession of the
Properties or any of the other collateral, or the order of granting of any
liens, each Defaulting Lender confirms and agrees that any Liens held by such
Defaulting Lender upon property of Borrowers to secure any Subordinated Debt,
whether now existing or hereinafter acquired and all rights, remedies, products
and proceeds related thereto, are and at all times shall be, totally and
absolutely expressly junior and subordinate to the liens in favor of the Lenders
and all rights, remedies, products and proceeds relating thereto.
(iv) Each Defaulting Lender agrees that it will deliver all
instruments or other writings evidencing any Subordinated Debt held by it to the
Agent, promptly after request therefor by the Agent.
(v) Until Payment in Full of all Senior Debt, each Defaulting Lender
hereby irrevocably waives any requirement for marshalling by Agent or the
Lenders of the assets of Borrowers in connection with any foreclosure of the
Liens of the Agent or of the Lenders on any collateral granted to secure the
Subordinated Debt (or the proceeds thereof) or any other realization upon such
collateral.
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(vi) No Defaulting Lender may at any time sell, assign or otherwise
transfer any Subordinated Debt, or any portion thereof, including, without
limitation, the granting of any Lien thereon, unless and until the proposed
transferee shall have assumed in writing the obligation of the Defaulting Lender
to the Lenders under this Agreement, in a form reasonably acceptable to the
Agent.
(vii) If any of the Senior Debt or any Lien securing same, should be
invalidated, avoided or set aside, the subordination provided for herein
nevertheless shall continue in full force and effect and, as between the Lenders
which are not Defaulting Lenders and all Defaulting Lenders, shall be and be
deemed to remain in full force and effect.
(viii) Each Defaulting Lender hereby irrevocably waives, in respect
of Subordinated Debt, all rights (x) under Sections 361 through 365, 502(e) and
509 of the Bankruptcy Code (or any similar sections hereafter in effect under
any other Federal or state laws or legal or equitable principles relating to
bankruptcy, insolvency, reorganizations, liquidations or otherwise for the
relief of debtors or protection of creditors), and (y) to seek or obtain
conversion to a different type of proceeding or to seek or obtain dismissal of a
proceeding, in each case in relation to a bankruptcy, reorganization, insolvency
or other proceeding under similar laws with respect to the Borrowers. Without
limiting the generality of the foregoing, each Defaulting Lender hereby
specifically waives (A) the right to seek relief from the automatic stay under
Section 362 of the Bankruptcy Code in respect of any collateral granted to
secure Subordinated Debt (or the proceeds thereof); (B) the right to seek to
give credit (secured or otherwise) to the Borrowers in any way under Section 364
of the Bankruptcy Code unless the same is subordinated in all respects to Senior
Debt in a manner acceptable to the Agent in its sole and absolute discretion;
(C) the right to take a position inconsistent with or contrary to that of the
Agent (including a position by the Agent to take no action) if Borrowers seek to
use, sell or lease collateral granted to secure Subordinated Debt (or the
proceeds or products thereof); (D) the right to receive any collateral security
(including any "super priority" or equal or "priming" or replacement Lien) for
any Subordinated Debt unless the Lenders which are not Defaulting Lenders have
received a senior position acceptable to such non-Defaulting Lenders in their
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sole and absolute discretion to secure all Senior Debt (in the same collateral
to the extent collateral is involved); and (E) the right to seek adequate
protection in respect of collateral granted to secure Subordinated Debt (or the
proceeds or products thereof) under Section 363 or 361 of the Bankruptcy Code.
(h) (i) In addition to and not in limitation of the subordination
effected by this Section 9.17, the Agent and each of the Lenders which are not
Defaulting Lenders may in their respective sole and absolute discretion, also
exercise any and all other rights and remedies available at law or in equity in
respect of a Defaulting Lender; and
(ii) The Agent shall give each of the Lenders notice of the
occurrence of a default under this Section 9.17 by a Defaulting Lender and if
the Agent and/or one or more of the other Lenders shall, at their option, fund
any amounts required to be paid or advanced by a Defaulting Lender, the other
Lenders who have elected not to fund any portion of such amounts shall not be
liable for any reimbursements to the Agent and/or to such other funding Lenders.
(i) Notwithstanding anything to the contrary contained or implied
herein, a Defaulting Lender shall not be entitled to vote on any matter as to
which a vote by the Lenders is required hereunder, including, without
limitation, any actions or consents on the part of the Agent as to which the
approval or consent of all the Lenders, the Super Required Lenders or the
Required Lenders is required under Section 9.5 or elsewhere, so long as such
Lender is a Defaulting Lender; provided, however, that in the case of any vote
requiring the unanimous consent of the Lenders, if all the Lenders other than
the Defaulting Lender shall have voted in accordance with each other, then the
Defaulting Lender shall be deemed to have voted in accordance with such Lenders.
(j) Each of the Agent and any one or more of the Lenders which are
not Defaulting Lenders may, at their respective option, (i) advance to the
Borrowers such Lender's pro rata share of the Loans not advanced by a Defaulting
Lender in accordance with the Loan Documents, or (ii) pay to the Agent such
Lender's pro rata share of any costs, expenses or disbursements incurred or made
by the Agent pursuant to the terms of this Agreement
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not theretofore paid by a Defaulting Lender. Immediately upon the making of any
such advance by the Agent or any one of the Lenders, such Lender's pro rata
share and the pro rata share of the Defaulting Lender shall be recalculated to
reflect such advance. All payments, repayments and other disbursements of funds
by the Agent to Lenders shall thereupon and, at all times thereafter be made in
accordance with such Lender's recalculated pro rata share unless and until a
Defaulting Lender shall fully cure all defaults on the part of such Defaulting
Lender under the Loan Documents or otherwise existing in respect of the Loans or
this Agreement, at which time the pro rata share of the Lender(s) which advanced
sums on behalf of the Defaulting Lender and of the Defaulting Lender shall be
restored to their original percentages.
SECTION 9.18 Swap Agreement Participation.
(a) Lenders acknowledge that Counterparty and the Borrowers have
entered into the Swap Agreement, pursuant to which the Counterparty and
Borrowers have entered into an interest rate swap transaction on the terms and
conditions set forth in a Confirmation, dated the date hereof (the
"Confirmation"). The Lenders hereby acknowledge that they have reviewed and
approved the Swap Agreement and the Confirmation. Each Lender set forth on
Schedule A attached hereto (each, a "Participant" and collectively, the
"Participants") shall, pursuant to the provisions of this Section 9.18, fund
such Participant's pro rata share (based on such Participant's percentage
interest as set forth on Schedule A attached hereto as the same may be amended
from time to time) of any amount payable by Borrowers under Section 6 of the
Swap Agreement (the "Termination Amount") in respect of the interest rate swap
transaction entered into by the Counterparty and Borrowers pursuant to the
Confirmation (collectively, a "Swap Transaction"), which Termination Amount is
unpaid as of the date when due (or the payment of which Termination Amount is
rescinded or must otherwise be restored or returned by Counterparty upon the
bankruptcy, insolvency, dissolution or reorganization of either Borrower). The
Counterparty shall notify each Participant by facsimile prior to the date upon
which such Termination Amount is to be funded by such Participant, in which
notice Counterparty shall state (i) the aggregate Termination Amount, (ii) the
date when the Termination Amount is to be funded by Participants, and (iii) the
respective amounts of such Termination Amount which are to be funded by each
Participant. Any such
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facsimile notice by Counterparty to Participants shall be promptly confirmed by
Counterparty to Participants by telephone or letter. Such notice shall be given
by Counterparty to Participants not less than three (3) Domestic Business Days
before the date such Termination Amount is to be funded by Participants. On the
date specified in such notice each Participant shall transfer to the
Counterparty by Federal funds wire or in other immediately available New York
City funds in United States dollars the amount specified as such Participant's
pro rata share (based on such Participant's percentage interest set forth on
Schedule A attached hereto as the same may be amended from time to time) of the
Termination Amount due as of the date specified in such notice. If a particular
Participant shall fail for any reason to fund its pro rata share of the
Termination Amount, in accordance with this Section 9.18 and the notice given by
the Counterparty to such Participant hereto, such Participant shall pay the
Counterparty interest thereon from the date specified for such funding in such
notice, until paid to the Counterparty, at a rate per annum equal to the Federal
Funds Rate from time to time during such period.
(b) Upon payment by any Participant of its pro rata portion of the
Termination Amount pursuant to subsection (a) above: (i) such Participant shall,
subject to this Agreement, be subrogated to its pro rata share of the rights of
the Counterparty against Borrowers under the Swap Agreement, including, without
limitation, the right to its respective pro rata portion of default interest
accruing on the Termination Amount from time to time under the Swap Agreement
and (ii) the Swap Agreement shall thereafter constitute part of the Loan
Documents, and the Termination Amount shall thereafter be treated as if it were
additional interest on the Indebtedness represented by the Notes and secured by
the Mortgage, subject to the terms hereof, including, without limitation, for
the purpose of reimbursement of expenses and costs and the taking of action by
the Counterparty pursuant to the terms hereof. In such event, and for so long as
the Termination Amount or any portion thereof shall be outstanding, (i) the
term, "Required Lenders" shall be modified to mean at any time Lenders and
Participants holding, as the case may be, Notes and percentage interests in the
Swap Agreement which evidence at least 51% of the aggregate of (x) the unpaid
principal amount of the Notes which are entitled to vote pursuant to the terms
hereof, and (y) the portion of the Termination Amount paid by such Participants
and unpaid by the Borrowers;
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and (ii) the term, "Super Required Lenders" shall be modified to mean at any
time Lenders and Participants holding, as the case may be, Notes and percentage
interests in the Swap Agreement which evidence at least 66 2/3% of the aggregate
of (x) the unpaid principal amount of the Notes which are entitled to vote
pursuant to the terms hereof, and (y) the portion of the Termination Amount paid
by such Participants and unpaid by the Borrowers. In the event that the
Counterparty shall be obligated (or, in its sole discretion, shall otherwise
agree) to pay Borrowers an amount pursuant to Section 6 of the Swap Agreement in
respect of an early termination of any Swap Transaction and shall, in lieu of
making such payment, apply the amount of such payment as a set-off in reduction
of the Loans, then each Participant shall be entitled to receive from the
Counterparty payment of an amount equal to its pro rata share (based on such
Participant's percentage interest as set forth on Schedule A attached hereto as
the same may be amended from time to time) of such application. Prior to any
Participant's paying its pro rata portion of the Termination Amount as provided
in this Section 9.18: (i) such Participant shall have no interest in the Swap
Agreement or any Swap Transaction or any payments made by or to Borrower in
connection therewith, and (ii) no consent of such Participant shall be required
for the taking of any action by the Counterparty with respect to the Swap
Agreement or any Swap Transaction, including, without limitation the designation
of an early termination date thereunder; provided, however, that (i) the
Counterparty shall not without the prior consent of a majority in interest of
the Participants make or consent to any materially adverse amendment,
modification or waiver of any of the terms, covenants, provisions or conditions
of the Swap Agreement or any Swap Transaction (once entered into thereunder) and
(ii) the Counterparty shall not without the prior consent of each Participant
release, reconvey or change, in whole or in part, any collateral or security
interest held under the Swap Agreement or any Swap Transaction.
(c) Each Participant's obligations under this Section 9.18 shall
remain in full force and effect, notwithstanding repayment of the Loans and
termination of all Swap Transactions and shall be independent of, and shall
survive, the discharge of the Indebtedness, the release of the Lien created
under the Mortgage, and/or the conveyance of title to the Property to any
purchaser
107
or designee in connection with a foreclosure of the Xxxx-
xxxx or conveyance in lieu of foreclosure.
SECTION 9.19 Confidentiality. Prior to the occurrence and continuance of
an Event of Default, the Agent and each Lender agree to keep confidential all
non-public information provided to it by the Borrowers pursuant to this
Agreement that is designated by the Borrowers as confidential (it being
understood that Leases, any Major Lease Term Sheet, leasing guidelines and
property operating statement are designated as confidential); provided that
nothing herein shall prevent the Agent or any Lender from disclosing any such
information, (a) to the Agent, any other Lender or any affiliate of any Lender,
(b) to any Assignee or prospective Assignee which has agreed in writing to
comply with the provisions of this Section 9.19, (c) to the employees,
directors, agents, attorneys, accountants and other professional advisors of any
Lender, Assignee, prospective Assignee or their respective affiliates, (d) upon
the request or demand of any Governmental Authority having or asserting
jurisdiction over either Agent or any Lender, (e) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any requirement of law, (f) if requested or required to do so in
connection with any litigation or similar proceeding, (g) which has been
publicly disclosed other than in breach of this Section 9.19, (h) in connection
with the exercise of any remedy hereunder or under any other Loan Document or
(i) upon the advice of counsel that such disclosure is required by law.
SECTION 9.20 No Joint Venture. The relationship of the Agent and the
Lenders to the Borrowers is one of a creditor to a debtor, and neither the Agent
nor any Lender is a joint venturer or partner of the Borrowers.
108
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.
1290 PARTNERS, L.P.
By: 1290 GP Corp., General Partner
By:
Name:
Title:
237 PARK PARTNERS, L.P.
By: 237 GP Corp., General Partner
By:
Name:
Title:
Commitments
$80,000,000.00 THE CHASE MANHATTAN BANK
By:
Name:
Title:
$80,000,000.00 BANK OF BOSTON
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
$80,000,000.00 BHF-BANK AKTIENGESELLSCHAFT
By:
Name: Xxxxxx Xxxxx
Title: Vice President
By:
Name:
Title:
$80,000,000.00 BAYERISCHE HYPOTHEKENUND
WECHSEL-BANK AKTIENGESELLSCHAFT
By:
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
By:
Name:
Title:
$50,000,000.00 BANK OF TOKYO-MITSUBISHI, LTD.
By:
Name: Xxxx Xxxx
Title: Senior Vice President and
Manager
$50,000,000.00 BANK AUSTRIA
By:
Name: Xxxxx X. Xxxx
Title: Vice President
By:
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Treasurer
110
Total Commitments
$420,000,000.00
THE CHASE MANHATTAN BANK, as Agent
By:
Name:
Title:
Domestic and Euro-Currency
Lending Office:
The Chase Manhattan Bank
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx Xxxxxx
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Funding Instructions:
The Chase Manhattan Bank
Real Estate Finance
ABA # 021000-021
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit: Chase Real Estate Finance
Account Number: 000-0-00000
Reference: Loan No. 564-4715
111
EXHIBIT A
NOTE
$ ________________ New York, New York
as of October , 199_
For value received, 1290 PARTNERS, L.P., a Delaware limited partnership,
and 237 PARK PARTNERS, L.P., a Delaware limited partnership, (collectively, the
"Borrowers"), jointly and severally promise to pay to the order of ____________
(the "Lender"), for the account of its Applicable Lending Office, the amount of
_______________ ($_________) (the "Principal Amount") as defined below) on the
dates and in the amounts provided for in the Credit Agreement. The Borrowers
jointly and severally promise to pay interest on the unpaid Principal Amount on
the dates and at the rate or rates provided for in the Credit Agreement. All
such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
the Agent.
The portion of the Loan made by the Lender, the respective types and
maturities thereof and all repayments of the Principal Amount shall be recorded
by the Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect the Principal Amount then outstanding may be endorsed by the Lender
on the schedule attached hereto, or on a continuation of such schedule attached
to and made a part hereof; provided that the failure of the Lender to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated as
of October __, 1996 among the Borrowers, the banks listed on the signature pages
thereof and The Chase Manhattan Bank, as Agent (as the same may be amended from
time to time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit Agreement
for provisions for the amortiza-
A-1
tion of the Principal Amount, prepayment hereof and the acceleration of the
maturity hereof. The provisions of Section 9.14 of the Credit Agreement shall be
deemed to be incorporated herein by reference.
1290 PARTNERS, L.P.
By: 1290 GP Corp., General Partner
By:
Name:
Title:
237 PARK PARTNERS, L.P.
By: 237 GP Corp., General Partner
By:
Name:
Title:
A-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------
Type Amount
Amount of of Interest
Date of Loan Loan Principal Period Notation
Tranche Tranche Repaid Expiration Made By
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B-1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................ 1
SECTION 1.1 Definitions...................................... 1
SECTION 1.2 Accounting Terms and Determinations.............. 25
ARTICLE II THE CREDITS............................................ 26
SECTION 2.1 Commitments to Lend.............................. 26
SECTION 2.2 Method of Electing Interest Rates................ 26
SECTION 2.3 Notice to Lenders; Funding of Loan............... 28
SECTION 2.4 Promissory Notes................................. 28
SECTION 2.5 Maturity of the Loan............................. 29
SECTION 2.6 Interest Rates................................... 29
SECTION 2.7 Fees............................................. 31
SECTION 2.8 Amortization of Principal; Mandatory
Termination or Prepayment of Loans............... 31
SECTION 2.9 Optional Prepayments; Property Release........... 34
SECTION 2.10 General Provisions as to Payments................ 38
SECTION 2.11 Funding Losses................................... 39
SECTION 2.12 Computation of Interest and Fees................. 39
SECTION 2.13 Intentionally Omitted............................ 39
SECTION 2.14 Cash Collateral Account.......................... 39
SECTION 2.15 Expiring Lease Costs Reserve..................... 40
ARTICLE III CONDITIONS............................................. 41
SECTION 3.1 Closing.......................................... 41
ARTICLE IV BORROWERS' REPRESENTATIONS AND WARRANTIES.............. 47
SECTION 4.1 Existence and Power.............................. 47
SECTION 4.2 Power and Authority.............................. 48
SECTION 4.3 No Violation..................................... 49
SECTION 4.4 Intentionally Deleted............................ 49
SECTION 4.5 Litigation....................................... 50
SECTION 4.6 Compliance with ERISA............................ 50
SECTION 4.7 Environmental Compliance......................... 50
SECTION 4.8 Taxes............................................ 52
SECTION 4.9 Full Disclosure.................................. 52
SECTION 4.10 Solvency......................................... 52
SECTION 4.11 Use of Proceeds; Margin Regulations.............. 53
SECTION 4.12 Governmental Approvals........................... 53
SECTION 4.13 Investment Company Act; Public Utility
Holding Company Act.............................. 53
SECTION 4.14 Single Purpose Entity............................ 53
i
Page
SECTION 4.15 Patents, Trademarks, etc.......................... 53
SECTION 4.16 Ownership of Property............................. 54
SECTION 4.17 No Default........................................ 54
SECTION 4.18 Licenses, etc..................................... 54
SECTION 4.19 Compliance With Law............................... 54
SECTION 4.20 No Burdensome Restrictions........................ 54
SECTION 4.21 Brokers' Fees..................................... 55
SECTION 4.22 Intentionally Omitted ............................ 55
SECTION 4.23 Insurance......................................... 55
SECTION 4.24 Security Interests and Liens...................... 55
SECTION 4.25 Organizational Documents.......................... 55
SECTION 4.26 Construction...................................... 56
SECTION 4.27 Structural Defects and Violation of Law........... 56
SECTION 4.28 Budget............................................ 56
SECTION 4.29 Principal Offices................................. 56
ARTICLE V AFFIRMATIVE AND NEGATIVE COVENANTS...................... 56
SECTION 5.1 Information....................................... 57
SECTION 5.2 Payment of Obligations............................ 61
SECTION 5.3 Maintenance of Property; Insurance................ 61
SECTION 5.4 Conduct of Business and Maintenance of
Existence......................................... 62
SECTION 5.5 Compliance with Laws.............................. 62
SECTION 5.6 Inspection of Property, Books and Records......... 62
SECTION 5.7 Existence......................................... 63
SECTION 5.8 Financial Covenants............................... 63
SECTION 5.9 Restriction on Fundamental Changes................ 63
SECTION 5.10 Sale of the Property.............................. 65
SECTION 5.11 Changes in Business............................... 65
SECTION 5.12 Fiscal Year; Fiscal Quarter....................... 65
SECTION 5.13 Margin Stock...................................... 65
SECTION 5.14 Payments.......................................... 65
SECTION 5.15 Single Purpose Entity............................. 65
SECTION 5.16 Liability of Lenders.............................. 65
SECTION 5.17 Mechanics' Liens.................................. 66
SECTION 5.18 Intentionally Deleted............................. 66
SECTION 5.19 Major Alterations................................. 66
SECTION 5.20 Leases............................................ 68
SECTION 5.21 Construction Consultant........................... 69
SECTION 5.22 Property Manager.................................. 70
SECTION 5.23 Leasing Agent..................................... 70
SECTION 5.24 Asset Manager..................................... 70
SECTION 5.25 Material Contracts................................ 71
SECTION 5.26 Security Deposits..................................... 71
ii
Page
ARTICLE VI EVENTS OF DEFAULT...................................... 71
SECTION 6.1 Events of Default................................ 71
SECTION 6.2 Rights and Remedies.............................. 75
SECTION 6.3 Notice of Default................................ 77
ARTICLE VII THE AGENT.............................................. 77
SECTION 7.1 Appointment and Authorization.................... 77
SECTION 7.2 Agent and Affiliates............................. 77
SECTION 7.3 Action by Agent.................................. 77
SECTION 7.4 Consultation with Experts........................ 78
SECTION 7.5 Liability of Agent............................... 78
SECTION 7.6 Indemnification.................................. 78
SECTION 7.7 Credit Decision.................................. 79
SECTION 7.8 Successor Agent.................................. 79
SECTION 7.9 Documents........................................ 80
SECTION 7.10 Decisions........................................ 80
ARTICLE VIII CHANGE IN CIRCUMSTANCES................................ 81
SECTION 8.1 Basis for Determining Interest Rate
Inadequate or Unfair............................. 81
SECTION 8.2 Illegality....................................... 81
SECTION 8.3 Increased Cost and Reduced Return................ 82
SECTION 8.4 Taxes............................................ 84
SECTION 8.5 Alternate Base Rate Loans Substituted
for Affected Euro-Dollar Loans................... 86
ARTICLE IX MISCELLANEOUS.......................................... 87
SECTION 9.1 Notices.......................................... 87
SECTION 9.2 No Waivers....................................... 87
SECTION 9.3 Expenses; Indemnification........................ 88
SECTION 9.4 Sharing of Set-Offs.............................. 90
SECTION 9.5 Amendments and Waivers........................... 90
SECTION 9.6 Successors and Assigns........................... 92
SECTION 9.7 Collateral....................................... 94
SECTION 9.8 Governing Law; Submission to Jurisdiction........ 94
SECTION 9.9 Marshalling; Recapture........................... 95
SECTION 9.10 Counterparts; Integration; Effectiveness......... 95
SECTION 9.11 WAIVER OF JURY TRIAL............................. 95
SECTION 9.12 Survival......................................... 95
SECTION 9.13 Domicile of Loans................................ 96
SECTION 9.14 Limitation of Liability.......................... 96
SECTION 9.15 Contracts of Contractors......................... 97
SECTION 9.16 Amounts Payable on Demand........................ 97
iii
SECTION 9.17 Lender's Failure to Fund......................... 97
SECTION 9.18 Swap Agreement Participation.................... 105
SECTION 9.19 Confidentiality................................. 108
SECTION 9.20 No Joint Venture................................ 108
Schedule A - Participants
Exhibit A - Note
Exhibit B - Intentionally Omitted
Exhibit C - Intentionally Omitted
Exhibit D - Leasing Status Report
Exhibit E - Intentionally Omitted
Exhibit F - Assignment and Assumption Agreement
Exhibit G - Permitted Liens
Exhibit H - Tenants to execute Subordination Agreements
Exhibit I - Leases subject to Expiring Lease Costs
Exhibit J - Form of Permitted Owner Certificate
iv
