Ex. 10.1
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment")
is made as of March 1, 1999, by and among TOWER REALTY OPERATING PARTNERSHIP,
L.P. (the "Borrower"), FLEET NATIONAL BANK, as Administrative Agent (the
"Administrative Agent"), XXXXXXX XXXXX & CO., as Syndication Agent and Arranger
(the "Syndication Agent and Arranger"), NATIONSBANK, N.A., as Documentation
Agent (the "Documentation Agent") and the BANKS listed on the signature pages
hereof.
W I T N E S S E T H:
WHEREAS, the Borrower and the Banks have entered into the Revolving
Credit Agreement, dated as of October 20, 1997 (the "Credit Agreement"); and
WHEREAS, the parties desire to modify the Credit Agreement upon the
terms and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement, and the
following terms shall have the respective meanings set forth below:
"810 0xx Xxxxxx" means 000 0xx Xxxxxx, X.X., x Xxx Xxxx limited
partnership and a Wholly-Owned Subsidiary of Borrower, having an
address c/o
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Tower Realty Trust, Inc., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
"First Boston" means Credit Suisse First Boston Mortgage Capital
LLC, a Delaware limited liability company.
"First Boston Assignment of Leases and Rents" means the
Assignment of Leases and Rents, dated as of December 31, 1997,
made by 000 0xx Xxxxxx, as assignor, in favor of First Boston,
as assignee, securing the First Boston Notes, as assigned to
Norwest.
"First Boston Loan" means, collectively, the loans evidenced by
the First Boston Notes.
"First Boston Loan Agreement" means the Loan Agreement, dated as
of December 31, 1997, by and between 000 0xx Xxxxxx, as
borrower, and First Boston, as lender, pursuant to which First
Boston made the First Boston Loan to 000 0xx Xxxxxx, as assigned
to Norwest.
"First Boston Loan Documents" means, collectively, the First
Boston Loan Agreement, the First Boston Notes, the First Boston
Mortgage, the First Boston Assignment of Leases and Rents and
all other agreements, documents and instruments evidencing,
securing or perfecting security interests granted in connection
with the First Boston Loan, as assigned to Norwest.
"First Boston Mortgage" means the Mortgage Consolidation,
Modification, Extension and Security Agreement, dated as of
December 31, 1997, by 000 0xx Xxxxxx, as mortgagor, in favor of
First Boston, as mortgagee, securing the First Boston Notes, as
assigned to Norwest.
"First Boston Notes" means, the Consolidated, Amended and
Restated Mortgage Note in the original principal amount of
$100,000,000, dated as of December 31, 1997, by 000 0xx Xxxxxx,
as maker, in favor of First Boston, as payee, as endorsed to
Norwest.
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"First Boston Retained Loan Documents" means, collectively, the
First Boston Loan Agreement, the First Boston Notes and the
First Boston Mortgage.
"Norwest" means Norwest Bank Minnesota, National Association, as
trustee under the Pooling and Servicing Agreement dated June 12,
1998 for the Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-FL1.
2. Applicable Margin. The definition of "Applicable Margin" is
hereby deleted and the following substituted therefor:
"Applicable Margin" means, with respect to each Euro-Dollar Loan
or Base Rate Loan, the respective percentages per annum
determined as of the Closing Date and thereafter at any time,
based on the Leverage Ratio as of the date of determination, in
accordance with the table set forth below. Any change in the
Leverage Ratio shall be effective as of the financial reporting
dates set forth in Section 5.1 hereof or as of the date of any
Borrowing on which the Leverage Ratio changes.
Applicable Margin Applicble
for Base Rate Margin for Euro-
Loans Dollar Loans
Leverage Ratio (% per annum) (% per annum)
------------------- -------------------- ----------------------
<30% 0.000 1.250
30% to <45% 0.125 1.375
45% to <55% 0.375 1.625
Notwithstanding the foregoing, however, if the sale of the
outstanding shares of the Company to Reckson Associates Realty
Corp., or an af-
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filiate thereof, shall not have closed on or before May 31,
1999, then the Applicable Margin, as of May 31, 1999, shall be
as follows:
Applicable Margin Applicable
for Base Rate Margin for Euro-
Loans Dollar Loans
Leverage Ratio (% per annum) (% per annum)
------------------ ------------------ ----------------------
<30% 0.000 1.625
30% to <45% 0.125 1.750
45% to <55% 0.375 2.000
3. Amendment and Commitments. (a) The following definition is
hereby inserted after the definition of "Financial Statements":
"First Amendment to Revolving Credit Agreement" means the First
Amendment to Revolving Credit Agreement, dated as of March 1,
1999, by and among Borrower, Administrative Agent and the Banks,
amending this Agreement.
(b) The definition of "Commitment" is hereby
deleted and the following substituted therefor:
"Commitment" means, with respect to each Bank, the amount set
forth opposite the name of such Bank on the signature pages of
the First Amendment to Revolving Credit Agreement (and for each
Bank which is an Assignee, the amount set forth in the
Assumption Agreement entered into pursuant to Section 9.6(c) as
the Assignee's Commitment), as such amount may be reduced from
time to time pursuant to Section 2.10(e) or in connection with
an assignment to an Assignee.
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4. Loan Amount. The definition of "Loan Amount" is hereby deleted
and the following substituted therefor:
"Loan Amount" shall mean the amount of One
Hundred Sixty-Five Million Dollars
($165,000,000).
5. Maximum Loan Amount. The Definition of "Maximum Loan Amount" is
hereby deleted and the following substituted therefor:
"Maximum Loan Amount" means the Loan Amount, as the Loan Amount
may be reduced pursuant to Section 2.10(e), less the amount of
the Mortgage Loan outstanding from time to time under the
Restated Mortgage Note (as split pursuant to the Split Notes).
6. Mortgage Loan. (i) (a) The following definition is hereby
inserted after the definition of "Assignee":
"Assignment of Leases and Rents" means the Assignment of Leases
and Rents, dated as of March 1, 1999, by the
Borrower, as assignor, in favor of Administrative Agent for the
benefit of the Banks, as assignee.
(b) The following definitions are hereby inserted after the
definition of "Minority Holdings":
"Mortgage" means the Amended and Restated Mortgage, dated as of
March 1, 1999, by the Borrower, as mortgagor, in favor of
Administrative Agent for the benefit of the Banks, as mortgagee,
pursuant to which the First Boston Mortgage (as defined in the
First Amendment to Revolving Credit Agreement) has been
restated.
"Mortgage Loan" means the loan, in the principal amount of
$60,000,000, made by the Banks
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to Borrower as of March 1, 1999, evidenced and secured by the
Mortgage Loan Agreement, the Restated Mortgage Note, the
Mortgage, the Assignment of Leases and Rents and the other
security agreements referred to therein.
"Mortgage Loan Agreement" means the Mortgage Loan Agreement,
dated as of March 1, 1999, by and among Borrower, the Banks and
the Administrative Agent, pursuant to which the Banks have made
the Mortgage Loan to the Borrower.
"Mortgage Loan Guaranty" means the Unconditional Mortgage Loan
Guaranty Agreement, dated as of March 1, 1999, by the Company,
as the same may be amended, supplemented, modified or restated
from time to time.
"Mortgage Loan Title Policy" means the mortgagee's policy of
title insurance issued by Commonwealth Land Title Insurance
Company insuring for the benefit of the Administrative Agent the
Lien of the Mortgage in the amount of $60,000,000 acceptable to
the Administrative Agent and dated the Effective Date.
(c) The following definitions are hereby inserted after the
definition of "Required Banks":
"Restated Mortgage Note" means the Consolidated Amended and
Restated Mortgage Note, in the original principal amount of
$60,000,000.00, dated as of March 1, 1999, by the Borrower, as
maker, in favor of Administrative Agent for the benefit of the
Banks, as payee, pursuant to which the First Boston Notes (as
defined in the First Amendment to Revolving Credit Agreement)
have been consolidated, amended and restated in their entirety.
(d) The following definitions are hereby inserted after the
definition of "Solvent":
"Split Note" means a Split Mortgage Note, dated as of March 1,
1999, by the Borrower, as
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maker, in favor of a Bank, as payee, pursuant to which a portion
of the Restated Mortgage Note has been split from the
indebtedness thereunder and become payable to such Bank, the
aggregate of the respective principal amounts of each Split Note
being equal to the principal amount of the Restated Mortgage
Note and all of such split notes being referred to herein as the
"Split Notes".
(e) For all purposes under the Credit Agreement, including without
limitation all restrictions on the numbers and types of Borrowings which may be
outstanding under the Credit Agreement, the Mortgage Loan shall be included as a
Base Rate Loan or a Euro-Dollar Loan in accordance with the interest rate
election made by the Borrower under the Mortgage Loan Agreement.
7. Permitted Liens. The definition of "Permitted Liens" is hereby
amended to add the following after clause (f) thereof; "; and (g) the Lien on
the Unencumbered Asset commonly known as 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
created by the Mortgage."
8. Unencumbered Assets. Exhibit B to the Credit Agreement is hereby
deleted and Exhibit B annexed hereto and made a part hereof is substituted
therefor. The fact that the Unencumbered Asset commonly known as 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx is encumbered by the Mortgage and is the subject of
the Mortgage Loan notwithstanding, for all purposes under the Credit Agree-
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ment such asset is and shall be an Unencumbered Asset. For the avoidance of
doubt, the indebtedness constituting the Mortgage Loan shall be included for the
purpose of determining Total Outstanding Unsecured Indebtedness under the Credit
Agreement. For the purposes of the calculation of the Commitment Fee, the amount
outstanding under the Mortgage Loan shall be deemed to be drawn Commitments
under the Credit Agreement.
9. Dividends. Section 5.9(h) of the Credit Agreement is hereby
deleted and the following substituted therefor:
(h) Dividends. The Company shall not declare or make any
dividends or other payments or distributions other than
dividends at the Company's regular dividend rate from time
to time and stated dividends on the Company's preferred stock;
provided, however, that the Company shall not declare dividends
other than in the ordinary course of its business and provided,
further that such dividends in any fiscal quarter shall not be in
excess of 95% of its "Funds From Operations" (as defined, from
time to time, by NAREIT), provided further, however that the
Company may declare dividends in excess thereof to maintain its
status as a real estate investment trust under the Code.
10. Release of 000 Xxxxxxx Xxxxxx; Assignment of Mortgage.
Notwithstanding anything contained in the Credit Agreement, including, without
limitation, Section 5.12 and 5.13 thereof, to the contrary, other than in
connection with the repayment in full of the Obligations
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and the termination of the Commitments and the return of any Letter of Credit,
the consent of the Required Banks shall be required in order for the Borrower to
obtain a release of the property commonly known as 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx from the terms of the Credit Agreement as an Unencumbered Asset, or to
sell the same.
11. Events of Default. Section 6.1 of the Credit Agreement is hereby
amended by deleting the word "or" at the end of clause (o) thereof and the
period (".") at the end of clause (p) thereof and by adding the following after
clause (p) thereof:
"; or
(q) an "Event of Default" (as such term is defined in the
Mortgage Loan Agreement) occurs under the Mortgage Loan
Agreement."
12. Effective Date. This Amendment shall become effective when each
of the following conditions is satisfied (or waived by the Required Banks) (the
date such conditions are satisfied or waived being deemed the "Effective
Date"):
(a) the Borrower shall have executed and delivered to the
Administrative Agent a duly executed original of this Amendment;
(b) the Borrower shall have (i) caused 000 0xx Xxxxxx to have
(A) conveyed to the Borrower
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fee title to the real property and improvements thereon
identified as Block 1024, Lot 38 by the Tax Map of the City of
New York, commonly known as 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
and (B) assigned to the Borrower (and the Borrower shall have
assumed) its interest in the Air Rights Leases (as defined in
the Mortgage), in each case subject to the First Boston Loan
(collectively, the "Conveyance") and (ii) assumed the borrower's
obligations under the First Boston Loan and First Boston Loan
Documents (the "Assumption");
(c) the Borrower shall have caused Norwest to terminate the
First Boston Loan Documents other than the First Boston Retained
Loan Documents, shall have caused Norwest to assign the First
Boston Retained Loan Documents to the Administrative Agent for
the benefit of the Banks and shall have caused Norwest to
deliver to the Administrative Agent originals of the First
Boston Retained Loan Documents and the assignments thereof;
(d) the Banks shall have funded in connection with the making of
the Mortgage Loan to pur-
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chase the First Boston Loan, the amounts equal to the principal
amounts of their respective Split Notes, aggregating
$60,000,000.00;
(e) the Borrower shall have paid to Norwest, from cash on hand
at the Borrower or the Company, an amount sufficient to satisfy
all principal, interest and other monetary obligations owing to
Norwest under the First Boston Loan in excess of $60,000,000.00;
(f) the Borrower shall have delivered to the Administrative
Agent a duly executed original of each of the Mortgage Loan
Agreement, the Restated Mortgage Note, the Mortgage and the
Assignment of Leases and Rents, together with duly executed
originals of any applicable Section 255 Affidavits or other
applicable affidavit, and UCC-1 Financing Statements;
(g) the Borrower shall have delivered to the Administrative
Agent duly executed originals of each of the Split Notes;
(h) the Borrower shall have caused Commonwealth Land Title
Insurance Company to issue the Mortgage Loan Title Policy and
shall have paid the premium therefor;
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(i) the Required Banks shall have executed and delivered to the
Administrative Agent a duly executed original of this Amendment;
(j) each of the Banks shall have executed and delivered to the
Administrative Agent a duly executed original of the Mortgage
Loan Agreement;
(k) the Company shall have executed and delivered to the
Administrative Agent a duly executed original of the
Confirmation of Guaranty and of the Mortgage Loan Guaranty;
(l) the Borrower shall have delivered to the Administrative
Agent copies of the Air Rights Leases (including the original
leases and all amendments and modifications to date), certified
as true and correct;
(m) the Borrower shall have delivered to the Administrative
Agent the survey of the real property which is the subject of
the Mortgage, a copy of which has previously been delivered to
the Administrative Agent, reflecting the certification of the
registered surveyor which prepared such survey operating to the
benefit of the Administrative Agent, Commonwealth Land
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Title Insurance Company and their successors and assigns;
(n) the Administrative Agent shall have received opinions of
Battle Xxxxxx, counsel for the Borrower, acceptable to the
Administrative Agent and its counsel with respect to this
Amendment and the Mortgage Loan;
(o) the Administrative Agent shall have received all documents
the Administrative Agent may reasonably request relating to the
existence of the Borrower and 000 0xx Xxxxxx, the authority for
and the validity of the Conveyance, the Assumption, this
Amendment, the Mortgage Loan Agreement, the Restated Note, the
Split Notes, the Mortgage, the Assignment of Leases and Rents
and the other documents and instruments executed in connection
therewith, and any other matters relevant hereto or to the
Mortgage Loan, all in form and substance reasonably satisfactory
to the Administrative Agent. Such documentation shall include,
without limitation, the limited partnership agreement,
certificate of incorporation, by-laws and resolutions (or other
orga-
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nizational documents) of the Borrower, 000 0xx Xxxxxx and
the Company, as amended, modified or supplemented prior to the
Effective Date, each certified to be true, correct and complete
by an officer of the Company, as of a date not more than ten
(10) days prior to the Effective Date, together with a good
standing certificate from the Secretary of State (or the
equivalent thereof) of the State of Delaware with respect to the
Borrower, 000 0xx Xxxxxx and the Company, each to be dated not
more than ten (10) days prior to the Effective Date;
(p) the Administrative Agent shall have received all
certificates, agreements and other documents and papers referred
to in this Amendment, unless otherwise specified, in sufficient
counterparts, satisfactory in form and substance to the
Administrative Agent in its reasonable discretion;
(q) the Administrative Agent shall have received UCC Searches,
ordered by the Borrower, with respect to the Borrower, 000 0xx
Xxxxxx and the Company;
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(r) the Borrower, 000 0xx Xxxxxx and the Company shall have
taken all actions required to authorize (i) the Conveyance and
the Assumption, and (ii) the execution and delivery of this
Amendment, the Mortgage Loan Agreement, the Restated Note, the
Split Notes, the Mortgage, the Assignment of Leases and Rents,
the Mortgage Loan Guaranty, the Confirmation of Guaranty and the
other documents executed in connection herewith and the
performance thereof by the Borrower and the Company;
(s) the Administrative Agent shall have received, for its and
all other Banks' account, a fee equal to 0.25% of the
Commitments (as reduced pursuant to this Amendment), and its
reasonable fees and expenses accrued through the Effective Date,
including, without limitation, those of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP;
(t) the representations and warranties of the Borrower contained
in the Credit Agreement shall be true and correct in all
material respects on and as of the Effective Date, both
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before and after giving effect to the Loans to be funded as of
the Effective Date; and
(u) receipt by the Administrative Agent and the Banks of a
certificate of an officer of the Borrower certifying that the
Borrower is in compliance with all covenants of the Borrower
contained in the Credit Agreement, including, without
limitation, the requirements of Section 5.9, as of the
Effective Date, both before and after giving effect to the Loans
to be funded as of the Effective Date.
13. Estoppel Certificates. Borrower shall use best efforts to
deliver to the Administrative Agent, on or before the date which is thirty (30)
days after the date hereof, estoppel certificates, in the form previously agreed
to by them, duly executed by each of the lessors under the Air Rights Leases. In
the event Borrower fails to deliver such estoppel certificates within such time
period, Borrower shall, on the day immediately following the end of such 30-day
period (and if such day is not a Business Day, then on the next succeeding
Business Day), pay to the Administrative Agent, ratably for the account of the
Banks, a diligence fee equal to $165,000. Additionally, Borrower shall use
commercially
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reasonable efforts to deliver to the Administrative Agent, on or before the date
which is thirty (30) days after the date hereof, estoppel certificates, in the
form previously agreed to by them, duly executed by each of Borrower's
subtenants for the premises demised under the Air Rights Leases. Borrower shall
not be obligated to pay a diligence fee in the event it fails to deliver such
subtenant estoppel certificates within such time period. Any provision of the
Credit Agreement, as amended hereby, to the contrary notwithstanding, failure of
Borrower to deliver the estoppel certificates (whether from lessors or
subtenants) pursuant to this Section 13 shall not give rise to an Event of
Default; provided, Borrower has made the effort, to the standards set forth in
this Section 13, otherwise required hereby to deliver such estoppel
certificates.
14. Entire Agreement. This Amendment constitutes the entire and
final agreement among the parties hereto with respect to the subject matter
hereof and there are no other agreements, understandings, undertakings,
representations or warranties among the parties hereto with respect to the
subject matter hereof except as set forth herein.
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15. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
16. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agreement, and any of the parties hereto may execute this Amendment by signing
any such counterpart.
17. Headings, Etc. Section or other headings contained in this
Amendment are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Amendment.
18. No Further Modifications. Except as modified herein, all of the
terms and conditions of the Credit Agreement, as modified hereby shall remain in
full force and effect and, as modified hereby, the Borrower confirms and
ratifies all of the terms, covenants and conditions of the Credit Agreement in
all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER: TOWER REALTY OPERATING PARTNER-
SHIP, L.P.
By: Tower Realty Trust, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President
Finance & Administration
and Chief Financial
Officer
BANKS:
Commitment
$20,625,000 BANK ONE ARIZONA, N.A., as a Bank
By:/s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Commitment
$20,625,000 FLEET NATIONAL BANK, as a Bank and
as Administrative Agent
By:/s/ Xxxxx X. XxXxxxxxxx
-----------------------
Name: Xxxxx X. XxXxxxxxxx
Title: Vice President
Commitment
$20,625,000 KEYBANK, NATIONAL ASSOCIATION, as
a Bank
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: AVP
Commitment
$20,625,000 NATIONSBANK, N.A., as a Bank and
as Documentation Agent
By:/s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Vice President
Commitment
$20,625,000 SOCIETE GENERALE, as a Bank
By:/s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
Title: Vice President
Commitment
$16,500,000 FIRST AMERICAN BANK TEXAS,
S.S.B.,as a Bank
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Commitment
$45,375,000 XXXXXXX XXXXX CAPITAL CORPORATION,
as Bank
By:/s/ Xxxxx Dysenchuly
--------------------
Name: Xxxxx Dysenchuly
Title: Vice President
XXXXXXX XXXXX & CO., as
Syndication Agent and Arranger
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX, INCORPORATED
By:/s/ Xxxxx Dysenchuly
--------------------
Name: Xxxxx Dysenchuly
Title: Vice President
EXHIBIT B
UNENCUMBERED ASSETS
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxx Xxxx
Century Plaza, 3225 North Central Avenue, Phoenix,
Arizona
0000 Xxxx Xxxxxxxx, Xxxxxx, Xxxxxxx
0000 Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx
Maitland Forum, Orlando, Florida
0000 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
0000 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
0000 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
Blue Cross Blue Shield Building, Phoenix, Arizona
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
