Note to Borrower. For multiple borrowings, conversions and/or continuations for a particular facility, fill out a new row for each borrowing/conversion and/or continuation. Insert an additional chart for each Incremental Term Loan Facility added pursuant to Section 2.16 of the Agreement. 3 Or such other period that is twelve months or less requested by the Borrower and consented to by all the Revolving Lenders. Indicate: Borrowing or Conversion or Continuation Indicate: Requested Amount Indicate: Base Rate Loan or Eurodollar Rate Loan or LIBOR Floating Rate Loan For Eurodollar Rate Loans Indicate: Interest Period (e.g. 1, 3 or 6 month interest period4) The Loans, if any, borrowed hereunder shall be disbursed to the following bank for credit by that bank to the following deposit account: [The Borrowing, if any, requested herein complies with the proviso to the first sentence of Section 2.01[(a)/(b)] of the Agreement. The Borrower hereby represents and warrants that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the proposed Credit Extension.]5 EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] 4 Or such other period that is twelve months or less requested by the Borrower and consented to by all the Term Lenders. 5 Only applicable to a Borrowing To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. The Revolving Lenders are invited to make Competitive Loans: 1. On (a Business Day). 2. In an aggregate amount not exceeding $ (with any sublimits set forth below)1. 3. Comprised of (select one):2 ☐ Competitive Loans based on an Absolute Rate ☐ Competitive Loans based on Eurodollar Rate 1 days/mos $ 2 days/mos $ 3 days/mos $ 4. The Competitive Borrowing requested herein complies with the requirements of the proviso to the first sentence of Section 2.03(a) of the Agreement. 1 Shall not be less than $5,000,000 or a whole multiple of $1,000,000 in excess thereof. 2 Shall not be a request for more than three (3) different Interest Periods, shall be subject to the definition of “Interest Period” and shall not end later than the Maturity Date. The Borrower hereby authorizes the Administrative Agent to deliver this Competitive Bid Request to the Revolving Lenders. Responses by the Revolving Lenders must be in substantially the form of Exhibit B-2 to the Agreement and must be received by the Administrative Agent by the time specified in Section 2.03 of the Agreement for submitting Competitive Bids. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] , To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. In response to the Competitive Bid Request dated , , the undersigned offers to make the following Competitive Loan(s): 1. Borrowing date: (a Business Day). 2. In an aggregate amount not exceeding $ (with any sublimits set forth below). 3. Comprised of: 1 days/mos $ (- +) % 2 days/mos $ (- +) % 3 days/mos $ (- +) % * Expressed in multiples of 1/100th of a basis point. Contact Person: Telephone: By: Name: [Type Signatory Name] Title: [Type Signatory Title] ****************************************************************************** The offers made above are hereby accepted in the amounts set forth below: $ $ $ EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] Date: FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Revolving Credit Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers from time to time party thereto. The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Revolving Note is one of the Revolving Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Revolving Note is also entitled to the benefits of the Guaranty Agreement. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Revolving Credit Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving Credit Loans and payments with respect thereto. To the extent any provision of this Revolving Note conflicts with or is inconsistent with the Agreement, the Agreement shall control. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Note. THIS REVOLVING NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE LENDER HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Term Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. The Borrower promises to pay interest on the unpaid principal amount of each Term Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Term Note is one of the Term Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Term Note is also entitled to the benefits of the Guaranty Agreement. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Term Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Term Note and endorse thereon the date, amount and maturity of its Term Loans and payments with respect thereto. To the extent any provision of this Term Note conflicts with or is inconsistent with the Agreement, the Agreement shall control. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Term Note. THIS TERM NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE LENDER HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] ☐ Check for distribution to PUBLIC and Private side Lenders1 Financial Statement Date: , To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation (the “Parent”), Empire State Realty OP, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers from time to time party thereto. The undersigned Responsible Officer of the Parent hereby certifies as of the date hereof that he/she is the of the Parent, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on behalf of the Parent, and that: 1. The Parent and the Borrower have delivered the year-end audited financial statements required by Section 6.01(a) of the Agreement (or the Parent’s Annual Report on Form 10-K (satisfying the SEC’s requirements for 10-K filings) in lieu thereof as permitted under Section 6.01(a) of the Agreement) for the fiscal year of the Parent ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section. 1. The Parent and the Borrower have delivered the unaudited financial statements required by Section 6.01(b) of the Agreement (or the Parent’s Quarterly Report on Form 10-Q (satisfying the SEC’s requirements for 10-Q filings) in lieu thereof as permitted under Section 6.01(b) of the Agreement) for the fiscal quarter of the Parent ended as of the above date. Such financial statements fairly present the financial condition, results of operations, shareholders’ equity and cash flows of the Consolidated Group in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes. 1 If this is not checked, this certificate will only be posted to Private side Lenders. 2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Loan Parties during the accounting period covered by such financial statements. 3. A review of the activities of the Loan Parties during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Loan Parties performed and observed all their Obligations under the Loan Documents, and 4. The financial covenant analyses and information set forth on Schedule 1 attached hereto are true and accurate on and as of the date of this Certificate. 5. Attached hereto as Schedule 2 is a true and accurate calculation of the Net Operating Income and Unencumbered NOI attributable to each Unencumbered Eligible Property as of the Financial Statement Date.
Appears in 1 contract
Note to Borrower. If one or more term loan tranches have been established, insert a separate chart for each such facility. For multiple borrowings, conversions and/or or continuations for a particular facility, fill out a new row for each borrowing/conversion and/or continuation. Insert an additional chart for each Incremental or continuation 3 In the case of Alternative Currency Term Loan Facility added pursuant to Section 2.16 of the Agreement. 3 Or such other period that is twelve months or less requested by the Borrower and consented to by all the Revolving Lenders. Indicate: Borrowing or Conversion or Continuation Indicate: Requested Amount Indicate: Base Rate Loan or Eurodollar Rate Loan or LIBOR Floating Rate Loan For Eurodollar Rate Loans Indicate: Interest Period (e.g. 1denominated in Canadian Dollars, only 1 or 3 or 6 month interest period4) The Loans, if any, borrowed hereunder shall be disbursed to the following bank for credit by that bank to the following deposit account: [The Borrowing, if any, requested herein complies with the proviso to the first sentence of Section 2.01[(a)/(b)] of the Agreement. The Borrower hereby represents and warrants that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the proposed Credit Extension.]5 EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership period ERP OPERATING LIMITED PARTNERSHIP By: Empire State Realty Trust, Inc.Equity Residential, its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] 4 Or such other period that is twelve months or less requested by the Borrower and consented to by all the Term Lenders. 5 Only applicable to a Borrowing To: Bank of America, N.A., as Administrative Agent Ladies Re: Competitive Bid Quote to ERP Operating Limited Partnership (the “Borrower”) In response to your invitation on behalf of the Borrower dated [________ , 20__], we hereby make the following Competitive Bid Quote on the following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank: _____________________________
3. Date of Borrowing: *
4. We hereby offer to make Competitive Bid Loan(s) in the following principal amounts, for the following Interest Periods and Gentlemenat the following rates: Reference is made Principal Amount** Interest Period*** Competitive Bid [Margin****] and applicable base rate [Absolute Rate*****] $ $ [Provided, that the aggregate principal amount of Competitive Bid Loans for which the above offers may be accepted shall not exceed $ .]** We understand and agree that the offer(s) set forth above, subject to that certain Amended and Restated the satisfaction of the applicable conditions set forth in the Revolving Credit Agreement, Agreement dated as of August 29October 26, 2017 2022, among ERP Operating Limited Partnership, the banks party thereto, and yourselves, as Administrative Agent (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. The Revolving Lenders are invited irrevocably obligates us to make the Competitive Loans:
1Bid Loan(s) for which any offer(s) are accepted, in whole or in part. On (a Business Day).
2. In an aggregate amount not exceeding $ (with any sublimits set forth below)1.
3. Comprised of (select one):2 ☐ Competitive Loans based on an Absolute Rate ☐ Competitive Loans based on Eurodollar Rate 1 days/mos $ 2 days/mos $ 3 days/mos $
4. The Competitive Borrowing requested Terms used herein complies with have the requirements of the proviso meanings assigned to the first sentence of Section 2.03(a) of them in the Agreement. 1 Shall Very truly yours, [NAME OF BANK] Dated:_______________ By: Authorized Officer * As specified in the related Invitation. ** Principal amount bid for each Interest Period may not exceed principal amount requested. Specify aggregate limitation if the sum of the individual offers exceeds the amount the Bank is willing to lend. Bids must be made for $3,000,000 or a larger multiple of $100,000. *** 1, 3 or 6 months in the case of a Term SOFR Auction and not be less than $5,000,000 7 days in the case of an Absolute Rate Auction or a whole multiple of $1,000,000 Daily Simple SOFR Auction, in excess thereofeach case, as specified in the related Invitation. 2 Shall not be a request for No more than three (3) different Interest Periods, shall be subject to the definition of “five bids are permitted for each Interest Period” and shall not end later than the Maturity Date. The Borrower hereby authorizes the Administrative Agent to deliver this Competitive Bid Request to the Revolving Lenders. Responses by the Revolving Lenders must be in substantially the form of Exhibit B-2 to the Agreement and must be received by the Administrative Agent by the time specified in Section 2.03 of the Agreement for submitting Competitive Bids. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] , To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. In response to the Competitive Bid Request dated , , the undersigned offers to make the following Competitive Loan(s):
1. Borrowing date: (a Business Day).
2. In an aggregate amount not exceeding $ (with any sublimits set forth below).
3. Comprised of: 1 days/mos $ (- +) % 2 days/mos $ (- +) % 3 days/mos $ (- +) % * Expressed in multiples of 1/100th of a basis point. Contact Person: Telephone: By: Name: [Type Signatory Name] Title: [Type Signatory Title] ************************************************************************** Margin over or under Term SOFR determined for the applicable Interest Period or Daily Simple SOFR, as applicable. Specify percentage (to the nearest 1/10,000 of 1%) and specify whether “PLUS” or “MINUS”. ***** The offers made above are hereby accepted in Specify rate of interest per annum (to the amounts set forth below: $ $ $ EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] Date: FOR VALUE RECEIVED, the undersigned nearest 1/10,000th of 1%). TRANSFER SUPPLEMENT (the this “BorrowerTransfer Supplement”), hereby promises to pay to or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Revolving Credit Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit Agreement, dated as of August 29[________ , 2017 (as amended20__], restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers from time to time party thereto. The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Revolving Note is one of the Revolving Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Revolving Note is also entitled to the benefits of the Guaranty Agreement. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Revolving Credit Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving Credit Loans and payments with respect thereto. To the extent any provision of this Revolving Note conflicts with or is inconsistent with the Agreement, the Agreement shall control. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Note. THIS REVOLVING NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE LENDER HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] FOR VALUE RECEIVED, the undersigned between (the “BorrowerAssignor”), hereby promises to pay to or registered assigns ) and having an address at ____________ (the “LenderPurchasing Bank”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Term Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. The Borrower promises to pay interest on the unpaid principal amount of each Term Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Term Note is one of the Term Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Term Note is also entitled to the benefits of the Guaranty Agreement. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Term Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Term Note and endorse thereon the date, amount and maturity of its Term Loans and payments with respect thereto. To the extent any provision of this Term Note conflicts with or is inconsistent with the Agreement, the Agreement shall control. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Term Note. THIS TERM NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE LENDER HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] ☐ Check for distribution to PUBLIC and Private side Lenders1 Financial Statement Date: , To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation (the “Parent”), Empire State Realty OP, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers from time to time party thereto. The undersigned Responsible Officer of the Parent hereby certifies as of the date hereof that he/she is the of the Parent, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on behalf of the Parent, and that:
1. The Parent and the Borrower have delivered the year-end audited financial statements required by Section 6.01(a) of the Agreement (or the Parent’s Annual Report on Form 10-K (satisfying the SEC’s requirements for 10-K filings) in lieu thereof as permitted under Section 6.01(a) of the Agreement) for the fiscal year of the Parent ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.
1. The Parent and the Borrower have delivered the unaudited financial statements required by Section 6.01(b) of the Agreement (or the Parent’s Quarterly Report on Form 10-Q (satisfying the SEC’s requirements for 10-Q filings) in lieu thereof as permitted under Section 6.01(b) of the Agreement) for the fiscal quarter of the Parent ended as of the above date. Such financial statements fairly present the financial condition, results of operations, shareholders’ equity and cash flows of the Consolidated Group in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes. 1 If this is not checked, this certificate will only be posted to Private side Lenders.
2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Loan Parties during the accounting period covered by such financial statements.
3. A review of the activities of the Loan Parties during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Loan Parties performed and observed all their Obligations under the Loan Documents, and
4. The financial covenant analyses and information set forth on Schedule 1 attached hereto are true and accurate on and as of the date of this Certificate.
5. Attached hereto as Schedule 2 is a true and accurate calculation of the Net Operating Income and Unencumbered NOI attributable to each Unencumbered Eligible Property as of the Financial Statement Date.
Appears in 1 contract
Sources: Revolving Credit Agreement (Erp Operating LTD Partnership)
Note to Borrower. For multiple borrowingsIf one or more term loan tranches have been established, conversions and/or continuations insert a separate chart for a particular each such facility, fill out . Complete a new row for each borrowing/conversion and/or continuation. Insert an additional chart for each Incremental Term Loan Facility added pursuant to Section 2.16 of the AgreementCommitted Borrowing being prepaid. 3 Or such other period that is twelve months or less requested by In the Borrower and consented to by all the Revolving Lenders. Indicate: Borrowing or Conversion or Continuation Indicate: Requested Amount Indicate: Base Rate Loan or Eurodollar Rate Loan or LIBOR Floating Rate Loan For Eurodollar case of Alternative Currency Term Rate Loans Indicate: Interest Period (e.g. 1denominated in Canadian Dollars, only 1 or 3 or 6 month interest period4) The Loans, if any, borrowed hereunder shall be disbursed to the following bank for credit by that bank to the following deposit account: [The Borrowing, if any, requested herein complies with the proviso to the first sentence of Section 2.01[(a)/(b)] of the Agreement. The Borrower hereby represents and warrants that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the proposed Credit Extension.]5 EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership period ERP OPERATING LIMITED PARTNERSHIP By: Empire State Realty Trust, Inc.Equity Residential, its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] 4 Or such other period that is twelve months or less requested by For the Borrower and consented to by all the Term Lenders. 5 Only applicable to a Borrowing To: calendar year ended ___________________1 Bank of America, N.A., as Administrative Agent for the Banks party to the Credit Agreement referred to below Ladies and Gentlemen: Reference is hereby made to that certain Amended and Restated Revolving Credit Agreement, Agreement dated as of August 29October 26, 2017 2022 (as the same may be amended, restatedsupplemented, extended, supplemented restated or otherwise modified in writing from time to time, the “Credit Agreement;” ”, the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership ERP Operating Limited Partnership (the “Borrower”), the Lenders from time to time banks party thereto, and Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. The Revolving Lenders are invited to make Competitive Loans:
1. On (a Business Day).
2. In an aggregate amount not exceeding $ (with any sublimits set forth below)1.
3. Comprised of (select one):2 ☐ Competitive Loans based on an Absolute Rate ☐ Competitive Loans based on Eurodollar Rate 1 days/mos $ 2 days/mos $ 3 days/mos $
4. The Competitive Borrowing requested herein complies with the requirements of the proviso to the first sentence of Section 2.03(a) of the Agreement. 1 Shall not be less than $5,000,000 or a whole multiple of $1,000,000 in excess thereof. 2 Shall not be a request for more than three (3) different Interest Periods, shall be subject to the definition of “Interest Period” and shall not end later than the Maturity Date. The Borrower hereby authorizes the Administrative Agent to deliver this Competitive Bid Request to the Revolving Lenders. Responses by the Revolving Lenders must be in substantially the form of Exhibit B-2 to the Agreement and must be received by the Administrative Agent by the time specified in Section 2.03 of the Agreement for submitting Competitive Bids. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] , To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. In response to the Competitive Bid Request dated , , the undersigned offers to make the following Competitive Loan(s):
1. Borrowing date: (a Business Day).
2. In an aggregate amount not exceeding $ (with any sublimits set forth below).
3. Comprised of: 1 days/mos $ (- +) % 2 days/mos $ (- +) % 3 days/mos $ (- +) % * Expressed in multiples of 1/100th of a basis point. Contact Person: Telephone: By: Name: [Type Signatory Name] Title: [Type Signatory Title] ****************************************************************************** The offers made above are hereby accepted in the amounts set forth below: $ $ $ EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] Date: FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Revolving Credit Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers from time to time party thereto. The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Revolving Note is one of the Revolving Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Revolving Note is also entitled to the benefits of the Guaranty Agreement. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Revolving Credit Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving Credit Loans and payments with respect thereto. To the extent any provision of this Revolving Note conflicts with or is inconsistent with the Agreement, the Agreement shall control. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Note. THIS REVOLVING NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE LENDER HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Term Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. The Borrower promises to pay interest on the unpaid principal amount of each Term Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Term Note is one of the Term Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Term Note is also entitled to the benefits of the Guaranty Agreement. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Term Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Term Note and endorse thereon the date, amount and maturity of its Term Loans and payments with respect thereto. To the extent any provision of this Term Note conflicts with or is inconsistent with the Agreement, the Agreement shall control. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Term Note. THIS TERM NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE LENDER HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] ☐ Check for distribution to PUBLIC and Private side Lenders1 Financial Statement Date: , To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation (the “Parent”), Empire State Realty OP, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers from time to time party thereto. The undersigned Responsible Officer of the Parent Borrower hereby certifies as of the date hereof that he/she is the of the ParentBorrower, and that, as such, he/she is authorized to execute and deliver this Sustainability Certificate to the Administrative Agent on behalf of the ParentBorrower, and that:
1. The Parent attached is a true and correct copy of the cover page and the Borrower have delivered summary page(s) setting forth the year-end audited financial statements required by Section 6.01(a) of Sustainability Rating from the Agreement (or the Parent’s Annual GRESB Benchmark Report on Form 10-K (satisfying the SEC’s requirements for 10-K filings) in lieu thereof as permitted under Section 6.01(a) of the Agreement) for the fiscal year of the Parent most recently ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.
1. The Parent and the Borrower have delivered the unaudited financial statements required by Section 6.01(b) of the Agreement (or the Parent’s Quarterly Report on Form 10-Q (satisfying the SEC’s requirements for 10-Q filings) in lieu thereof as permitted under Section 6.01(b) of the Agreement) for the fiscal quarter of the Parent ended as of the above date. Such financial statements fairly present the financial condition, results of operations, shareholders’ equity and cash flows of the Consolidated Group in accordance with GAAP as at such date and for such period, subject only to normal calendar year-end audit adjustments and the absence of footnotes. 1 If this is not checked, this certificate will only be posted to Private side Lenders.
2. The undersigned has reviewed and the Borrower’s Sustainability Rating is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Loan Parties during the accounting period covered by such financial statements____________________.
3. A review of the activities of Sustainability Rating Change for the Loan Parties during such fiscal period has been made under most recently ended calendar year is __________________, calculated as follows:
A. Current Sustainability Rating:
B. Sustainability Rating for the supervision of the undersigned with a view to determining whether during such fiscal period the Loan Parties performed and observed all their Obligations under the Loan Documents, andimmediately preceding calendar year:
C. Change in Sustainability Ratings (Line A—Line B):
D. Sustainability Rating Change (Line C ÷ Line B): %
4. The financial covenant analyses the Borrower has satisfied the requirements for a Sustainability Adjustment and information set forth on Schedule qualifies for a Sustainability Metrics Adjustment Amount of negative 0.01%, because the Sustainability Rating for the most recently ended calendar year either (i) reflects an improvement of at least two percent (2.0%), but less than four percent (4.0%), over the Sustainability Rating for the immediately preceding calendar year or (ii) is at least 90]. 1 attached hereto are true the fiscal year most recently ended. [4. the Borrower has satisfied the requirements for a Sustainability Adjustment and accurate on and as qualifies for a Sustainability Metrics Adjustment Amount of negative 0.02%, because the date Sustainability Rating for the most recently ended calendar year either (i) reflects an improvement of this Certificateat least four percent (4.0%) over the Sustainability Rating for the immediately preceding calendar year or (ii) is at least 92].
5. Attached hereto as Schedule 2 is a true and accurate calculation of the Net Operating Income and Unencumbered NOI attributable to each Unencumbered Eligible Property as of the Financial Statement Date.]
Appears in 1 contract
Sources: Revolving Credit Agreement (Erp Operating LTD Partnership)
Note to Borrower. If one or more term loan tranches have been established, insert a separate chart for each such facility. For multiple borrowings, conversions and/or continuations borrowings for a particular facility, fill out a new row for each borrowing/conversion and/or continuation. Insert an additional chart for each Incremental Term Loan Facility added pursuant to Section 2.16 of the Agreement. 3 Or such other period that is twelve months or less requested by In the Borrower and consented to by all the Revolving Lenders. Indicate: Borrowing or Conversion or Continuation Indicate: Requested Amount Indicate: Base Rate Loan or Eurodollar Rate Loan or LIBOR Floating Rate Loan For Eurodollar case of Alternative Currency Term Rate Loans Indicate: Interest Period (e.g. 1denominated in Canadian Dollars, only 1 or 3 or 6 month interest period4) The Loans, if any, borrowed hereunder shall period Proceeds of such Loans are to be disbursed to the following bank for credit by that bank to the following deposit accountdistributed as follows: [The Borrowing, if any, requested herein complies with the proviso to the first sentence of Section 2.01[(a)/(b)] of the Agreement_________________. The Borrower hereby represents and warrants certifies that the conditions specified precedent contained in Sections 4.02(a) and (b) have been Section 3.2 of the Credit Agreement are satisfied on the date hereof and as of will be satisfied on the date of the proposed Credit Extension.]5 EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership Borrowing. ERP OPERATING LIMITED PARTNERSHIP By: Empire State Realty Trust, Inc.Equity Residential, its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] 4 Or such other period that is twelve months or less requested by the Borrower and consented to by all the Term Lenders. 5 Only applicable to a Borrowing To: Bank of America, N.A., as Administrative Agent for the Banks party to the Credit Agreement referred to below Ladies and Gentlemen: Reference is hereby made to that certain Amended and Restated Revolving Credit Agreement, Agreement dated as of August 29October 26, 2017 2022 (as the same may be amended, restatedsupplemented, extended, supplemented restated or otherwise modified in writing from time to time, the “Credit Agreement;” ”, the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership ERP Operating Limited Partnership (the “Borrower”), the Lenders from time to time banks party thereto, and Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. The Revolving Lenders are invited to make Competitive Loans:
1. On (a Business Day).
2. In an aggregate amount not exceeding $ (with any sublimits set forth below)1.
3. Comprised of (select one):2 ☐ Competitive Loans based on an Absolute Rate ☐ Competitive Loans based on Eurodollar Rate 1 days/mos $ 2 days/mos $ 3 days/mos $
4. The Competitive Borrowing requested herein complies with the requirements of the proviso to the first sentence of Section 2.03(a) of the Agreement. 1 Shall not be less than $5,000,000 or a whole multiple of $1,000,000 in excess thereof. 2 Shall not be a request for more than three (3) different Interest Periods, shall be subject to the definition of “Interest Period” and shall not end later than the Maturity Date. The Borrower hereby authorizes the Administrative Agent to deliver this Competitive Bid Request to the Revolving Lenders. Responses by the Revolving Lenders must be in substantially the form of Exhibit B-2 to the Agreement and must be received by the Administrative Agent by the time specified in Section 2.03 of the Agreement for submitting Competitive Bids. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: requests on [Type Signatory NameINSERT REQUESTED DATE] Title: [Type Signatory Title] , To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. In response to the Competitive Bid Request dated , , the undersigned offers to make the following Competitive Loan(s):
1. Borrowing date: (a Business Day).
2. In an aggregate amount not exceeding $ (with any sublimits set forth below).
3. Comprised ofDay):2 Indicate: 1 days/mos $ (- +) % 2 days/mos $ (- +) % 3 days/mos $ (- +) % * Expressed in multiples Conversion or Continuation Indicate: Borrower or Qualified Borrower Name Indicate: Requested Amount Indicate: Currency Indicate Group of 1/100th Loans: Base Rate Loans, Daily SOFR Loans, Term SOFR Loans, Alternative Currency Daily Rate Loans or Alternative Currency Term Rate Loans For Continuation of a basis point. Contact Person: Telephone: By: Name: [Type Signatory Name] Title: [Type Signatory Title] ****************************************************************************** The offers made above are hereby accepted in the amounts set forth below: $ $ $ EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] Date: FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises or Conversion to pay to or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Revolving Credit Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers from time to time party thereto. The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Revolving Note is one of the Revolving Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Revolving Note is also entitled to the benefits of the Guaranty Agreement. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Revolving Credit Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving Credit Term SOFR Loans and payments with respect thereto. To the extent any provision Continuation of this Revolving Note conflicts with Alternative Currency Term Rate Loans Indicate: Interest Period (e.g., 1, 3 or is inconsistent with the Agreement, the Agreement shall control. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Note. THIS REVOLVING NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE LENDER HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Term Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation, Empire State Realty OP, L.P., a Delaware limited partnership, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers and Swing Line Lenders from time to time party thereto. The Borrower promises to pay 6 month interest on the unpaid principal amount of each Term Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Term Note is one of the Term Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Term Note is also entitled to the benefits of the Guaranty Agreement. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Term Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Term Note and endorse thereon the date, amount and maturity of its Term Loans and payments with respect thereto. To the extent any provision of this Term Note conflicts with or is inconsistent with the Agreement, the Agreement shall control. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Term Note. THIS TERM NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE LENDER HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION. EMPIRE STATE REALTY OP, L.P., a Delaware limited partnership By: Empire State Realty Trust, Inc., its general partner By: Name: [Type Signatory Name] Title: [Type Signatory Title] ☐ Check for distribution to PUBLIC and Private side Lenders1 Financial Statement Date: , To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement, dated as of August 29, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Empire State Realty Trust, Inc., a Maryland corporation (the “Parent”), Empire State Realty OP, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the L/C Issuers from time to time party thereto. The undersigned Responsible Officer of the Parent hereby certifies as of the date hereof that he/she is the of the Parent, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on behalf of the Parent, and that:
1. The Parent and the Borrower have delivered the year-end audited financial statements required by Section 6.01(a) of the Agreement (or the Parent’s Annual Report on Form 10-K (satisfying the SEC’s requirements for 10-K filings) in lieu thereof as permitted under Section 6.01(a) of the Agreement) for the fiscal year of the Parent ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.
1. The Parent and the Borrower have delivered the unaudited financial statements required by Section 6.01(b) of the Agreement (or the Parent’s Quarterly Report on Form 10-Q (satisfying the SEC’s requirements for 10-Q filings) in lieu thereof as permitted under Section 6.01(b) of the Agreement) for the fiscal quarter of the Parent ended as of the above date. Such financial statements fairly present the financial condition, results of operations, shareholders’ equity and cash flows of the Consolidated Group in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes. 1 If this is not checked, this certificate will only be posted to Private side Lenders.
2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Loan Parties during the accounting period covered by such financial statements.
3. A review of the activities of the Loan Parties during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Loan Parties performed and observed all their Obligations under the Loan Documents, and
4. The financial covenant analyses and information set forth on Schedule 1 attached hereto are true and accurate on and as of the date of this Certificate.
5. Attached hereto as Schedule 2 is a true and accurate calculation of the Net Operating Income and Unencumbered NOI attributable to each Unencumbered Eligible Property as of the Financial Statement Date.period)3
Appears in 1 contract
Sources: Revolving Credit Agreement (Erp Operating LTD Partnership)