EXHIBIT 10.49
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SECURED LOAN AGREEMENT
dated as of October ___, 2000
among
METROPOLITAN ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ LLC,
as Borrower,
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE CAPITAL INC.,
as Lender, Arranger and Syndication Agent
BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH,
as Lender and Co-Documentation Agent,
COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES,
as Lender and Co-Documentation Agent
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Lender and Administrative Agent
and
THE OTHER LENDERS SIGNATORY HERETO,
each as a Lender
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SECURED LOAN AGREEMENT dated as of October ___, 2000 among
METROPOLITAN ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ LLC, a limited liability company organized and
existing under the laws of the State of Delaware ("Borrower"), ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE CAPITAL INC. ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
("▇▇▇▇▇ Fargo"), the other lenders signatory hereto and ▇▇▇▇▇ fargo Bank,
NATIONAL ASSOCIATION, as Administrative Agent for Lenders (in such capacity,
together with its successors in such capacity, "Administrative Agent"; ▇▇▇▇▇▇▇
▇▇▇▇▇, the other lenders signatory hereto, and such other lenders who from time
to time become Lenders pursuant to Section 3.07 or 12.05, each a "Lender" and
collectively, "Lenders").
Borrower desires that Lenders extend credit as provided
herein, and Lenders are prepared to extend such credit. Accordingly, Borrower,
Administrative Agent and each Lender agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION OF TERMS
Section 1.01 Definitions. As used in this Agreement the
following terms have the following meanings:
"Account Assignment" means the Pledge and Assignment of
Accounts, dated the date hereof, from Borrower to Administrative Agent whereby
all of Borrower's right, title and interest in and to the Debt Service Reserve
Account and all other reserve, operating or other accounts of any kind
maintained by Borrower in connection with the Property (other than the "Security
Deposit Account", as defined in the LC Assignment) are assigned as security for
the payment and performance of the Obligations.
"Additional Costs" has the meaning specified in Section 3.01.
"Adjusted Net Cash Flow" means, for any period, Net Cash Flow
plus actual interest expense on the Loans for such period.
"Adjusted Pro-Forma Net Operating Income" means, for any
prospective twelve (12)-month period, Pro-Forma Net Operating Income, adjusted
by assuming that all tenants under signed leases as of the beginning of such
period are in occupancy and paying unabated rent (i.e., that initial free rent
and build-out periods have expired).
"Administrative Agent" has the meaning specified in the
preamble.
"Administrative Agent's Office" means Administrative Agent's
office located as set forth on its signature page hereof, or such other address
in the United States as Administrative Agent may designate by notice to Borrower
and Lenders.
"Affected Lender" has the meaning specified in Section 3.07.
"Affected Loan" has the meaning specified in Section 3.04.
"Affiliate" means, with respect to any Person (the "first
Person"), any other Person (1) which directly or indirectly controls, or is
controlled by, or is under common control with the first Person or (2) 10% or
more of the beneficial interest in which is directly or indirectly owned or held
by the first Person. The term "control" means the possession, directly or
indirectly, of the power, alone, to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
"Applicable Lending Office" means, for each Lender and for its
LIBOR Loan or Base Rate Loan, as applicable, the lending office of such Lender
(or of an Affiliate of such Lender) designated as such on its signature page
hereof or in the applicable Assignment and Assumption Agreement, or such other
office of such Lender (or of an Affiliate of such Lender) as such Lender may
from time to time specify to Administrative Agent and Borrower as the office by
which its LIBOR Loan or Base Rate Loan, as applicable, is to be made and
maintained.
"Applicable Margin" means, with respect to LIBOR Loans, the
respective rates per annum determined at any time, based on the ratio (expressed
as a percentage) of the then Principal Amount to Completed Value, in accordance
with the following table (any change in said ratio to effect an immediate change
in the Applicable Margin):
RATIO OF PRINCIPAL AMOUNT TO APPLICABLE MARGIN
COMPLETED VALUE (% PER ANNUM)
--------------- -------------
40% or less 1.10
greater than 40%, up to and including 45% 1.15
greater than 45%, up to and including 50% 1.20
greater than 50%, up to and including 55% 1.25
greater than 55%, up to and including 57.5% 1.30
greater than 57.5%, up to and including 60% 1.35
greater than 60%, up to and including 62.5% 1.40
"Assignee" has the meaning specified in Section 12.05.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement, substantially in the form of EXHIBIT C.
"Assignments" means, collectively, the Account Assignment, the
Cap Assignment, the LC Assignment and the Subordinate Mortgage Assignment.
"Authorization Letter" means a letter agreement executed by
Borrower in the form of EXHIBIT A.
"Base Rate" means, for any day, the higher of (1) the Federal
Funds Rate for such day plus .50% per annum or (2) the Prime Rate for such day.
2
"Base Rate Loan" means all or any portion (as the context
requires) of a Lender's Loan which shall accrue interest at a rate determined in
relation to the Base Rate.
"BNP Lease" means the lease dated December 8, 1998 between 919
Associates, as landlord, and BNP Paribas, as tenant, as amended, covering
approximately 190,000 net rentable square feet of the Improvements, as assigned
to Borrower by assignment dated as of the date hereof.
"Borrower" has the meaning specified in the preamble.
"Borrower LC" means letters of credit, in form and substance
satisfactory to the Required Lenders, issued by The Chase Manhattan Bank or
another nationally recognized bank having a credit rating of no less than AA-
(or the equivalent) from two (2) nationally recognized rating agencies, for the
benefit of (1) the tenant under the ▇▇▇▇▇▇▇ Lease (in the amount of $9,536,535)
and (2) the tenant under the Debevoise Lease (in the amount of up to
$18,755,505). Any such letter of credit that is in the form required by the
applicable lease shall be deemed to be in form and substance satisfactory to the
Required Lenders
"Borrower's Accountants" means Ernst & Young LLP or such other
accounting firm(s) selected by Borrower and reasonably acceptable to
Administrative Agent. Administrative Agent hereby acknowledges that ▇▇▇▇▇▇, ▇▇▇▇
and Company is an accounting firm that is reasonably acceptable.
"Business Day" means (1) any day on which commercial banks are
not authorized or required to close in New York City or Germany or (so long as
▇▇▇▇▇ Fargo is Administrative Agent) in San Francisco, California and (2)
whenever such day relates to a LIBOR Loan, an Interest Period with respect to a
LIBOR Loan, or notice with respect to a LIBOR Loan, a day on which dealings in
Dollar deposits are also carried out in the London interbank market and banks
are open for business in London.
"Cap Assignment" has the meaning specified in paragraph (27)
of Section 4.01.
"Capital Lease" means any lease which has been or should be
capitalized on the books of the lessee in accordance with GAAP.
"Cash Flow Collateral Account" has the meaning specified in
Section 8.02.
"Closing Date" means the date this Agreement has been executed
by all parties.
"Code" means the Internal Revenue Code of 1986.
3
"Completed Value" means $400,000,000, representing the
"completed value" of Borrower's interest in the Property, as set forth in the
appraisal delivered pursuant to paragraph (8) of Section 4.01.
"Continue", "Continuation" and "Continued" refer to the
continuation pursuant to Section 2.11 of a LIBOR Loan as a LIBOR Loan from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" refer to a conversion
pursuant to Section 2.11 of a Base Rate Loan into a LIBOR Loan or a LIBOR Loan
into a Base Rate Loan, each of which may be accompanied by the transfer by a
Lender (at its sole discretion) of all or a portion of its Loan from one
Applicable Lending Office to another.
"Debevoise Lease" means the lease dated August 31, 1998
between 919 Associates, as landlord, and Debevoise & ▇▇▇▇▇▇▇▇, as tenant, as
amended, covering approximately 464,000 net rentable square feet of the
Improvements, as assigned to Borrower by assignment dated as of the date hereof.
"Debt" means (1) indebtedness or liability for borrowed money,
or for the deferred purchase price of property or services, (2) obligations as
lessee under Capital Leases, (3) current liabilities in respect of unfunded
vested benefits under any Plan, (4) obligations under letters of credit issued
for the account of any Person, (5) all obligations arising under bankers' or
trade acceptance facilities, (6) all guarantees, endorsements (other than for
collection or deposit in the ordinary course of business), and other contingent
obligations to purchase any of the items included in this definition, to provide
funds for payment, to supply funds to invest in any Person, or otherwise to
assure a creditor against loss, (7) all obligations secured by any Lien on
property owned by the Person whose Debt is being measured, whether or not the
obligations have been assumed and (8) all obligations under any agreement
providing for contingent participation or other hedging mechanisms with respect
to interest payable on any of the items described above in this definition;
provided, however, that Debt shall not include (A) current trade accounts
payable and accrued expenses (other than for borrowed money or purchase money
obligations) incurred in the ordinary course of business and (B)
indemnification, recourse carve-out and similar contingent obligations in the
ordinary course of business that are not assurances of payment of the items
described in clauses (1) through (8) of this definition.
"Debt Service Allocation" has the meaning specified in Section
2.01.
"Debt Service Deficiency" has the meaning specified in Section
2.15.
"Debt Service Reserve Account" has the meaning specified in
Section 2.15.
"Debt Yield" means, as of any Determination Date, the ratio
(expressed as a percentage), as reasonably determined by Administrative Agent,
of (1) Adjusted Pro-Forma Net Operating Income for the immediately ensuing
twelve (12)-month period to (2) the Principal Amount on such Determination Date.
4
"Default" means any event which with the giving of notice or
lapse of time, or both, would become an Event of Default.
"Default Rate" means a rate per annum equal to (1) with
respect to Base Rate Loans, a variable rate 4% above the rate of interest then
in effect thereon and (2) with respect to LIBOR Loans, a fixed rate 4% above the
rate(s) of interest in effect thereon (including the Applicable Margin) at the
time of the Event of Default until the end of the then current Interest Period
therefor and, thereafter during the continuance of such Event of Default, a
variable rate 4% above the rate of interest for a Base Rate Loan; in no event,
however, shall the Default Rate exceed the maximum rate permitted by Law.
"Delinquency Amount", "Delinquency Notice" and "Delinquent
Lender" have the respective meanings specified in Section 10.18.
"Determination Date" means the last day of any calendar
quarter during the term of the Loans.
"Dollars" and the sign "$" mean lawful money of the United
States.
"DSCR" means, as of any Determination Date, the ratio, as
reasonably determined by Administrative Agent, of (1) Adjusted Pro-Forma Net
Operating Income for the immediately ensuing twelve (12)-month period to (2)
Projected Actual Debt Service for such Determination Date.
"Elect", "Election" and "Elected" refer to election, if any,
by Borrower pursuant to Section 2.11 to have all or a portion of the funding of
the Loans be outstanding as LIBOR Loans.
"Electing Lender", "Election Notice" and "Election Period"
have the respective meanings specified in Section 10.18.
"Engineering Consultant" means AquaTerra Assessment Services
Corp. or other firm designated by Administrative Agent from time to time.
"Environmental Discharge" means any discharge or release of
any Hazardous Materials in violation of any applicable Environmental Law.
"Environmental Indemnity" means that certain Environmental
Indemnity, dated the date hereof, from Borrower and Metropolitan in favor of
Lenders.
"Environmental Law" means any applicable Law relating to
pollution or the environment, including Laws relating to noise or to emissions,
discharges, releases or threatened releases of Hazardous Materials into the work
place, the community or the environment, or otherwise relating to the
generation, manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials.
5
"Environmental Notice" means any written complaint, order,
citation or notice from any Person (1) affecting or relating to Borrower's
compliance with any Environmental Law in connection with any activity or
operations at any time conducted by Borrower, (2) relating to (a) the existence
of any Hazardous Materials contamination or Environmental Discharges or
threatened Hazardous Materials contamination or Environmental Discharges at the
Property or (b) remediation of any Environmental Discharge or Hazardous
Materials at the Property or any part thereof or (3) relating to any violation
or alleged violation by Borrower of any relevant Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, including the rules and regulations promulgated thereunder.
"ERISA Affiliate" means any corporation which is a member of
the same controlled group of corporations (within the meaning of Section 414(b)
of the Code) as Borrower and/or Guarantor, or any trade or business which is
under common control (within the meaning of Section 414(c) of the Code) with
Borrower and/or Guarantor, or any organization which is required to be treated
as a single employer with Borrower and/or Guarantor under Section 414(m) or
414(o) of the Code.
"Event of Default" has the meaning specified in Section 9.01.
"Federal Funds Rate" means, for any day, the rate per annum
(expressed on a 360-day basis of calculation) equal to the weighted average of
the rates on overnight federal funds transactions as published by the Federal
Reserve Bank of New York for such day, provided that (1) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the immediately preceding Business Day as so published on the
next succeeding Business Day and (2) if no such rate is so published for any
day, the Federal Funds Rate for such day shall be the average of the rates
quoted by three (3) independent, unaffiliated Federal Funds brokers to
Administrative Agent on such day on such transactions.
"Financial Officer" means, with regard to Borrower or
Guarantor, its chief financial officer, or any other financial officer holding
at least the rank of vice president of Reckson Associates Realty Corp. or the
successor thereof.
"Financial Statements" means, for any Person, a balance sheet,
a statement of income and retained earnings and a statement of cash flow,
prepared in accordance with GAAP, together with (if applicable) footnotes
thereto (except in that footnotes will not be required for the Financial
Statements of Metropolitan).
"Fiscal Year" means each period from January 1 to December 31.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time, consistently applied.
"Good Faith Contest" means the contest of an item if (1) the
item is diligently contested in good faith, and, if appropriate, by proceedings
timely instituted, (2) adequate reserves are established with respect to the
contested item, (3) during the period of such contest, the enforcement of any
contested item is effectively stayed and (4) the failure to pay or comply with
the contested item during the period of the contest is not likely to (x) result
in a Material Adverse Change or (y) have an adverse effect on the Mortgaged
Property, or on Lenders' interest therein.
6
"Governmental Approvals" means any authorization, consent,
approval, license, permit, certification, or exemption of, registration or
filing with or report or notice to, any Governmental Authority.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Ground Lease" has the meaning given to such term in the
Mortgage. the Ground Lease covers a portion of the Property.
"Guarantor" means, individually and collectively, Metropolitan
and Reckson (Metropolitan being the guarantor under the Guaranty and Indemnity
Agreement and Reckson being the guarantor under the Guaranty of Completion);
provided, however, that at such time, if any, as the Guaranty of Completion
terminates as provided therein, Reckson shall cease to be a Guarantor hereunder.
"Guaranty of Completion" means the Guaranty of Completion in
respect of the Work, dated the date hereof, from Reckson to Lenders.
"Guaranty and Indemnity Agreement" means the Guaranty and
Indemnity Agreement in respect of certain matters pertaining to the Loans, dated
the date hereof, from Metropolitan to Lenders.
"Hazardous Materials" means any pollutant, effluents,
emissions, contaminants, toxic or hazardous wastes or substances, as any of
those terms are defined from time to time in or for the purposes of any relevant
Environmental Law, including asbestos fibers and friable asbestos,
polychlorinated biphenyls, and any petroleum or hydrocarbon-based products or
derivatives, but shall not include materials (1) used or stored at the Property
by tenants of the Property in the ordinary course of business in conformity with
their respective leases or (2) customarily used in the day-to-day operation and
maintenance of the Property, such as cleaning fluids, in each case only to the
extent such materials are stored, used and disposed of in accordance with
applicable Environmental Laws.
"Holdback Release DSCR" means, as of any Determination Date,
the ratio, as reasonably determined by Administrative Agent, of (1) Pro-Forma
Net Operating Income for the immediately ensuing twelve (12)- month period to
(2) Hypothetical Annual Debt Service for such Determination Date.
"Hypothetical Annual Debt Service" means, as of any
Determination Date, the greater of
7
(i) the product of (A) the Principal Amount multiplied by
(B) the sum of the then Applicable Margin plus the greater of
(1) the then LIBOR Interest Rate for an Interest Period of one
(1) month or (2) the capped rate under the interest rate cap
agreement delivered pursuant to paragraph (27) of Section 4.01
or pursuant to Section 2.17, as applicable, and
(ii) an amount equal to the constant annual payment of
principal plus interest required to fully amortize, over a
term of twenty-five (25) years, a hypothetical loan in the
then Principal Amount as of such Determination Date, assuming
such loan were to bear interest at a rate equal to the
interpolated rate on a ten (10)-year United States Treasury
Note assumed to be issued as of such Determination Date plus
the Applicable Margin.
"Improvements" means all improvements now or hereafter located
on the Property, including, without limitation, the 47-story, class A office
building containing approximately 1,445,500 net rentable square feet and two
(2)-story restaurant building currently located thereon.
"Initial Funding " means the first funding of proceeds of the
Loans made hereunder.
"Interest Payment Date" means the fifteenth (15th) day of each
month.
"Interest Period" means, with respect to any LIBOR Loan, the
period commencing on the date the same is funded, converted from a Base Rate
Loan or Continued, as the case may be, and ending, as Borrower may select
pursuant to Section 2.05, on the numerically corresponding day in the first,
second or third calendar month thereafter, provided that each such Interest
Period which commences on the last Business Day of a calendar month (or on any
day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the appropriate
calendar month.
"Law" means any federal, state or local statute, law, rule,
regulation, ordinance, order, code, or rule of common law, now or hereafter in
effect, and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment.
"LC Assignment" means the Assignment of Letters of Credit and
Security Deposit Account, dated the date hereof, from Borrower to Administrative
Agent whereby all of Borrower's right, title and interest in and to the Tenant
LCs and tenant security deposits are assigned as security for the payment and
performance of the Obligations.
"Lender" and "Lenders" have the respective meanings specified
in the preamble.
8
"LIBOR Base Rate" means, with respect to any Interest Period
therefor, the rate per annum (rounded up, if necessary, to the nearest 1/100 of
1%) that appears on Dow ▇▇▇▇▇ Page 3750 at approximately 11:00 a.m. (London
time) on the date (the "LIBOR Determination Date") two (2) Business Days prior
to the first day of the applicable Interest Period, for amounts comparable to
the LIBOR Loan in question and for the same period of time as the relevant
Interest Period therefor; or, if such rate does not appear on Dow ▇▇▇▇▇ Page
3750 as of approximately 11:00 a.m. (London time) on the LIBOR Determination
Date, the rate (rounded up, if necessary, to the nearest 1/100 of 1%) for
deposits in Dollars for a period comparable to the applicable Interest Period
that appears on the Reuters Screen LIBO Page as of approximately 11:00 a.m.
(London time) on the LIBOR Determination Date. If such rate does not appear on
either Dow ▇▇▇▇▇ Page 3750 or on the Reuters Screen LIBO Page as of
approximately 11:00 a.m. (London time) on the LIBOR Determination Date, the
LIBOR Base Rate for the Interest Period will be determined on the basis of the
offered rates for deposits in Dollars for an amount comparable to the LIBOR Loan
in question and for the same period of time as such Interest Period that are
offered by four (4) major banks in the London interbank market at approximately
11:00 a.m. (London time) on the LIBOR Determination Date. Administrative Agent
will request that the principal London office of each of the four (4) major
banks provide a quotation of its Dollar deposit offered rate. If at least two
(2) such quotations are provided, the LIBOR Base Rate will be the arithmetic
mean of the quotations. If fewer than two (2) quotations are provided as
requested, the LIBOR Base Rate will be determined on the basis of the rates
quoted for loans in Dollars to leading European banks for amounts comparable to
such LIBOR Loan for the same period of time as such Interest Period offered by
major banks in New York City at approximately 11:00 a.m. (New York time) on the
LIBOR Determination Date. In the event that Administrative Agent is unable to
obtain any such quotation as provided above, it will be deemed that the LIBOR
Base Rate cannot be determined. For purposes of the foregoing definition, "Dow
▇▇▇▇▇ Page 3750" means the display designated as "Page 3750" on the Dow ▇▇▇▇▇
Markets Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for Dollar deposits); and "Reuters Screen
LIBO Page" means the display designated as page "LIBO" on the Reuters Monitor
Money Rates Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying interbank rates from London in Dollars).
"LIBOR Interest Rate" means, for any LIBOR Loan, a rate per
annum (rounded up, if necessary, to the nearest 1/100 of 1%) determined by
Administrative Agent to be equal to the quotient of (1) the LIBOR Base Rate for
such LIBOR Loan for the Interest Period therefor divided by (2) one minus the
LIBOR Reserve Requirement for such LIBOR Loan for such Interest Period.
"LIBOR Loan" means all or any portion (as the context
requires) of any Lender's Loan which shall accrue interest at rate(s) determined
in relation to LIBOR Interest Rate(s).
"LIBOR Reserve Requirement" means, for any LIBOR Loan, the
rate at which reserves (including any marginal, supplemental or emergency
reserves) are actually required to be maintained during the Interest Period for
such LIBOR Loan under
9
Regulation D by any Lender or any Lender's respective Participants, if any,
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the LIBOR Reserve Requirement
shall also reflect any other reserves required to be maintained by any Lender or
any Lender's respective Participants, if any, by reason of any Regulatory Change
against (1) any category of liabilities which includes deposits by reference to
which the LIBOR Base Rate is to be determined as provided in the definition of
"LIBOR Base Rate" in this Section 1.01 or (2) any category of extensions of
credit or other assets which include loans the interest rate on which is
determined on the basis of rates referred to in said definition of "LIBOR Base
Rate". Lenders and Administrative Agent acknowledge that, as of the date of this
Agreement, the LIBOR Reserve Requirement is zero for all LIBOR Loans.
"Lien" means any mortgage, deed of trust, pledge, security
interest, hypothecation, assignment for collateral purposes, deposit
arrangement, lien (statutory or other), or other security agreement or charge of
any kind or nature whatsoever of any third party (excluding any right of setoff
but including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Law of any jurisdiction to evidence any of
the foregoing).
"Loan" and "Loans" have the respective meanings specified in
Section 2.01.
"Loan Commitment" means, with respect to each Lender, the
obligation to make a Loan in the principal amount set forth below (subject to
change in accordance with the terms of this Agreement):
LOAN
LENDER COMMITMENT
------ ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ $20,000,000
▇▇▇▇▇ Fargo 25,000,000
Bayerische Landesbank, Cayman Islands Branch 30,000,000
Commerzbank AG New York and Grand
Cayman Branches 25,000,000
Norddeutsche Landesbank Girozentrale 31,000,000
DGZ - DekaBank Deutsche Kommunalbank 25,000,000
Landesbank Sachsen Girozentrale 23,000,000
Landesbank Schleswig-Holstein Girozentrale 22,000,000
Westdeutsche ImmobilienBank 22,000,000
Deutsche Postbank AG 18,000,000
Landesbank Saar Girozentrale 9,000,000
----------
TOTAL $250,000,000
10
"Loan Documents" means this Agreement, the Note, the Mortgage
and related Uniform Commercial Code financing statements, the Guaranty of
Completion, the Guaranty and Indemnity Agreement, the Environmental Indemnity,
the Assignments and related uniform Commercial Code financing statements, the
Authorization Letter and the Solvency Certificate and any other documents
evidencing or securing the Loans.
"Major Lease" means the Debevoise Lease, the ▇▇▇▇▇▇▇ Lease,
the BNP Lease and any other lease (or multiple leases to the same tenant)
demising 100,000 or more net rentable square feet (in the aggregate, in the case
of multiple leases to the same tenant) of the Improvements.
"Material Adverse Change" means either (1) a material adverse
change in the status of the business, results of operations, financial
condition, property or prospects of Borrower or Guarantor or (2) any event or
occurrence of whatever nature which is likely to (x) have a material adverse
effect on the ability of Borrower or Guarantor to perform its respective
material obligations under the Loan Documents or (y) create, in the sole and
absolute judgment (reasonably exercised) of the Required Lenders, a material
risk of sale or forfeiture of any of the Mortgaged Property (other than an
immaterial portion thereof) or otherwise materially impair any of the Mortgaged
Property (other than an immaterial portion thereof) or Lenders' rights therein.
"Maturity Date" means October 31, 2003, subject to extension
in accordance with Section 2.16.
"Member" means Metropolitan 919 Manager LLC, a Delaware
limited liability company, the sole managing member of Borrower.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" has the meaning specified in the preamble.
"Metropolitan" means Metropolitan Partners LLC, a Delaware
limited liability company which is the indirect owner of 100% the equity in the
managing member of Borrower. 100% the common equity of Metropolitan is owned by
Reckson.
"Mortgage" means the Fee and Leasehold Mortgage, Assignment of
Leases and Rents and Security Agreement, from Borrower to Administrative Agent,
as agent for Lenders, to secure the payment and performance of Borrower's
obligations hereunder, under the Note and otherwise in respect of the Loans, as
the same shall be increased, modified and consolidated pursuant to Sections 2.01
and 4.02. Initially, the Mortgage shall be in the amount of the Initial Funding
and the amount thereof shall increase as fundings of the Loans are made, as more
particularly provided in Sections 2.01 and 4.02.
"Mortgaged Property" means the Property, the Improvements
thereon and all other property constituting the "Mortgaged Property", as said
quoted term is defined in the Mortgage.
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"Multiemployer Plan" means a Plan defined as such in Section
3(37) of ERISA to which contributions have been made by Borrower, Guarantor or
any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Cash Flow" means, for any period, the amount by which (a)
actual gross receipts from Borrower's interests in the Property for such period,
determined on a cash basis (generated from all the items enumerated in clause
(a) of the definition of "Pro-Forma Net Operating Income" in this Section),
exceeds (b) the sum of (i) all actual operating expenses (including, without
limitation, the items enumerated in clause (b) of said definition of "Pro-Forma
Net Operating Income") plus those capital expenditures enumerated in subclauses
(ii), (iii) and (iv) of said clause (b) of said definition of "Pro Forma Net
Operating Income" with respect to Borrower's interests in the Property for such
period, determined on a cash basis, and (ii) actual interest expense on the
Loans for such period.
"Non-Delinquent Lender" means each Lender other than a
Delinquent Lender.
"Non-Excluded Taxes" has the meaning specified in Section
12.15.
"919 Associates" means ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Associates L.P.,
Borrower's predecessor as owner of the Improvements.
"Note" has meaning specified in Section 2.08.
"Obligations" means each and every obligation, covenant and
agreement of Borrower, now or hereafter existing, contained in this Agreement,
and any of the other Loan Documents, whether for principal, reimbursement
obligations, interest, fees, expenses, indemnities or otherwise, and any
amendments or supplements thereto, extensions or renewals thereof or
replacements therefor, including, but not limited to, all indebtedness,
obligations and liabilities of Borrower to Administrative Agent and any Lender
now existing or hereafter incurred under or arising out of or in connection with
the Note, this Agreement, the other Loan Documents, and any documents or
instruments executed in connection therewith; in each case whether direct or
indirect, joint or several, absolute or contingent, liquidated or unliquidated,
now or hereafter existing, renewed or restructured, including all indebtedness
of Borrower, under any instrument now or hereafter evidencing or securing any of
the foregoing.
"Parent" means, with respect to any Lender, any Person
controlling such Lender.
"Participant" and "Participation" have the respective meanings
specified in Section 12.05.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
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"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by Borrower, Guarantor or
any ERISA Affiliate and which is covered by Title IV of ERISA or to which
Section 412 of the Code applies.
"Premises Documents" has the meaning given to such term in the
Mortgage.
"presence", when used in connection with any Environmental
Discharge or Hazardous Materials, means and includes presence, generation,
manufacture, installation, treatment, use, storage, handling, repair,
encapsulation, disposal, transportation, spill, discharge and release.
"Prime Rate" means that rate of interest from time to time
announced by ▇▇▇▇▇ Fargo (or any successor thereto) at its principal office
(presently in San Francisco, California) as its prime commercial lending rate;
or if ▇▇▇▇▇ Fargo is replaced as Administrative Agent, the prime commercial
lending rate announced by the successor Administrative Agent at its principal
office.
"Principal Amount" means, at any time, the aggregate
outstanding principal amount of the Note.
"Projected Actual Debt Service" means, as of any Determination
Date, the product of the average Principal Amount that is anticipated to be
outstanding during the immediately ensuing twelve (12)-month period multiplied
by the weighted average actual interest rate per annum in effect under the Note
as of such Determination Date.
"Pro-Forma Net Operating Income" means, for any prospective
twelve (12)-month period, an amount, reasonably determined by Administrative
Agent, equal to:
(a) all revenues from the operation of Borrower's
interests in the Property during such period, determined in
accordance with GAAP (but adjusted to eliminate the effects of
straight-lining of rents and further adjusted to exclude (i)
any rent receivables more than one hundred twenty (120) days
old and (ii) extraordinary and non-recurring sources of
income), including all rental and other payments, including,
without limitation, base rent, additional rent, promotional
revenues, percentage rent, parking rental and payments for
common area maintenance, taxes, insurance and operating
expenses and lease termination payments, excluding tenant
security deposits and Tenant LCs until such security deposits
or drawings under Tenant LCs are actually applied to tenants'
obligations, and interest on such deposits;
minus
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(b) all expenses in connection with Borrower's interests
in the Property during such period, determined in accordance
with GAAP, including insurance premiums, real estate taxes,
ground rent (adjusted to eliminate the effect of
straight-lining of rents), leasing expenses, promotional
expenses, maintenance and repair expenses, management fees
equal to $0.30 per square foot of the Improvements per annum
and any other operational expenses, all as determined in
accordance with GAAP, but not including (i) debt service
payable under the Loans or the Subordinate Loan, (ii) that
portion of the cost of any capital improvements, repairs,
replacements, alterations or equipment and other costs which
will be capitalized and depreciated or amortized on Borrower's
Financial Statements, including non-cash expenses such as
depreciation and amortization, provided that such deduction is
in accordance with GAAP, (iii) that portion of brokerage
commissions and tenant incentives (including, without
limitation, tenant improvement costs and expenses) relating to
the leasing of the Property, or portions thereof, and legal
fees relating to negotiation of leases at the Property, or
portions thereof (in each case, including extensions or
renewals), which are capitalized and depreciated or amortized
on Borrower's Financial Statements in accordance with GAAP,
(iv) costs of repairing or restoring the Property, or portions
thereof, after fire, casualty or condemnation, not covered by
insurance, (v) interest paid by Borrower to tenants on
security deposits collected under leases of the Property, or
portions thereof, (vi) any security deposits returned by
Borrower during such period to tenants under leases of the
Property, or portions thereof, (vii) any income or capital
gains taxes payable upon the income or capital gains of
Borrower or its members and (viii) funds deposited or required
to be deposited into the Debt Service Reserve Account.
"Property" means the real property located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ on which the Improvements are situated and which is
more particularly described on Schedule A to the Mortgage.
"Pro Rata Share" means, for purposes of this Agreement and
with respect to each Lender, a fraction, the numerator of which is the amount of
such Lender's Loan Commitment and the denominator of which is the Total Loan
Commitment.
"Prohibited Transaction" means any transaction proscribed by
Section 406 of ERISA or Section 4975 of the Code and to which no statutory or
administrative exemption applies.
"Reckson" means Reckson Operating Partnership, L.P., a
Delaware limited partnership which is owner of 100% of the common equity
interests in Metropolitan.
"Reckson Credit Facility" means the credit facility extended
to Reckson pursuant to that certain Revolving Credit Agreement dated September
7, 2000 among Reckson (as borrower), the lenders signatory thereto and The Chase
Manhattan Bank (as Administrative Agent), including any and all replacements or
refinancings thereof.
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"Reckson Indebtedness" means, individually and collectively,
(1) any or all of Reckson's public unsecured indebtedness and (2) Reckson's
indebtedness under the Reckson Credit Facility.
"Refinance DSCR" means, as of any Determination Date, the
ratio, as reasonably determined by Administrative Agent, of (1) Adjusted
Pro-Forma Net Operating Income for the immediately ensuing twelve (12) month
period to (2) Hypothetical Annual Debt Service for such Determination Date.
"Regulation D" and "Regulation U" mean, respectively,
Regulation D and Regulation U of the Board of Governors of the Federal Reserve
System.
"Regulatory Change" means, with respect to any Lender, any
change after the date of this Agreement in federal, state, municipal or foreign
laws or regulations (including Regulation D) or the adoption or making after
such date of any interpretations, directives or requests applying to a class of
lenders including such Lender of or under any federal, state, municipal or
foreign laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Relevant Documents" has the meanings specified in Section
11.02.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the thirty (30)
day notice period is waived under subsections .13, .14, .16, .18, .19 or .20 of
PBGC Reg. ss. 2615.
"Required Lenders" means, at any time, those Lenders having
Pro Rata Shares aggregating at least 66 2/3%; provided, however, that during the
existence of an Event of Default, the "Required Lenders" shall be those Lenders
holding at least 66 2/3% of the then aggregate unpaid principal amount of the
Loans.
"▇▇▇▇▇▇▇ Lease" means the lease dated as of May 13, 1998
between 919 Associates, as landlord, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, as tenant,
covering approximately 212,000 net rentable square feet of the Improvements, as
assigned to Borrower by assignment dated as of the date hereof.
"Solvency Certificate" means a certificate in the form of
EXHIBIT D.
"Solvent" means, when used with respect to any Person, that
the fair value of the property of such Person, on a going concern basis, is
greater than the total amount of liabilities (including, without limitation,
contingent liabilities) of such Person.
"Subordinate Lender" means Metropolitan 919 Manager LLC, a
Delaware limited liability company which is the sole managing member of
Borrower. 100% of the equity interests in Subordinate Lender are owned by
Metropolitan.
"Subordinate Loan" means the loan, initially in an amount not
to exceed $95,000,000 (which amount shall decrease as portions of the
Subordinate Mortgage are assigned to Administrative Agent in accordance with
Sections 2.01 and 4.02), from Subordinate Lender to Borrower secured by the
Subordinate Mortgage.
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"Subordinate Mortgage" means the mortgage, beneficially held
by Subordinate Lender, of Borrower's interest in the Property, subordinate in
all respects to the Mortgage, that secures the Subordinate Loan.
"Subordinate Mortgage Assignment" means the Assignment of
Mortgage Loan, dated the date hereof, from Subordinate Lender to Administrative
Agent whereby all documents (other than guaranties) evidencing or securing the
Subordinate Loan are assigned as security for the payment and performance of the
Obligations.
"Subordination Agreement" means the Subordination Agreement,
dated the date hereof, between Administrative Agent and Subordinate Lender
whereby, among other things, the Subordinate Loan and all documents evidencing,
securing or otherwise relating thereto (other than guaranties from Persons
unrelated to Borrower or Guarantor) are subordinated in all respects to the
Loans and the Loan Documents.
"Substitute Lender" and "Substitution Notice" have the
respective meanings specified in Section 3.07.
"Supplemental Letter Agreement" means that certain letter
agreement, dated the date hereof, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Borrower.
"Tenant LCs" means any and all letters of credit issued for
the benefit of the landlord under any lease of portions of the Improvements to
secure the payment and performance of the obligations of the tenant thereunder,
including, without limitation, (1) in the case of the Debevoise Lease, those
certain letters of credit dated November 20, 1998 and February 11, 2000,
respectively, each issued by Citibank, N.A. and in the face amount of
$2,500,000, together with those letters of credit to be issued by Citibank, N.A.
or another nationally recognized commercial bank after the date hereof, all of
such existing and future letters of credit to increase to an aggregate amount of
at least $25,000,000 and (2) in the case of the ▇▇▇▇▇▇▇ Lease, that certain
letter of credit dated May 20, 1998 issued by Citibank, N.A. in the face amount
of $4,975,405, as amended by amendment dated June 16, 2000 increasing the face
amount thereto $9,536,535. Tenant LCs shall be subject to reduction from time to
time in accordance with the terms of the applicable lease.
"this Agreement" means this Secured Loan Agreement.
"Title Insurer" means the issuer(s) of the title insurance
policy(ies) insuring the Mortgage.
"Total Loan Commitment" means an amount equal to the aggregate
amount of all Loan Commitments.
"United States" and "U.S." mean the United States of America.
16
"▇▇▇▇▇ Fargo" has the meaning specified in the preamble.
"Work" means the performance of all work and the payment of
all costs thereof (including tenant inducements and leasing commissions) (1)
under Borrower's capital improvement program in respect of the Property, as
reflected in the Excel Spreadsheet entitled "919 Third Revised Budget" supplied
by Borrower to ▇▇▇▇▇▇▇ ▇▇▇▇▇ attached hereto as EXHIBIT F, and (2) as are
necessary to satisfy fully the landlord's pre-rent-commencement requirements and
obligations under the Debevoise Lease, the ▇▇▇▇▇▇▇ Lease and the BNP Lease.
Section 1.02 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP, and all
financial data required to be delivered hereunder shall be prepared in
accordance with GAAP.
Section 1.03 Computation of Time Periods. Except as otherwise
provided herein, in this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and words "to" and "until" each means "to but excluding".
Section 1.04 Rules of Construction. Except as provided
otherwise, when used in this Agreement, (i) "or" is not exclusive, (ii) a
reference to a Law includes any amendment, modification or supplement to, or
replacement of, such Law, (iii) a reference to a Person includes its permitted
successors and permitted assigns, (iv) all terms defined in the singular shall
have a correlative meaning when used in the plural and vice versa, (v) a
reference to an agreement, instrument or document shall include such agreement,
instrument or document as the same may be amended, modified or supplemented from
time to time in accordance with its terms and, if applicable, as permitted by
the Loan Documents, (vi) all references to Articles, Sections or Exhibits shall
be to Articles, Sections and Exhibits of this Agreement unless otherwise
indicated, (vii) "hereunder", "herein", "hereof" and the like refer to this
Agreement as a whole and (viii) all Exhibits to this Agreement shall be
incorporated herein. Any table of contents and the headings and captions
hereunder are for convenience only and shall not affect the interpretation or
construction hereof.
ARTICLE II
THE LOANS
Section 2.01 The Loans. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make, and Borrower agrees to
accept, a loan to Borrower (each such loan by a Lender, a "Loan"; such loans,
collectively, the "Loans") in an amount up to such Lender's Loan Commitment. The
Loans shall be funded in installments as follows. The Initial Funding will be in
the amount of $200,000,000 and shall be made upon Borrower's satisfaction of the
conditions set forth in Section 4.01. Fundings of the Loans subsequent to the
Initial Funding (including fundings of the "Debt Service Allocation" referred to
below) shall be made in each case by Lenders' purchasing
17
from Subordinate Lender a severed portion of the indebtedness secured by the
Subordinate Mortgage, each such portion to be in a principal amount equal to the
amount of the funding. A substitute note and mortgage evidencing and securing
such indebtedness being purchased will, contemporaneously with the making of the
funding, be consolidated with, and modified to be on the same terms as, the
then-existing Note and Mortgage (and thereupon will become part of the Note and
the Mortgage). The proceeds of fundings of the Loans subsequent to the Initial
Funding, representing the purchase price from Lenders to Subordinate Lender for
such indebtedness, shall be made available to Borrower by Subordinate Lender
pursuant to a loan agreement between them which shall provide, among other
things, that such proceeds shall be funded by Subordinate Lender to Borrower to
be used as set forth below. Subsequent fundings, in an aggregate amount equal to
(x) the excess, if any, of $230,000,000 over the amount of the Initial Funding
plus (y) portions of the Debt Service Allocation (as hereinafter defined) made
available for disbursement to Borrower as provided in the next paragraph of this
Section, shall be made no more frequently than three (3) times per month after
the date of the Initial Funding upon Borrower's satisfaction of the applicable
conditions set forth in Section 4.02. Subject to the provisions of the next
paragraph of this Section, the amount of each funding subsequent to the Initial
Funding shall be in increments of $5,000,000 (unless less than $5,000,000 is
available for disbursement pursuant to the terms hereof at the time of any
subsequent funding, in which case the amount of such subsequent funding shall be
equal to such remaining availability).
Initially, a $20,000,000 portion (the "Debt Service
Allocation") of that portion of the Loans not funded as part of the Initial
Funding shall be available only for the purpose of paying Debt Service
Deficiencies as provided in Section 2.15 and, if the provisions of Section 2.17
are applicable, an additional portion of the Loans shall be available only for
the purpose specified in Section 2.17. The amount of the Debt Service Allocation
(less portions thereof actually funded to pay Debt Service Deficiencies as
provided in said Section 2.15) shall be reduced, and the amount of any such
reduction made available to Borrower for disbursement as fundings subsequent to
the Initial Funding under the preceding paragraph of this Section, if and to the
extent that Borrower demonstrates, to the reasonable satisfaction of
Administrative Agent, that Borrower has paid interest under the Note from
sources other than the Loans or Adjusted Net Cash Flow (for example, by showing
that the amount of interest paid by Borrower, other than from proceeds of the
Loans, exceeds Adjusted Net Cash Flow for the applicable period of time). At
such time as the Holdback Release DSCR is equal to or greater than 1.10 to 1.0
for two (2) consecutive Determination Dates, any remaining Debt Service
Allocation shall be made available to Borrower for disbursement as fundings
subsequent to the Initial Funding under the preceding paragraph of this Section.
The Loans may be outstanding as (i) Base Rate Loans, (ii)
LIBOR Loans or (iii) a combination of the foregoing, as Borrower shall elect and
notify Administrative Agent in accordance with Section 2.13. The LIBOR Loan and
Base Rate Loan of each Lender shall be maintained at such Lender's Applicable
Lending Office.
Section 2.02 Nature of Lenders' Obligations. The obligations
of Lenders under this Agreement are several, and no Lender shall be responsible
for the failure of any other Lender to make any funding of a Loan to be made by
such other Lender. However, the failure of any Lender to make any funding of the
Loan to be made by it hereunder on the date specified therefor shall not relieve
any other Lender of its obligation to make any funding of its Loan specified
hereby to be made on such date.
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Section 2.03 Purpose. In no event shall proceeds of the Loans
be used in a manner that would violate Regulation U or in connection with a
hostile acquisition or for any illegal purpose.
Section 2.04 Procedures for Fundings. Borrower shall submit to
Administrative Agent a request for each funding of proceeds of the Loans (other
than the Initial Funding) no later than 11:00 a.m. (New York time) on the date
which is five (5) Business Days prior to the date the funding is to be made.
Administrative Agent, upon its receipt and approval of the request for funding,
will so notify all Lenders either by telephone or by facsimile. Not later than
10:00 a.m. (New York time) on the date a requested funding is to be made, each
Lender shall, through its Applicable Lending Office and subject to the
conditions of this Agreement, make the amount to be funded by it on such day
available to Administrative Agent, at Administrative Agent's Office and in
immediately available FUNDS. The amount so received by Administrative Agent
shall, subject to the conditions of this Agreement, be made available, in
immediately available funds, by (i) in the case of the Initial Funding,
Administrative Agent's wiring funds as shall be directed, or crediting such
account as shall be designated by Borrower in its request for the funding or
(ii) in the case of subsequent fundings, Administrative Agent's crediting
account no. 0713-939635 maintained by Subordinate Lender with Administrative
Agent, which account, pursuant to Subordinate Lender's agreement with Borrower
and Subordinate Lender's irrevocable authorization and direction to
Administrative Agent contained in the Subordination Agreement, will, immediately
following such crediting, be debited by the amount of such credit for the
account of Borrower, and such amount shall then (A) be wire transferred to such
account as may be designated by Borrower, in the case of fundings other than
fundings of the Debt Service Allocation or (B) be applied by Administrative
Agent in payment of interest on the Note, in the case of fundings of the Debt
Service Allocation, in either case, as specified in Borrower's request for
funding. Administrative Agent will make available to Borrower no later than 2:00
p.m. (New York time) on the date of the funding the funds received by
Administrative Agent from Lenders.
Section 2.05 Interest Periods; Renewals. In the case of the
LIBOR Loans, Borrower shall select an Interest Period of any duration in
accordance with the definition of Interest Period in Section 1.01, subject to
the following limitations: (i) no Interest Period may extend beyond the Maturity
Date, (ii) if an Interest Period would end on a day which is not a Business Day,
such Interest Period shall be extended to the next Business Day, unless such
Business Day would fall in the next calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day and (iii) only eight
(8) discrete segments of a Lender's Loan bearing interest at a LIBOR Interest
Rate, for a designated Interest Period, pursuant to a particular Election,
Conversion or Continuation, may be outstanding at any one time (each such
segment of each Lender's Loan corresponding to a proportionate segment of each
of the other Lenders' Loans).
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Upon notice to Administrative Agent as provided in Section
2.13, Borrower may Continue any LIBOR Loan on the last day of the Interest
Period of the same or different duration in accordance with the limitations
provided above.
Section 2.06 Interest. Borrower shall pay interest to
Administrative Agent for the account of the applicable Lender on the outstanding
and unpaid principal amount of the Loans, at a rate per annum as follows: (i)
for Base Rate Loans at a rate equal to the Base Rate and (ii) for LIBOR Loans at
a rate equal to the applicable LIBOR Interest Rate plus the Applicable Margin.
Any principal amount not paid when due (when scheduled, at acceleration or
otherwise) shall bear interest thereafter, payable on demand, at the Default
Rate.
The interest rate on Base Rate Loans shall change when the
Base Rate changes. Interest shall be calculated for the actual number of days
elapsed on the basis of, in the case of LIBOR Loans, three hundred sixty (360)
days and, in the case of Base Rate Loans, three hundred sixty five (365) days.
Accrued interest shall be due and payable in arrears upon and
with respect to any payment or prepayment of principal and, in the case of both
Base Rate Loans and LIBOR Loans, on each Interest Payment Date; provided,
however, that interest accruing at the Default Rate shall be due and payable on
demand.
Section 2.07 Fees.
(a) Borrower agrees to pay to Administrative Agent, for its
own account, the periodic administration fee provided for in a separate
agreement between Borrower and Administrative Agent.
(b) Borrower agrees to pay to ▇▇▇▇▇▇▇ ▇▇▇▇▇, for the accounts
of the parties specified therein, the fees provided for in the Supplemental
Letter Agreement.
Section 2.08 Note. The Loans shall be evidenced by, and repaid
with interest in accordance with, a single global promissory note of Borrower in
the form of EXHIBIT B, duly completed and executed by Borrower, in a principal
amount initially equal to the amount of the Initial Funding and thereafter
increased at the time of each subsequent funding by the amount of such funding
as provided in Sections 2.01 and 4.02, payable to Administrative Agent for the
account of the respective Lenders, for the further account of their respective
Applicable Lending Offices (such note, as the same may hereafter be increased,
amended, modified, extended, severed, assigned, renewed or restated from time to
time, including pursuant to Sections 2.01 and 4.02, the "Note"). The Note shall
mature, and all outstanding principal and accrued interest and other sums
thereunder shall be paid in full, on the Maturity Date, as the same may be
accelerated.
Administrative Agent is hereby authorized by Borrower to
endorse on the schedule attached to the Note, the amount of each funding of and
each payment of principal received by Lenders under the Loans, which endorsement
shall, in the absence of manifest error, be conclusive as to the outstanding
balance of the Loans. The failure by Administrative Agent to make such notations
with respect to the Loans or each funding or payment shall not limit or
otherwise affect the obligations of Borrower under this Agreement or the Note.
20
Section 2.09 Prepayments. Borrower may, upon at least two (2)
Business Days' notice to Administrative Agent in the case of the Base Rate
Loans, and at least three (3) Business Days' notice to Administrative Agent in
the case of LIBOR Loans, prepay the Loans; provided, however, that (i) each
partial prepayment (other than a prepayment pursuant to Section 3.07 or Section
8.02(c)) shall be in a minimum amount of $1,000,000 and (ii) each prepayment
shall include (A) all interest accrued on the amount of principal prepaid
through the date of prepayment and (B) any amounts in connection with such
prepayment that are payable pursuant to Article III. Amounts prepaid may not be
reborrowed.
Section 2.10 Method of Payment. Borrower shall make each
payment under this Agreement and under the Note not later than Noon (New York
time) on the date when due in Dollars to Administrative Agent at Administrative
Agent's Office in immediately available funds. Administrative Agent will
thereafter, on the day of its receipt of each such payment, cause to be
distributed to each Lender (i) such Lender's appropriate share (based upon the
respective outstanding principal amounts and rate(s) of interest under the Loans
of all Lenders) of the payments of principal and interest in like funds for the
account of such Lender's Applicable Lending Office and (ii) fees payable to such
Lender in accordance with the terms hereof.
Except to the extent otherwise provided herein, whenever any
payment to be made hereunder or under the Note is due on any day other than a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of
the payment of interest and other fees, as the case may be.
Notwithstanding the foregoing provisions of this Section, (x)
Administrative Agent shall make no payment to a Delinquent Lender until the
Non-Delinquent Lenders have been paid in full all outstanding principal, accrued
and unpaid interest and any other sums owing to them under the Loan Documents,
it being understood that payments of interest on account of the outstanding
principal amount of the Note held by the Delinquent Lender shall be held by
Administrative Agent in a non-interest bearing account and not distributed to
the Delinquent Lender until such time as all principal, interest and other sums
due to the Non-Delinquent Lenders have been paid in full, (y) any payments
(other than interest, as provided in clause (x) above) which would otherwise be
due a Delinquent Lender shall be distributed to the Non-Delinquent Lenders until
such time as all principal, interest and other sums due to the Non-Delinquent
Lenders have been paid in full (except that any such amounts otherwise due a
Delinquent Lender received by Administrative Agent during an Election Period
shall be retained by Administrative Agent until the expiration of the Election
Period and either paid to the Delinquent Lender, if the delinquency is cured, or
paid to the Non-Delinquent Lenders, if the delinquency is not cured) and (z)
Administrative Agent shall deduct, from amounts due (or, in the case of a
Delinquent Lender, amounts that would otherwise be
21
payable to such Delinquent Lender being held by Administrative Agent pursuant to
clause (x) above) a Lender in default under its obligations under Section 10.05,
the amount owing by such Lender pursuant to said Section 10.05 and pay the
amount so deducted to itself, the other Lenders, or such other party as is
entitled to such amount, as applicable. If Borrower pays amounts that are not
distributed to a Delinquent Lender in accordance with this Section, such failure
to distribute shall not constitute a Default.
Section 2.11 Elections, Conversions or Continuation of Loans.
Subject to the provisions of Article III and Sections 2.05 and 2.12, Borrower
shall have the right to Elect to have all or a portion of the funding of the
Loans be LIBOR Loans, to Convert Base Rate Loans into LIBOR Loans, to Convert
LIBOR Loans into Base Rate Loans, or to Continue LIBOR Loans as LIBOR Loans, at
any time or from time to time, provided that (i) Borrower shall give
Administrative Agent notice of each such Election, Conversion or Continuation as
provided in Section 2.13 and (ii) a LIBOR Loan may be Converted or Continued
only on the last day of the applicable Interest Period for such LIBOR Loan.
Except as otherwise provided herein, each Election, Continuation and Conversion
shall be applicable to each Lender's Loan in accordance with its Pro Rata Share.
Section 2.12 Minimum Amounts. With respect to the Loans as a
whole, each Election (other than an Election with regard to a funding of the
Debt Service Allocation) and each Conversion shall be in an amount at least
equal to $1,000,000 and in integral multiples of $100,000.
Section 2.13 Certain Notices Regarding Elections, Conversions
and Continuations of Loans. Notices by Borrower to Administrative Agent of
Elections, Conversions and Continuations of LIBOR Loans shall be irrevocable and
shall be effective only if received by Administrative Agent not later than 10:00
a.m. (New York time) on the number of Business Days prior to the date of the
relevant Election, Conversion or Continuation specified below:
Number of Business
Days Prior Notice
-----------------
Conversions into Base Loans two (2)
Elections of, Conversions into or three (3)
Continuations as, LIBOR Loans
Promptly following its receipt of any such notice, Administrative Agent shall so
advise all Lenders either by telephone or by facsimile. Each such notice of
Election shall specify the portion of the amount of the funding that is to be
LIBOR Loans (subject to Section 2.12) and the duration of the Interest Period
applicable thereto (subject to Section 2.05); each such notice of Conversion
shall specify the LIBOR Loans or Base Rate Loans to be Converted; and each such
notice of Conversion or Continuation shall specify the date of Conversion or
Continuation (which shall be a Business Day), the amount thereof
22
(subject to Section 2.12) and the duration of the Interest Period applicable
thereto (subject to Section 2.05). In the event Borrower fails to furnish a
notice of Election three (3) Business Days prior to the scheduled date for a
funding of the Loans, Borrower shall be deemed to have Elected that such funding
be a LIBOR Loan with an Interest Period of one (1) month, unless such Interest
Period would expire after the Maturity Date, in which case such funding shall be
a Base Rate Loan. With respect to any portion of the Loans that is a LIBOR Loan,
in the event that Borrower fails to furnish a notice to Administrative Agent
within the time periods set forth above either to Convert or Continue such
portion of the Loans, such portion shall automatically be Continued as a LIBOR
Loan with an Interest Period of one (1) month, unless such Interest Period would
expire after the Maturity Date, in which case such portion of the Loans will
automatically be Converted to a Base Rate Loan.
Section 2.14 Late Payment Premium. Borrower shall, at
Administrative Agent's option, pay to Administrative Agent for the account of
Lenders a late payment premium in the amount of 4% of any payments of interest
under the Loans made more than ten (10) days after the due date thereof, which
shall be due with any such late payment.
Section 2.15 Debt Service Reserve. On or before the Closing
Date, Borrower shall establish an interest-bearing account (the "Debt Service
Reserve Account"), to be maintained with and controlled by Administrative Agent,
into which Borrower shall deposit, no later than five (5) Business Days prior to
each Interest Payment Date, an amount at least equal to the interest becoming
due and payable on such Interest Payment Date. Administrative Agent is hereby
irrevocably authorized and directed, on each Interest Payment Date, to withdraw
from the Debt Service Reserve Account an amount equal to the interest then due
and payable under the Note and to distribute to each Lender such Lender's
appropriate share thereof for the account of such Lender's Applicable Lending
Office. If, however, five (5) Business Days prior to any Interest Payment Date,
the amount on deposit in the Debt Service Reserve Account is not sufficient to
pay the interest to become due and payable on such Interest Payment Date (the
amount of any such insufficiency, the "Debt Service Deficiency"), Administrative
Agent shall, on such fifth (5th) Business Day prior to the Interest Payment
Date, so notify Borrower and each Lender, and each Lender shall fund, on such
Interest Payment Date, proceeds of its Loan in an amount equal to its Pro Rata
Share of the Debt Service Deficiency. Such notice to Borrower and Lenders will
indicate whether the making of the funding would result in a breach of
Borrower's covenants under Section 7.03 and, if such breach would result, will
specify the additional amount required to be hedged to avoid default under
Section 7.03. Proceeds of the Loans so funded by Lenders shall effect a dollar
for dollar reduction in the Debt Service Allocation. Notwithstanding anything to
the contrary contained in this Agreement or the other Loan Documents, to the
extent a Delinquent Lender is obligated under this Agreement to fund proceeds of
its Loan in respect of interest on the Note, and fails to do so, such portion of
the interest on the Delinquent Lender's Loan (i.e., the interest on the
Delinquent Lender's Loan that, absent the Delinquent Lender's failure to fund,
would have been paid by fundings of the Debt Service Allocation) shall accrue
(without interest on such interest not funded) and payment thereof shall be
deferred until the Maturity Date (whether as stated or by
23
acceleration or otherwise), it being understood that the maximum amount of
interest that may be so deferred shall be the undisbursed portion of the
Delinquent Lender's portion of the Debt Service Allocation. Accordingly, failure
of Borrower to pay such interest that was required to be, but was not in fact,
funded on a particular Interest Payment Date shall not constitute a Default.
Interest earned by Borrower on the Debt Service Reserve Account shall be
remitted to Borrower on the Interest Payment Date.
Section 2.16 Extension of Maturity. Borrower shall have the
option, exercisable twice, to extend the Maturity Date for a period of one (1)
year each, subject to, in each case, (i) Administrative Agent's receipt of a
written request from Borrower for such extension not later than thirty (30) days
prior to the Maturity Date to be extended, (ii) the absence, as of the Maturity
Date to be extended, of any Event of Default, (iii) Administrative Agent's
receipt prior to the Maturity Date to be extended, for the account of Lenders in
accordance with their Pro Rata Shares, of an extension fee in an amount equal to
0.25% of the Principal Amount to be extended, (iv) the execution and delivery of
such note extension agreements as Administrative Agent may reasonably require,
(v) the evidence of the lien-free completion of the Work, as required by Section
6.14, shall have been provided by Borrower, (vi) Borrower's compliance with the
financial covenants set forth in Section 8.01 and there being no cash flow
sweep, as contemplated by Section 8.02, in effect, each as of the Maturity Date
to be extended and (vii) Borrower's entering into one or more interest rate
protection agreement(s), covering the extended term of the Loans, mutually
acceptable to Borrower and the Required Lenders, and executing and delivering to
Administrative Agent an assignment thereof substantially in the form of the Cap
Assignment (and causing the counterparty under each such interest rate
protection agreement to consent to such assignment). Notwithstanding anything to
the contrary contained herein, there shall be no further fundings of proceeds of
the Loans during any extension term and, following Borrower's exercise of the
first extension option as provided above, the Loan Commitments of the Lenders
with respect to any then undisbursed proceeds of the Loans shall automatically
terminate.
Section 2.17 Interest Rate Cap during Third Year of Term.
(a) If Borrower opts to enter into a two (2)-year interest
rate cap pursuant to clause (y) of paragraph (27) of Section 4.01, but not
otherwise, then the provisions of this Section shall apply. Borrower
acknowledges and agrees that, during the first two (2) years of the term of the
Loans, Lenders shall withhold from disbursement a portion of the Loans (which
shall be in addition to the Debt Service Allocation) an amount equal to the
cost, as reasonably determined by Administrative Agent, as of each Determination
Date, which determination shall be effective for the immediately following
calendar quarter (the "Cap Cost"), that Borrower would be required to pay to
obtain a forward interest rate cap, covering a notional principal amount equal
to the anticipated Principal Amount from time to time during the third year of
the term of the Loans, providing for a capped rate of no more than 9.25% per
annum (the floating rate being, at Borrower's option, the one (1)-, two (2)- or
three (3) month LIBOR Base Rate), for a term coinciding with the third year of
the term of the Loans. The total amount held back as of any date shall be the
Cap Cost in effect for such date, as the same may increase or decrease in
accordance with the foregoing. The parties hereto acknowledge that for
24
the period from the date hereof through December 31, 2000, the Cap Cost is
$206,000, and such amount will be held back from availability under the Loans
for purposes of the Initial Funding and any subsequent fundings during such
period. Borrower covenants that if, at any time during the first two (2) years
of the terms of the Loans, the Cap Cost exceeds the amount of the undisbursed
portion of the Loans (other than the Debt Service Allocation), Borrower shall,
within three (3) Business Days after demand by Administrative Agent, deposit an
amount equal to such excess with Administrative Agent, which amount shall be
deposited by Administrative Agent into an interest-bearing, "blocked" cash
collateral account to be established with Administrative Agent (the "Cap
Collateral Account") and held by Administrative Agent for the benefit of Lenders
as hereinafter provided. Borrower hereby assigns the Cap Collateral Account and
all sums therein, including interest thereon, to Administrative Agent, for the
benefit of Lenders, as security for the payment and performance of the
Obligations and acknowledges that Borrower shall have no right to such sums
except to the extent specifically provided for herein. Borrower further
acknowledges that Administrative Agent shall retain possession of all documents
evidencing the Cap Collateral Account to perfect its security interest therein.
Notwithstanding anything to the contrary contained herein, upon the occurrence
of an Event of Default, Administrative Agent may, at the option of the Required
Lenders, apply any and all sums in the Cap Collateral Account (including
interest) to the immediate reduction of the Principal Amount and/or accrued and
unpaid interest and/or other sums payable hereunder or under the Note or other
Loan Documents, in such order and amounts as the Required Lenders shall elect.
Administrative Agent is hereby appointed Borrower's attorney-in-fact for the
purpose of withdrawing any and all sums from the Cap Collateral Account.
Borrower agrees to execute such further documents (including security agreements
and UCC-1 financing statements) and do such further acts as Administrative Agent
may reasonably request to confirm or perfect the assignment and security
interest provided for in this Section.
(b) Borrower covenants that it will, on or before the second
anniversary of the date hereof, enter into an interest rate cap agreement, with
a counterparty reasonably satisfactory to Administrative Agent, conforming to
the requirements of paragraph (a) above, and will execute and deliver to
Administrative Agent an assignment thereof substantially in the form of the Cap
Assignment (and will cause the counterparty under such cap agreement to consent
to such assignment). The amount withheld from disbursement pursuant to paragraph
(a) above shall be disbursed to pay Borrower's cost of obtaining such interest
rate cap, and for no other purpose; provided, however, that if the amount
withheld exceeds the actual cost Borrower pays for such interest rate cap, the
restrictions of this Section shall not apply to the funding of such excess.
(c) Upon Borrower's entering into an interest rate cap
agreement and delivering an assignment thereof consented to be the counterparty
as required by paragraph (b) above, the provisions of paragraph (a) shall cease
to apply, and Administrative Agent shall, within three (3) Business Days after
the satisfaction of such conditions, release all sums (including interest), if
any, then on deposit in the Cap Collateral Account to Borrower and such sums
shall be deemed free of the assignment and security interest created pursuant to
this Section, and Administrative Agent shall execute such further documents
(including UCC termination statements) to confirm the foregoing as Borrower
shall reasonably request.
25
ARTICLE III
YIELD PROTECTION; ILLEGALITY; ETC.
Section 3.01 Additional Costs. Borrower shall pay directly to
Administrative Agent, for the account of the applicable Lender, from time to
time within thirty (30) days after demand, any increased costs actually incurred
by such Lender resulting from its making or maintaining a LIBOR Loan, or its
obligation to make or maintain a LIBOR Loan, or its obligation to Convert a Base
Rate Loan to a LIBOR Loan hereunder, or any reduction in any amount receivable
by such Lender hereunder in respect of its LIBOR Loan or such obligations (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), in each case resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable
to such Lender under this Agreement or the Note in respect of
any such LIBOR Loan (other than changes in the rate of general
corporate, franchise, branch profit, net income or other
income tax imposed on such Lender or its Applicable Lending
Office by the jurisdiction in which such Lender has its
principal office or such Applicable Lending Office); or
(2) (other than to the extent the LIBOR Reserve
Requirement is taken into account in determining the LIBOR
Rate at the commencement of the applicable Interest Period)
imposes or modifies any reserve, special deposit, deposit
insurance or assessment, minimum capital, capital ratio or
similar requirements relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of,
such Lender (including any LIBOR Loan or any deposits referred
to in the definition of "LIBOR Interest Rate" in Section
1.01), or any commitment of such Lender (including such
Lender's Loan Commitment hereunder); or
(3) imposes any other condition affecting this Agreement
or the Note (or any of such extensions of credit or
liabilities).
In connection with the foregoing, each Lender agrees not to
seek compensation from Borrower for any Additional Costs unless such Lender is
generally seeking similar compensation for such Additional Costs from its
similarly situated borrowers and each Lender shall use commercially reasonable
efforts to mitigate the amount of Additional Costs (which shall not require such
Lender to incur any material costs or to restructure or reallocate any assets
other than its Loan).
Without limiting the effect of the provisions of the first
paragraph of this Section, in the event that, by reason of any Regulatory
Change, any Lender either (i) incurs Additional Costs based on or measured by
the excess above a specified level of the
26
amount of a category of deposits of other liabilities of such Lender which
includes deposits by reference to which the LIBOR Interest Rate is determined as
provided herein or a category of extensions of credit or other assets of such
Lender which includes loans based on the LIBOR Interest Rate or (ii) becomes
subject to restrictions on the amount of such a category of liabilities or
assets which it may hold, then, if such Lender so elects by notice to Borrower
(with a copy to Administrative Agent), the obligation of such Lender to permit
Elections of, to Continue, or to Convert Base Rate Loans into, LIBOR Loans shall
be suspended (in which case the provisions of Section 3.04 shall be applicable)
until such Regulatory Change ceases to be in effect.
Determinations and allocations by a Lender for purposes of
this Section of the effect of any Regulatory Change pursuant to the first or
second paragraph of this Section, on its costs or rate of return of making or
maintaining its Loan or portions thereof or on amounts receivable by it in
respect of its Loan or portions thereof, and the amounts required to compensate
such Lender under this Section, shall be conclusive absent manifest error.
Section 3.02 Limitation on Types of Loans. Anything herein to
the contrary notwithstanding, if on or prior to the determination of the LIBOR
Interest Rate for any Interest Period:
(1) Administrative Agent determines (which determination
shall be conclusive absent manifest error) that quotations of
interest rates for the relevant deposits referred to in the
definition of "LIBOR Interest Rate" in Section 1.01 are not
being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for
the LIBOR Loans as provided herein; or
(2) a Lender determines (which determination shall be
conclusive) and promptly notifies Administrative Agent that
the relevant rates of interest referred to in the definition
of "LIBOR Interest Rate" in Section 1.01 upon the basis of
which the rate of interest for LIBOR Loans for such Interest
Period is to be determined do not adequately cover the cost to
such Lender of making or maintaining such LIBOR Loan for such
Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof, and so long
as such condition remains in effect, Lenders (or, in the case of the
circumstances described in clause (2) above, the affected Lender) shall be under
no obligation to permit Elections of LIBOR Loans, to Convert Base Rate Loans
into LIBOR Loans or to Continue LIBOR Loans and Borrower shall, on the last
day(s) of the then current Interest Period(s) for the affected outstanding LIBOR
Loans, either (x) prepay the affected LIBOR Loans or (y) Convert the affected
LIBOR Loans into Base Rate Loans in accordance with Section 2.11.
Section 3.03 Illegality. Notwithstanding any other provision
of this Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain a LIBOR
Loan hereunder, to
27
allow Elections of a LIBOR Loan or to Convert a Base Rate Loan into a LIBOR
Loan, then such Lender shall promptly notify Administrative Agent and Borrower
thereof and such Lender's obligation to make or maintain a LIBOR Loan, or to
permit Elections of, to Continue, or to Convert its Base Rate Loan into, a LIBOR
Loan shall be suspended (in which case the provisions of Section 3.04 shall be
applicable) until such time as such Lender may again make and maintain a LIBOR
Loan.
Section 3.04 Treatment of Affected Loans. If the obligations
of any Lender to make or maintain a LIBOR Loan, or to permit an Election of a
LIBOR Loan, to Continue its LIBOR Loan, or to Convert its Base Rate Loan into a
LIBOR Loan, are suspended pursuant to Sections 3.01 or 3.03 (each LIBOR Loan so
affected being herein called an "Affected Loan"), such Lender's Affected Loan
shall be automatically Converted into a Base Rate Loan on the last day of the
then current Interest Period for the Affected Loan (or, in the case of a
Conversion (or conversion) required by Sections 3.01 or 3.03, on such earlier
date as such Lender may specify to Borrower).
To the extent that such Lender's Affected Loan has been so
Converted (or the interest rate thereon so converted), all payments and
prepayments of principal which would otherwise be applied to such Lender's
Affected Loan shall be applied instead to its Base Rate Loan and such Lender
shall have no obligation to Convert its Base Rate Loan into a LIBOR Loan.
Section 3.05 Certain Compensation. Borrower shall pay to
Administrative Agent, for the account of the applicable Lender, upon the written
request of such Lender through Administrative Agent (which request shall include
a calculation of the amount(s) due), such amount or amounts to compensate it for
any loss, cost or expense actually incurred by such Lender that is attributable
to:
(1) any payment, prepayment or Conversion of a LIBOR
Loan made by such Lender on a date other than the last day of
an applicable Interest Period, whether by reason of
acceleration or otherwise; or
(2) any failure by Borrower for any reason to Convert or
Continue a LIBOR Loan to be Converted or Continued by such
Lender on the date specified therefor in the relevant notice
under Section 2.13 (it being understood that no notice of
Continuation or Conversion is required in the case of an
automatic Continuation or Conversion pursuant to the last
sentence of Section 2.13, but that Borrower will be deemed to
give such notice); or
(3) any failure by Borrower to borrow (or to qualify for
a borrowing of) a LIBOR Loan which would otherwise be made
hereunder on the date specified in the relevant Election
notice under Section 2.13 (it being understood that no notice
of Election is required in the case of a deemed Election
pursuant to the second to last sentence of Section 2.13, but
that Borrower will be deemed to give such notice).
28
Without limiting the foregoing, such compensation shall
include an amount equal to the present value (using as the discount rate an
interest rate equal to the rate determined under clause (y) below) of the
excess, if any, of (x) the amount of interest (exclusive of the Applicable
Margin) which otherwise would have accrued on the principal amount so paid,
prepaid, Converted or Continued (or not Converted, Continued or borrowed) for
the period from the date of such payment, prepayment, Conversion or Continuation
(or failure to Convert, Continue or borrow) to the last day of the then current
applicable Interest Period (or, in the case of a failure to Convert, Continue or
borrow, to the last day of the applicable Interest Period which would have
commenced on the date specified therefor in the relevant notice) at the
applicable rate of interest for the LIBOR Loan provided for herein, over (y) the
amount of interest (as reasonably determined by such Lender) based upon the
interest rate which such Lender would have bid in the London interbank market
for Dollar deposits, for amounts comparable to such principal amount and
maturities comparable to such period. A determination of any Lender as to the
amounts payable pursuant to this Section shall be conclusive absent manifest
error.
Section 3.06 Capital Adequacy. 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 therein, 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 Governmental 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 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 fifteen (15) days after demand by such Lender (with a copy to
Administrative Agent), Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender (or its Parent) for such reduction;
provided, however, that no Lender shall be permitted to recover any such amounts
that relate to any period prior to the date one hundred twenty (120) days prior
to the date of such demand. A certificate of any Lender claiming compensation
under this Section, setting forth in reasonable detail the basis therefor, shall
be conclusive absent manifest error.
Section 3.07 Substitution of Lenders. If any Lender (an
"Affected Lender") (i) makes demand upon Borrower for (or if Borrower is
otherwise required to pay) Additional Costs pursuant to Section 3.01 or amounts
pursuant to Section 3.06 or (ii) gives notice to Borrower that such Lender is
unable to make or maintain a LIBOR Loan as a result of a condition described in
Section 3.03 or clause (2) of Section 3.02, Borrower may, within ninety (90)
days of receipt of such demand or notice (or the occurrence of such other event
causing Borrower to be required to pay Additional Costs or amounts pursuant to
Section 3.06 or causing Section 3.03 or clause (2) of Section 3.02 to be
applicable), as the case may be, give notice (a "Substitution Notice") to
Administrative Agent and to each Lender of Borrower's intention either (x) to
prepay in full the Affected Lender's Loan and to terminate the Affected Lender's
entire Loan Commitment or (y) to replace the Affected Lender with another
financial institution (a "Substitute Lender") designated in such Substitution
Notice.
29
In the event Borrower opts to give the notice provided for in
clause (x) above, and if the Affected Lender shall not agree within thirty (30)
days of its receipt thereof to waive the payment of the Additional Costs or
amounts pursuant to Section 3.06 in question or the effect of the circumstances
described in Section 3.03 or clause (2) of Section 3.02, then, so long as no
Event of Default shall exist, Borrower may terminate the Affected Lender's
entire Loan Commitment, provided that in connection therewith it pays to the
Affected Lender all outstanding principal and accrued and unpaid interest under
the Affected Lender's Loan, together with all other amounts, if any, due from
Borrower to the Affected Lender, including all amounts properly demanded and
unreimbursed under this Article III.
In the event Borrower opts to give the notice provided for in
clause (y) above, and if (A) Administrative Agent shall, within thirty (30) days
of its receipt of the Substitution Notice, notify Borrower and each Lender in
writing that the proposed Substitute Lender is reasonably satisfactory to
Administrative Agent and (B) the Affected Lender shall not, prior to the end of
such thirty (30)-day period, agree to waive the payment of the Additional Costs
or amounts pursuant to Section 3.06 in question or the effect of the
circumstances described in Section 3.03 or clause (2) of Section 3.02, then the
Affected Lender shall, so long as no Event of Default shall exist, assign all of
its rights and obligations under this Agreement and the Note to the Substitute
Lender, and the Substitute Lender shall assume all of the Affected Lender's
rights and obligations, pursuant to an agreement, substantially in the form of
an Assignment and Assumption Agreement, executed by the Affected Lender and the
Substitute Lender. In connection with such assignment and assumption, the
Substitute Lender shall pay to the Affected Lender an amount equal to the
outstanding principal amount under the Affected Lender's Loan plus all interest
accrued thereon, plus all other amounts, if any (other than the Additional Costs
in question), then due and payable to the Affected Lender; provided, however,
that prior to or simultaneously with any such assignment and assumption,
Borrower shall have paid to such Affected Lender all amounts properly demanded
and unreimbursed under this Article III. Upon the effective date of such
assignment and assumption and the payment by the Substitute Lender to
Administrative Agent of a fee, for Administrative Agent's own account, in the
amount of $3,500, the Substitute Lender shall become a party to this Agreement
and shall have all the rights and obligations of a Lender as set forth in such
Assignment and Assumption Agreement, and the Affected Lender shall be released
from its obligations hereunder, and no further consent or action by any party
shall be required. If the Substitute Lender is not incorporated under the Laws
of the United States or a state thereof, it shall, prior to the first date on
which interest or fees are payable hereunder for its account, deliver to
Borrower and Administrative Agent certification as to exemption from deduction
or withholding of any United States federal income taxes in accordance with
Section 10.13. Each Substitute Lender shall be deemed to have made the
representations contained in, and shall be bound by the provisions of, Section
10.13.
30
Borrower, Administrative Agent and Lenders shall execute such
modifications to the Loan Documents as shall be reasonably required in
connection with and to effectuate the foregoing.
Section 3.08 "Lender" to Include Participants. For purposes of
Sections 3.01 through 3.06 and of the definition of "Additional Costs", the term
"Lender" shall, at each Lender's option, be deemed to include such Lender's
present and future Participants in its Loan to the extent of each such
Participant's actual Additional Costs or other losses, costs or expenses payable
pursuant to this Article III.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Initial Funding. The
obligations of Lenders hereunder and the obligation of each Lender to fund its
Pro Rata Share of the Initial Funding are subject to the condition precedent
that Lenders shall have received and approved on or before the Closing Date each
of the following documents, and each of the following requirements shall have
been fulfilled:
(1) Fees and Expenses. The payment of (i) all fees and
expenses incurred by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Administrative Agent
(including, without limitation, the reasonable fees and
expenses of legal counsel, the Engineering Consultant and any
valuation, environmental or insurance consultants), (ii) those
fees specified in the Supplemental Letter Agreement to be paid
by Borrower on or before the Closing Date and (iii) the first
installment of the administration fee required by Section
2.07(a);
(2) Note. The Note, duly executed by Borrower;
(3) Mortgage and UCCs. The Mortgage, duly executed by
Borrower and recorded in the appropriate land records,
together with duly executed financing statements filed under
the Uniform Commercial Code of all jurisdictions necessary or,
in the reasonable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, desirable to
perfect the lien created by the Mortgage;
(4) Guaranties and Environmental Indemnity. The Guaranty
of Completion (duly executed by Reckson), the Guaranty and
Indemnity Agreement (duly executed by Metropolitan) and the
Environmental Indemnity (duly executed by Borrower and
Metropolitan);
(5) Assignments and UCCs. The Assignments, duly executed
by the parties thereto, together with such duly executed
Uniform Commercial Code financing statements as are necessary
or, in the reasonable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, desirable to
perfect the liens created by the Assignments;
31
(6) Title Policy. A paid title insurance policy (or a
paid, irrevocable, unconditional commitment to issue a policy)
in the amount of the Mortgage, in ALTA 10-17-92 (with New York
endorsements) or other form approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
issued by the Title Insurer, which shall insure the Mortgage
to be a valid first lien on Borrower's interests in the
Property and Improvements, free and clear of all liens,
defects, encumbrances and exceptions other than those
previously approved by Administrative Agent, and shall contain
(i) full coverage against mechanics' liens (filed and
inchoate), (ii) a reference to the survey but no survey
exceptions, (iii) if such policy (or commitment) is dated
earlier than the date of the Initial Funding, an endorsement
to such policy (or commitment), in a form approved by ▇▇▇▇▇▇▇
▇▇▇▇▇, in form satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, redating the
policy (or commitment) as of the date of the Initial Funding
and setting forth no additional exceptions other than those
approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and (iv) such affirmative insurance
and endorsements as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may require; and shall be
accompanied by such reinsurance agreements between the Title
Insurer and title companies approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇, in ▇▇▇▇
facultative form approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and with direct
access provisions, as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may require;
(7) Survey. A current survey, certified to
Administrative Agent and the Title Insurer, showing (i) the
location of the perimeter of the Property by courses and
distances, (ii) all easements, rights-of-way, and utility
lines referred to in the title policy required by this
Agreement or which actually service or cross the Property
(with instrument, book and page number indicated), (iii) the
lines of the streets abutting the Property and the width
thereof, and any established building lines (and that such
roads have been dedicated for public use and are completed and
have been accepted by all required Governmental Authorities),
(iv) any encroachments and the extent thereof upon the
Property, (v) locations of all portions (with the acreage
thereof also identified) of the Property, if any, which are
located in an area designated as a "flood prone area" as
defined by U.S. Department of Housing and Urban Development
pursuant to the Flood Disaster Protection Act of 1973 and (vi)
the Improvements, and the relationship thereof by distances to
the perimeter of the Property, established building lines and
street lines;
(8) Appraisal. An independent M.A.I. appraisal,
commissioned by ▇▇▇▇▇▇▇ ▇▇▇▇▇, which appraisal shall indicate
both (x) the "as is" value of Borrower's interests in the
Property and Improvements and (y) the "completed value"
thereof assuming the full completion of and payment for the
Work and tenant improvements and leasing commissions presently
budgeted for the currently unleased space in the Improvements,
and shall comply in all respects with the standards for real
estate appraisals established pursuant to the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 and
the Uniform Standards of Professional Appraisal Practice;
(9) Insurance Policies. The policies and certificates of
hazard and other insurance required by the Mortgage, together
with evidence of the payment of the premiums therefor;
32
(10) Environmental Assessment Reports/Reliance Letter. A
Phase I Environmental Assessment Report (with accompanying
"reliance letter") with respect to the Property and
Improvements in accordance with ASTM Standard 1527-97
performed by a consultant selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and, if
required, any subsequent reports, including a Phase II report
(with accompanying "reliance letter"), necessary to satisfy
said consultant that no adverse environmental conditions
exist;
(11) Work. A complete set of the plans and
specifications for the building-wide capital improvements
portion of the Work and a budget and time schedule for the
completion of the Work (it being acknowledged that the budget
and schedule set forth in EXHIBIT F for the building-wide
capital improvements portion of the Work are approved);
(12) Consultant's Report. A detailed report from the
Engineering Consultant to the effect that (i) the Improvements
are in satisfactory condition and have been constructed in
accordance with the plans and specifications therefor approved
by all applicable Governmental Authorities, (ii) the
Improvements comply with all applicable zoning and other Laws,
and (iii) the Work can be completed within the budget and
schedule therefor;
(13) Permits and Other Approvals. Copies of any and all
authorizations, including plot plan and subdivision approvals,
zoning variances, sewer, building and other permits, required
by all Governmental Authorities for the use, occupancy and
operation of the Property and/or Improvements in accordance
with all applicable building, environmental, ecological,
landmark, subdivision and zoning Laws;
(14) Leases. Copies, certified to be true and complete,
of all executed leases of the Improvements (which leases shall
include, without limitation, the Debevoise Lease, the ▇▇▇▇▇▇▇
Lease and the BNP Lease), accompanied by notices of assignment
(in the form of EXHIBIT E), estoppel certificates from the
tenants thereunder and, in the case of Major Leases (i) at
▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ option, subordination non-disturbance and
attornment agreements and (ii) to the extent available,
current financial statements of the tenants (and guarantors of
the tenants' obligations, if applicable) thereunder; together
with the first rent roll, leasing report and operating
statement required by paragraph (3) of Section 6.09;
(15) Tenant LCs. The original, executed Tenant LCs,
certified by Borrower to be true and complete, together with
assignments in blank, executed by Borrower, with respect
thereto;
(16) Ground Lease and Premises Documents. A copy,
certified to be true and complete, of the Ground Lease and
each of the Premises Documents, together with estoppel
certificates with respect thereto from each of the parties
thereto;
33
(17) Management and Leasing Contracts. Copies, certified
to be true and complete, of all existing contracts providing
for the management or leasing of the Property and
Improvements, together with, in each case, such collateral
assignments or "will-serve" letters as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may
require;
(18) UCC Searches. Uniform Commercial Code searches with
respect to Borrower and advice from the Title Insurer to the
effect that searches of the proper public records disclose no
leases of personalty or financing statements filed or recorded
against Borrower or the Mortgaged Property;
(19) Financial Statements. For each of Reckson and
Metropolitan, Financial Statements (audited in the case of
Reckson and unaudited (but certified by a Financial Officer)
in the case of Metropolitan), each as of and for the year
ended December 31, 1999, and unaudited Financial Statements,
certified by a Financial Officer of Reckson or Metropolitan,
as the case may be, as of and for the quarter ended June 30,
2000;
(20) Organizational Documents. If Borrower, Guarantor or
any general partner or member of any of them is a corporation,
current copies of the following documents with respect to each
(unless otherwise indicated):
(i) a good-standing certificate from the
jurisdiction of its incorporation,
(ii) a resolution, certified by the corporate
secretary, of the shareholders or directors of the
corporation authorizing the consummation of the
transactions contemplated hereby and the execution,
delivery and performance of the Loan Documents and other
documents to be executed, delivered or performed by said
corporation (including any substitute or replacement
Note to be executed and delivered pursuant to the terms
hereof), and
(iii) a certificate of the corporate secretary as
to the incumbency of the officers executing any of the
documents required hereby,
and, if Borrower, Guarantor or any general partner or member
of any of them is a partnership, venture, limited liability
company or trust:
(iv) the entity's organizational agreement and all
amendments and attachments thereto, certified by a
general partner, venturer, member or trustee to be true
and complete,
(v) any certificates filed or required to be filed
by the entity in the jurisdiction of its formation, and
(vi) evidence of the authorization of the
consummation of the transactions contemplated hereby and
the execution, delivery and performance of the Loan
Documents and any other documents to be executed,
delivered and performed by said entity (including any
substitute or replacement Note to be executed and
delivered pursuant to the terms hereof), and including
any required consents by partners, venturers, members,
trustees or beneficiaries;
34
(21) Solvency Certificates. A duly executed Solvency
Certificate for each of Borrower, Reckson and Metropolitan;
(22) Opinion of Counsel. A favorable opinion, dated the
Closing Date, of counsel for Borrower and Guarantor, as to
such matters as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may reasonably request;
(23) Authorization Letter. The Authorization Letter,
duly executed by Borrower;
(24) Request for Funding. A request for funding in
accordance with Section 2.04, together with such supporting
documentation as Administrative Agent may reasonably request;
(25) Certificate. The following statements shall be true
and Administrative Agent shall have received a certificate
dated as of the Closing Date signed by a duly authorized
signatory of Borrower stating, to the best of the certifying
party's knowledge, the following:
(i) All representations and warranties contained in
this Agreement and in each of the other Loan Documents
are true and correct in all material respects on and as
of the Closing Date as though made on and as of such
date,
(ii) No Default or Event of Default has occurred
and is continuing, or is likely to result from the
transactions contemplated by this Agreement and the
other Loan Documents, and
(iii) None of the Improvements has been materially
injured or damaged by fire or other casualty;
(26) Supplemental Letter Agreement. The Supplemental
Letter Agreement, duly executed by Borrower;
(27) Interest Rate Protection and Assignment. A fully
executed counterpart of an interest rate cap agreement between
Borrower, as fixed rate payor, and a financial institution
reasonably acceptable to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as floating rate payor
(the floating rate being the one (1)-month LIBOR Base Rate),
covering a notional amount of $200,000,000, providing for a
capped rate of no more than 9.25% per annum, for a term
expiring no earlier than, at Borrower's option, either (x) the
Maturity Date or (y) the second anniversary of the date
hereof, and otherwise on terms and conditions reasonably
satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, together with an assignment
(the "Cap Assignment") of Borrower's rights thereunder to
Administrative Agent as security for the Loans, which
assignment shall be acknowledged and consented to by said
financial institution; if Borrower opts to enter into a two
(2) year cap pursuant to clause (y) above, then the provisions
of Section 2.17 shall apply;
35
(28) Reckson Credit Facility. Copies, certified by
Reckson to be true and complete, of all documents evidencing,
securing or otherwise relating to the Reckson Credit Facility
other than any such documents which relate solely to the
payment of fees or other items which are confidential in
nature;
(29) Subordinate Loan Documents. Original executed
counterparts certified by Borrower and the holder of the
Subordinate Loan to be true and complete, of all documents
evidencing, securing or otherwise relating to the Subordinate
Loan;
(30) Subordination Agreement. The Subordination
Agreement, duly executed by the parties thereto and in proper
form for recording;
(31) Bankruptcy Documents. A court-certified copy of the
order of the bankruptcy court order confirming the Plan of
Reorganization for 919 Fee Associates L.P. and ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Associates L.P.; and
(32) Additional Materials. Such other approvals,
documents, instruments or opinions as any Lender or
Administrative Agent may reasonably request.
The disbursement of the Initial Funding shall be conclusive evidence that
Lenders have received (or waived the requirement that Borrower deliver) the
items described in this Section, other than those items listed in that certain
Deferred Conditions Letter of even date herewith, which items Borrower covenants
to deliver by the times specified in such Deferred Conditions Letter.
Section 4.02 Conditions Precedent to Fundings After the
Initial Funding. The obligation of each Lender to make fundings of the Loans
subsequent to the Initial Funding shall be subject to satisfaction of the
following conditions precedent:
(1) No (i) Event of Default, (ii) Default in the payment
of interest or (iii) any other Default which, in the
reasonable judgment of the Required Lenders, is material shall
have occurred and be continuing as of the date of the funding;
(2) Administrative Agent shall have received a request
for funding in accordance with Section 2.04;
(3) Administrative Agent shall have received (i) a
severance agreement and an original substitute note and
mortgage from Borrower, evidencing and securing a portion of
the indebtedness secured by the Subordinate Mortgage in a
principal amount equal to the amount of the funding, (ii) a
confirmatory assignment of such substitute mortgage from
Subordinate Lender to
36
Administrative Agent, for the benefit of the Lenders, (iii) a
note and mortgage consolidation and modification agreement
between Borrower and Administrative Agent that consolidates
such substitute mortgage and note with the existing Mortgage
and Note and modifies such substitute mortgage and note to be
on the same terms as the existing Mortgage and Note, and a
replacement Note from Borrower to Administrative Agent on such
terms in the consolidated amount, together with a related
affidavit from a representative of Borrower under Section 255
of the New York Tax Law (all of the foregoing to be reasonably
satisfactory to Administrative Agent and to be duly executed
and, where applicable, acknowledged by Borrower and/or
Subordinate Lender) and (iv) such evidence of partnership,
limited liability company or corporate action to authorize the
execution and performance of the foregoing documents as
Administrative Agent may request;
(4) Administrative Agent shall have received a
continuation report and endorsement to the title policy(ies)
(or commitment(s)) insuring the Mortgage to the date of such
funding, in form reasonably approved by Administrative Agent,
which endorsement shall (i) redate the policy (or commitment)
to the date of the funding, (ii) increase the amount of the
policy by the amount of the funding and (iii) insure the
Mortgage as consolidated and modified by the documents
required by clause (3) above, without any exceptions, other
than (x) a survey exception with respect to matters subsequent
to the date of the Initial Funding, (y) those exceptions that
are exceptions to the title policy insuring the Mortgage on
the date of the Initial Funding and (z) other exceptions
reasonably approved by Administrative Agent; provided,
however, that from time to time if Administrative Agent has a
reasonable basis to believe that any changes have occurred
that would affect the survey of the Property, Borrower shall,
promptly following receipt of Administrative Agent's notice,
which shall state such reasonable basis, cause the surveyor to
update the survey, based on a visual inspection of the
Property, and shall cause the Title Insurer to issue an
endorsement omitting the general survey exception and
replacing it with a survey reading reasonably satisfactory to
Administrative Agent; and
(5) Borrower shall be in compliance with the covenants
set forth in Section 7.03.
Section 4.03 Deemed Representations. Each request by
Borrower for, and acceptance by Borrower of, a funding of proceeds of the Loans
shall constitute a representation and warranty by Borrower that, as of both the
date of such request and the date of the funding, (i) no (x) Event of Default,
(y) Default in the payment of interest or (z) other material Default has
occurred and is continuing and (ii) each representation or warranty contained in
this Agreement or the other Loan Documents is true and correct in all material
respects (other than for immaterial matters disclosed in writing to Lenders).
37
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and
each Lender as follows:
Section 5.01 Due Organization. Each of Borrower, Guarantor and
their respective general partners or managing members, as the case may be, is
duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its organization, has the power and authority to own its assets
and to transact the business in which it is now engaged, and, if applicable, is
duly qualified for the conduct of business and in good standing under the Laws
of the State of New York and each other jurisdiction in which such qualification
is required.
Section 5.02 Power and Authority; No Conflicts; Compliance
With Laws. The execution, delivery and performance of the obligations required
to be performed by each of Borrower or Guarantor of the Loan Documents do not
and will not (i) require the consent or approval of its shareholders, partners
or members, as the case may be, or such consent or approval has been obtained,
(ii) contravene its certificate of incorporation, by-laws, operating agreement,
partnership agreement or other organizational documents, (iii) violate any
provision of, or require any filing, registration, consent or approval under,
any Law (including, without limitation, Regulation U), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to it, (iv) result in a breach of or constitute a default under or
require any consent under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which it may be a party or by which it or its
properties may be bound or affected except for consents which have been
obtained, (v) result in, or require, the creation or imposition of any Lien,
upon or with respect to any of its properties now owned or hereafter acquired or
(vi) cause it to be in default under any such Law, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument; each of Borrower and Guarantor is in compliance with all
Laws applicable to it and its properties, except to the extent they are the
subject of a Good Faith Contest or as would not be likely to result in a
Material Adverse Change.
Section 5.03 Legally Enforceable Agreements. Each Loan
Document is a legal, valid and binding obligation of Borrower or Guarantor, as
the case may be, enforceable against Borrower or Guarantor, as the case may be,
in accordance with its terms, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally.
Section 5.04 Litigation. There are no actions, suits or
proceedings pending or, to its knowledge, threatened against Borrower, the
Property, the Improvements, the validity or enforceability of the Mortgage or
the priority of the Lien thereof, at law or in equity, before any court or
arbitrator or any Governmental Authority except actions, suits or proceedings
that have been disclosed to Administrative Agent in writing and (i) are fully
covered by insurance or (ii) are not likely to result in a Material Adverse
Change.
38
Section 5.05 Taxes. Borrower has filed all tax returns
(federal, state and local) required to be filed and has paid all taxes,
assessments and governmental charges and levies due and payable without the
imposition of a penalty, including interest and penalties, except to the extent
they are the subject of a Good Faith Contest.
Section 5.06 ERISA. Borrower is in compliance in all material
respects with all applicable provisions of ERISA. Neither a Reportable Event nor
a Prohibited Transaction has occurred with respect to any Plan which could
result in liability of Borrower; no notice of intent to terminate a Plan has
been filed nor has any Plan been terminated within the past five (5) years; no
circumstance exists which constitutes grounds under Section 4042 of ERISA
entitling the PBGC to institute proceedings to terminate, or appoint a trustee
to administer, a Plan, nor has the PBGC instituted any such proceedings; neither
Borrower nor the ERISA Affiliates have completely or partially withdrawn under
Sections 4201 or 4204 of ERISA from a Multiemployer Plan; Borrower and the ERISA
Affiliates have met the minimum funding requirements of Section 412 of the Code
and Section 302 of ERISA of each with respect to the Plans of each and there is
no material "Unfunded Current Liability" (as such quoted term is defined in
ERISA) with respect to any Plan established or maintained by each; and neither
Borrower nor the ERISA Affiliates has incurred any liability to the PBGC under
ERISA (other than for the payment of premiums under Section 4007 of ERISA); and,
in each of the foregoing cases, such circumstances are not likely to result in a
Material Adverse Change. Neither the extension of credit evidenced by the Note
nor any other transaction contemplated under the Loan Documents constitutes a
Prohibited Transaction.
Section 5.07 No Default on Outstanding Judgments or Orders.
Borrower has satisfied all judgments which are not being appealed or which are
not fully covered by insurance, and are not in default with respect to any
judgment, order, writ, injunction, decree, rule or regulation of any court,
arbitrator or federal, state, municipal or other Governmental Authority,
commission, board, bureau, agency or instrumentality, domestic or foreign, which
default is likely to result in a Material Adverse Change.
Section 5.08 No Defaults on Other Agreements. Except as
disclosed to Administrative Agent and Lenders in writing, neither Borrower nor
Guarantor is in default in any respect in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement or instrument which is likely to result in a Material Adverse Change.
Section 5.09 Government Regulation. Borrower is not subject to
regulation under the Investment Company Act of 1940 or any statute or regulation
limiting its ability to incur indebtedness for money borrowed as contemplated
hereby.
Section 5.10 Environmental Protection. To the best of
Borrower's knowledge, the Property does not contain any Hazardous Materials
that, under any
39
Environmental Law currently in effect, (i) would impose liability on Borrower or
Guarantor that is likely to result in a Material Adverse Change or (ii) is
likely to result in the imposition of a Lien on any assets of Borrower if not
properly handled in accordance with applicable Law. To the best of Borrower's
knowledge, neither it nor any portion of the Property or the Improvements is in
violation of, or subject to any existing, pending or threatened (in writing)
investigation or proceeding by any Governmental Authority under, any
Environmental Law. Borrower is not required by any Environmental Law to obtain
any permits or license to construct or use any improvements, fixtures, or
equipment with respect to the Property, or if such permit or license is required
it has been obtained; and, to the best of Borrower's knowledge, the prior use of
the Property has not resulted in the disposal or release of any Hazardous
Materials on or to any portion of the Property or any surrounding areas in
violation of applicable Law. The representations in this Section shall each be
deemed subject to and qualified by the information contained in the Phase I
Environmental Site Assessment by AquaTerra Assessment Services Corp., dated
August 8, 2000 (Project No. ATO-PE-10717), and the Phase I Environmental
Assessment by Dames & ▇▇▇▇▇, dated May 14, 1999.
Section 5.11 Solvency. Borrower and Guarantor are, and upon
consummation of the transactions contemplated by this Agreement, the other Loan
Documents and any other documents, instruments or agreements relating thereto,
will be, Solvent.
Section 5.12 Financial Statements. The Financial Statements of
Borrower and Guarantor most recently delivered to Lenders pursuant to the terms
of this Agreement are in all material respects complete and correct and fairly
present the financial condition of the subjects thereof as of the dates of and
for the periods covered by such statements, all in accordance with GAAP. There
has been no Material Adverse Change since the date of such most recently
delivered Financial Statements, and no borrowings which might give rise to a
Lien or claim against all or any portion of the Mortgaged Property (other than
the Subordinate Loan) or against the proceeds of the Loans have been made by
Borrower or others since the dates of such most recently delivered Financial
Statements.
Section 5.13 Insurance. Borrower has in force paid insurance
as required by the Mortgage and Borrower has in force paid insurance with
financially sound and reputable insurance companies or associations in such
amounts and covering such risks as are usually carried by companies engaged in
the same type of business and similarly situated.
Section 5.14 Accuracy of Information; Full Disclosure. To
Borrower's actual knowledge, neither this Agreement nor any of the documents,
financial statements, reports, notices, schedules, certificates, statements or
other writings listed in EXHIBIT H or furnished after the date hereof by
Borrower or Guarantor or at their written direction in accordance with the
requirements hereof or of the other Loan Documents (other than projections that
are made by Borrower in good faith) contains any untrue or misleading statement
of a material fact.
40
Section 5.15 Separate Tax and Zoning Lot. The Property
constitutes a distinct parcel for purposes of zoning and of taxes, assessments
and impositions (public or private) and is not otherwise considered as part of a
larger single lot for purposes of zoning or of taxes, assessments or impositions
(public or private).
Section 5.16 Zoning and other Laws; Covenants and
Restrictions. Except to the extent non-compliance would not result in a Material
Adverse Change, (i) the Improvements and the uses thereof comply with applicable
zoning, environmental, ecological, landmark and other applicable Laws, and all
requirements for such uses have been satisfied and (ii) Borrower and the
Property are in compliance with all applicable restrictions and covenants.
Section 5.17 Utilities Available. All utility services
necessary for the operation of the Improvements for their intended purposes are
available and servicing the Property, including water supply, storm and sanitary
sewer, gas, electric power and telephone facilities.
Section 5.18 Creation of Liens. Borrower has entered into no
contract or arrangement of any kind the performance of which by the other party
thereto would give rise to a Lien on all or part of the Mortgaged Property prior
to the Mortgage.
Section 5.19 Roads. All roads necessary for the full
utilization of the Improvements for their intended purposes have been completed
and dedicated to public use and accepted by all appropriate Governmental
Authorities.
Section 5.20 Premises Documents and Leases. Except for
modifications delivered to Administrative Agent, the Premises Documents and all
leases are unmodified and in full force and effect and, to Borrower's actual
knowledge, there are no defaults under any thereof that are likely to result in
a Material Adverse Change, and all conditions to the effectiveness and
continuing effectiveness thereof required to be satisfied as of the date hereof
have been satisfied, except to the extent non-satisfaction would not be likely
to result in a Material Adverse Change.
For purposes of this Article V the phrases "Borrower's
knowledge", "to the best of Borrower's knowledge" and phrases of similar import
shall mean the actual, conscious knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇▇▇▇, or their successors in their present positions in
Borrower or Guarantor, provided that such individuals have made reasonable
inquiry into the truth of the representations and warranties qualified by such
phrases.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as the Note shall remain unpaid or the Loan
Commitments remain in effect, or any other amount is owing by Borrower or
Guarantor to Administrative Agent or any Lender under any Loan Document or
otherwise in respect of the Loans, Borrower shall, and, in the case of Sections
6.01 through 6.03, shall (except as otherwise provided) cause Guarantor to:
41
Section 6.01 Maintenance of Existence. Preserve and maintain
its legal existence and good standing in the jurisdiction of its organization
and, in the case of Borrower only, in the State of New York, and qualify and
remain qualified as a foreign entity in each other jurisdiction in which such
qualification is required.
Section 6.02 Maintenance of Records. Keep adequate records and
books of account, in which complete entries will be made reflecting all of its
financial transactions, in accordance with GAAP.
Section 6.03 Compliance with Laws; Payment of Taxes. Comply in
all material respects with all Laws applicable to it or to any of its properties
or any part thereof, except, in the case of Guarantor, where non-compliance
would not be likely to result in a Material Adverse Change; such compliance to
include, without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its property,
except to the extent they are the subject of a Good Faith Contest, or, in the
case of Guarantor, failure to pay would not be likely to result in a Material
Adverse Change.
Section 6.04 Right of Inspection. At any reasonable time and
from time to time upon reasonable notice, permit Administrative Agent or any
Lender or any agent or representative thereof to examine and make copies and
abstracts from its records and books of account and visit and inspect the
Property and to discuss its affairs, finances and accounts with the independent
accountants of Borrower (it being understood that (x) the foregoing, unless
being undertaken in connection with a Default or Event of Default, shall be done
at the expense of the Lender or Lenders, as applicable, and (y) Administrative
Agent and Lenders shall coordinate the exercise of the foregoing rights so as to
minimize the frequency thereof and to minimize the disruption of Borrower's
business resulting therefrom); and cooperate with the Engineering Consultant to
enable it to perform its functions hereunder.
Section 6.05 Maintenance of Insurance. At all times, maintain
and keep in force the insurance required by the Mortgage.
Section 6.06 Compliance With Environmental Laws. Comply in all
material respects with all applicable Environmental Laws and timely pay or cause
to be paid all costs and expenses incurred in connection with such compliance,
except to the extent the same are the subject of a Good Faith Contest; and at
its sole cost and expense, promptly remove, or cause the removal of, any and all
Hazardous Materials or the effects thereof at any time identified as being on,
in, under or affecting the Property or the Improvements in violation of
applicable Environmental Law.
Section 6.07 Maintenance of Improvements. Do all things
reasonably necessary to maintain, preserve, protect and keep the Improvements in
good repair, working order and condition.
42
Section 6.08 Payment of Costs. Pay all costs and expenses
required for the satisfaction of the conditions of this Agreement, including,
without limitation, (i) all document and stamp taxes, recording and filing
expenses and fees and commissions lawfully due to brokers in connection with the
transactions contemplated hereby and (ii) any taxes, assessments, impositions
(public or private), insurance premiums, Liens, security interests or other
claims or charges against the Property.
Section 6.09 Reporting and Miscellaneous Document
Requirements. Furnish to Administrative Agent, which shall promptly furnish to
each Lender:
(1) Annual Financial Statements. For each of Borrower and
Guarantor, as soon as available and in any event within ninety (90)
days, in the case of Borrower, and one hundred and five (105) days, in
the case of Guarantor, after the end of each Fiscal Year, Financial
Statements as of the end of and for such Fiscal Year, in reasonable
detail and stating in comparative form the respective figures for the
corresponding date and period in the prior Fiscal Year, certified by a
Financial Officer of Borrower or Guarantor, as the case may be, and, in
the case of the Financial Statements of Borrower and Reckson, audited
by Borrower's Accountants;
(2) Quarterly Financial Statements. For each of Borrower and
Guarantor, as soon as available and in any event within forty-five (45)
days after the end of each calendar quarter, unaudited Financial
Statements as of the end of and for such calendar quarter, in
reasonable detail and stating in comparative form the respective
figures for the corresponding date and period in the prior Fiscal Year
and certified by a Financial Officer of Borrower or Guarantor, as the
case may be; provided, however, that no such Financial Statements shall
be required from Guarantor for the fourth quarter of any Fiscal Year
and the Financial Statements of Borrower for such fourth quarter shall
be due ninety (90), rather than forty-five (45), days after the end of
such fourth quarter;
(3) Leasing Reports and Property Information. As soon as
available and in any event within forty-five (45) days after the end of
each calendar quarter, a rent roll, leasing report and operating
statement (on a cash basis) in respect of the Property for such
quarter; provided, however, that the operating statement for the fourth
quarter of each Fiscal Year shall be delivered ninety (90) days after
the end of such quarter;
(4) Certificate of No Default and Financial Compliance. Within
forty-five (45) days after the end of each of the first three (3)
calendar quarters of each Fiscal Year and within ninety (90) days after
the end of the fourth calendar quarter, a certificate of a Financial
Officer of Borrower (i) stating that, to the best of his or her
knowledge, no Default or Event of Default has occurred and is
continuing, or if a Default or Event of Default has occurred and is
continuing, specifying the nature thereof and the action which is
proposed to be taken with respect thereto and (ii) stating that the
covenants contained in Article VIII have been complied with (or
specifying those that have not been complied with) and
43
including computations, in reasonable detail, demonstrating such
compliance (or non-compliance); and, within forty-five (45) days after
the end of each month, if any payment is required to be made into the
Cash Flow Collateral Account, a certificate of such officer setting
forth a statement of Net Cash Flow and a computation of the required
payment;
(5) Notice of Litigation. Promptly after the commencement and
knowledge thereof, notice of all actions, suits, and proceedings before
any court or arbitrator or any Governmental Authority, affecting (i)
Borrower or Guarantor which, if determined adversely, are likely to
result in a Material Adverse Change or (ii) all or any portion of the
Mortgaged Property;
(6) Notices of Defaults and Events of Default. As soon as
possible and in any event within ten (10) days after Borrower becomes
aware of the occurrence of a material Default or any Event of Default,
a written notice setting forth the details of such Default or Event of
Default and the action which is proposed to be taken with respect
thereto;
(7) Bankruptcy of Major Tenants. Promptly after becoming aware
of the same, written notice of the bankruptcy, insolvency or cessation
of operations of any tenant under a Major Lease;
(8) Material Adverse Change. As soon as is practicable and in
any event within five (5) days after knowledge of the occurrence of any
event or circumstance which is likely to result in or has resulted in a
Material Adverse Change, written notice thereof;
(9) Offices. Thirty (30) days' prior written notice of any
change in the chief executive office or principal place of business of
Borrower or Guarantor;
(10) Environmental and Other Notices. As soon as possible and
in any event within ten (10) days after receipt, copies of (i) all
Environmental Notices received by Borrower which are not received in
the ordinary course of business and which relate to the Property or a
situation which is likely to result in a Material Adverse Change and
(ii) all reports of any official searches made by any Governmental
Authority having jurisdiction over the Property or the Improvements,
and of any claims of violations thereof;
(11) Insurance Coverage. Promptly, such information concerning
Borrower's insurance coverage as Administrative Agent may reasonably
request;
(12) Proxy Statements, Etc. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements
and reports which Borrower or Guarantor sends to its equity holders,
and copies of all regular, periodic and special reports, and all
registration statements which Borrower or Guarantor files with the
Securities and Exchange Commission or any Governmental Authority which
may be substituted therefor, or with any national securities exchange;
44
(13) Capital Expenditures. As soon as available and in any
event within one-hundred five (105) days after the end of each Fiscal
Year, a schedule of such Fiscal Year's capital expenditures and no
later than thirty (30) days prior to the end of such Fiscal Year, a
budget for the next Fiscal Year's planned operating and capital
expenditures and revenue for the Property; and
(14) General Information. Promptly, such other information
respecting the condition or operations, financial or otherwise, of
Borrower, Guarantor or the Property as Administrative Agent may from
time to time reasonably request.
Section 6.10 Continuing Accuracy of Representations and
Warranties. Cause all of the representations and warranties made to
Administrative Agent or Lenders herein and in the other Loan Documents to be
continuously true and correct in all material respects.
Section 6.11 Premises Documents and Leases. Deliver to
Administrative Agent, promptly following the execution thereof, certified copies
of (i) all amendments or supplements to any Premises Documents or any lease and
(ii) all leases, together with (to the extent available) current financial
statements of the tenants thereunder (and of any guarantors of such tenants'
obligations), and notices of assignment in the form of EXHIBIT E; keep all
Premises Documents and leases in full force and effect (except upon the
occurrence of a default by the third party thereto) and at all times do all
things reasonably necessary to compel performance by the parties to the Premises
Documents or the tenants under such leases, as the case may be, of all material
obligations, covenants and agreements by such parties or tenants, as the case
may be, to be performed thereunder; not enter into or modify (other than de
minimis modifications) any material Premises Documents or any Major Lease or any
guaranty thereof without the prior written consent of the Required Lenders, such
consent not to be unreasonably withheld or delayed; and not enter into any lease
other than a Major Lease unless such lease is on market terms and does not
materially adversely affect the value of the Property, and not modify any such
lease unless such lease, as modified, is on market terms and does not materially
adversely affect the value of the Property.
Section 6.12 Compliance with Covenants, Restrictions and
Easements. Comply in all material respects with all restrictions, covenants and
easements affecting the Property or the Improvements thereon and cause the
satisfaction of all conditions of this Agreement.
Section 6.13 Management, Brokerage and Service Contracts.
Deliver to Administrative Agent, (i) as and when executed, certified copies of
all management and exclusive brokerage contracts with respect to the
Improvements and (ii) as and when requested by Administrative Agent, copies of
all service contracts entered into with respect to the Improvements.
Contemporaneously with entering into each such contract, Borrower shall at
Administrative Agent's option, cause the same to be collaterally assigned to
Administrative Agent for the benefit of Lenders as additional security for the
Loans and/or cause the service provider under each such contract to undertake,
inter alia, to continue performance on Lenders' behalf without additional cost
45
in the case of an Event of Default (such undertaking shall also contain the
agreement of the service provider that such contract shall be terminable by
Lenders on thirty (30) days' notice following an Event of Default; provided,
however, Lenders agree to engage a managing agent suitable for projects such as
the Improvements to replace any manager whose contract is so terminated.
Section 6.14 Evidence of Completion of Work. No later than
December 31, 2001 (as such date may be extended with the reasonable approval of
Administrative Agent, taking into account good construction practice, project
economics and whether the postponed completion of the Work is likely to have a
material adverse effect on the Property), deliver to Administrative Agent
evidence that the Work (other than the items identified on EXHIBIT F as
"Isolation Dampers" (Item A1) and "Elevator Modernization" (Item A5)) has been
completed, lien free, such evidence to include (i) evidence that the Work has
been completed substantially in accordance with the plans and specifications
therefor (in the case of the building capital improvement program) and with the
requirements of all applicable Governmental Authorities (including, without
limitation, the issuance of any required certificates of occupancy or amendments
to certificates of occupancy), (ii) certifications from all tenants of portions
of the Improvements having rights of approval over all or any portion of the
Work that the Work has been satisfactorily completed for all purposes under the
leases of such tenants and (iii) with respect to the capital improvements
portion of the Work and any other portions thereof not relating to specific
leases, a certificate from the Engineering Consultant to the effect that all
such portions of the Work have been satisfactorily completed substantially in
accordance with the plans and specifications therefor.
Section 6.15 Balance Sheet of Borrower. Within thirty (30)
days following the Closing Date, deliver to Administrative Agent, which will
promptly deliver to each Lender, an audited balance sheet of Borrower as of the
Closing Date.
Section 6.16 Trust Fund. Receive and hold all fundings made
hereunder and the right to receive the same as a trust fund for the purpose of
paying only the "cost of improvement", as such quoted term is defined in the
Lien Law of the State of New York.
ARTICLE VII
SPE REPRESENTATIONS AND NEGATIVE COVENANTS
Section 7.01 Single Purpose Entity. Borrower hereby represents
and warrants that each of it and Member is a specially formed single purpose
entity and that neither it nor Member has, and covenants and agrees that so long
as the Note shall remain unpaid, or the Loan Commitments remain in effect, or
any other amount is owing by Borrower or Guarantor to Administrative Agent or
any Lender under any Loan Document or otherwise in respect of the Loans, neither
it nor its Member shall, do any or all of the following:
46
(1) engage in any business or activity other than, in the case
of Borrower, the ownership, operation and maintenance of the Property
and Improvements and activities incidental thereto or, in the case of
Member, its ownership of an interest in Borrower;
(2) acquire or own any material assets other than, in the case
of Borrower, the Property and Improvements and such incidental personal
property as may be necessary for the operation thereof or, in the case
of Member, its ownership interest in Borrower;
(3) merge into or consolidate with any Person or dissolve,
terminate or liquidate in whole or in part, transfer or otherwise
dispose of all or substantially all of its assets or change its legal
structure;
(4) fail to preserve its existence as an entity duly
organized, validly existing and in good standing under the Laws of the
jurisdiction of its formation, or amend or modify the provisions of its
organizational agreements in any way which would be contrary to or
conflict with the agreements made by it in this Section;
(5) own any subsidiary or make any investment in any Person;
(6) commingle its assets with the assets of any of its members
or of any other Person;
(7) create, incur or assume any Debt, secured or unsecured,
direct or contingent (including guaranteeing any obligation), other
than, in the case of Borrower only, (v) obligations in connection with
Borrower LCs; (w) unsecured loans by the direct or indirect constituent
members of Borrower to Borrower that are expressly subordinate to the
Loans; (x) the Loans; (y) the Subordinate Loan; or (z) Debt, in an
aggregate amount not to exceed $150,000, which is incurred in the
ordinary course of its business of owning and operating the Property,
provided such Debt is not evidenced by a note and is paid when due;
(8) become insolvent or generally fail to pay its debts and
liabilities from its assets as the same shall become due;
(9) fail to maintain its records, books of account and bank
accounts separate and apart from those of its members and any other
Person;
(10) enter into any contract or agreement with any Affiliate,
except upon commercially reasonable terms and conditions;
(11) partition, or seek to partition, the Property or
Improvements, or seek the dissolution or winding up, in whole or in
part, of Borrower;
(12) fail to correct any known misunderstandings regarding its
separate identity;
47
(13) hold itself out to be responsible for the debts or
obligations of another Person;
(14) make any loans or advances to any third party, including
(x) any member or principal of Borrower or Member or (y) any Affiliate;
(15) fail to file its own tax returns, if required, unless
part of the consolidated returns of another Person;
(16) agree to, enter into or consummate any transaction which
would render Borrower unable to make the representation contained in
Section 5.11;
(17) fail either to hold itself out to the public as a legal
entity separate and distinct from any other Person or to conduct its
business solely in its own name in order not (x) to mislead others as
to the identity with which such other party is transacting business or
(y) to suggest that Borrower or Member is responsible for the debts or
obligations of any third party (including any Affiliate);
(18) share any common logo with or hold itself out as or be
designated as a department or division of any other Person;
(19) without the unanimous consent of all of its members, file
or consent to the filing of a bankruptcy or insolvency petition or
otherwise institute insolvency proceedings with respect to itself or to
any other entity in which it has a direct or indirect legal or
beneficial ownership interest; or
(20) dissolve, liquidate, consolidate, merge or sell all or
substantially all of its assets or the assets of any other entity in
which it has a direct or indirect legal or beneficial ownership
interest or engage in any other business activity.
Section 7.02 Distributions. So long as the Note shall remain
unpaid or the Loan Commitments remain in effect, or any other amount is owing by
Borrower or Guarantor to Administrative Agent or any Lender under any Loan
Document or otherwise in respect of the Loans, Borrower shall not, during the
continuance of any Event of Default, suffer or permit any distributions or
payments of any kind to be made to its members.
Section 7.03 Interest Rate Hedging. Borrower shall not suffer
or permit, as of any date (a "Reference Date") during the initial term of the
Loans, any portion of the Principal Amount greater than or equal to $5,000,000
not to be covered by interest rate cap agreement(s), with counterparty(ies)
reasonably acceptable to Administrative Agent, in each case for a term expiring
no earlier than the second anniversary of the date hereof (in the case of any
Reference Date prior to such anniversary) or the initial Maturity Date (in the
case of any Reference Date after such second anniversary) and providing for a
capped rate of no greater than 9.25% per annum (the floating rate being, at
Borrower's option, the one (1)-, two (2)- or three (3)-month LIBOR Base Rate),
Borrower's rights under which cap agreement(s) shall have been assigned to
Administrative Agent pursuant to assignments substantially in the form of the
Cap Assignment and which assignments shall have been consented to by the
counterparty(ies).
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ARTICLE VIII
FINANCIAL COVENANTS
Section 8.01 Financial Covenants. So long as the Note shall
remain unpaid, or the Loan Commitments remain in effect, or any other amount is
owing by Borrower to Administrative Agent or any Lender under any Loan Document
or otherwise in respect of the Loans, Borrower shall not permit or suffer any or
all of the following:
(1) DSCR. DSCR to be less than 1.35 to 1.0 for any
Determination Date occurring during the second year of the term of the Loans,
and 1.45 to 1.0 for any Determination Date occurring thereafter.
(2) Refinance DSCR. Refinance DSCR to be less than 1.10 to 1.0
for any Determination Date occurring during the second year of the term of the
Loans, and 1.15 to 1.0 for any Determination Date occurring thereafter.
(3) Debt Yield. Debt Yield to be less than 11.0% for any
Determination Date occurring during the second year of the term of the Loans,
and 12.0% for any Determination Date occurring thereafter.
For purposes of compliance with the covenants set forth in
this Section, if Pro-Forma Net Operating Income is decreased as a result of
non-payment of rent under the Debevoise Lease or the ▇▇▇▇▇▇▇ Lease, such
decrease shall be offset by and to the extent of drawings by Borrower under the
Tenant LCs.
Section 8.02 Cash Flow Sweep.
(a) If, for any Determination Date with respect to which the
financial covenants set forth in Section 8.01 are to be complied with, Borrower
shall fail to meet any of such covenants, then, (i) within forty-five (45) days
after the end of the first calendar month immediately following the calendar
month in which such Determination Date occurs, Borrower shall, and hereby
covenants to, make a payment to Administrative Agent in an amount equal to Net
Cash Flow for such immediately following calendar month and (ii) within
forty-five (45) days after the end of each subsequent calendar month until
Administrative Agent is required to release sums as provided in paragraph (b)
below, Borrower shall, and hereby covenants (subject to paragraph (c) below) to,
make a payment to Administrative Agent in an amount equal to Net Cash Flow for
such subsequent calendar month, irrespective of whether the requisite DSCR,
Refinance DSCR and Debt Yield, as the case may be, were attained as of the end
of the quarter in which such subsequent calendar month falls. Notwithstanding
the foregoing, in the case of monthly payments of Net Cash Flow for any January,
such payments shall be due with the monthly payment for deposit in the Cash Flow
Collateral Account in respect of
49
February (i.e., on April 14). Said amounts shall be deposited by Administrative
Agent into interest-bearing, "blocked" cash collateral account no. 6005-524103
established with Administrative Agent (the "Cash Flow Collateral Account") to be
held by Administrative Agent for the benefit of Lenders as hereinafter provided.
Borrower hereby assigns the Cash Flow Collateral Account and all sums therein,
including interest thereon, to Administrative Agent, for the benefit of Lenders,
as security for the payment and performance of the Obligations and acknowledges
that Borrower shall have no right to such sums except to the extent specifically
provided for herein. Borrower further acknowledges that Administrative Agent
shall retain possession of all documents evidencing the Cash Flow Collateral
Account to perfect its security interest therein. Upon the occurrence of an
Event of Default, Administrative Agent may, at the option of the Required
Lenders, apply any and all sums in the Cash Flow Collateral Account (including
interest) to the immediate reduction of the Principal Amount and/or accrued and
unpaid interest and/or other sums payable hereunder or under the Note or other
Loan Documents, in such order and amounts as the Required Lenders shall elect.
Administrative Agent is hereby appointed Borrower's attorney-in-fact for the
purpose of withdrawing any and all sums from the Cash Flow Collateral Account.
Borrower agrees to execute such further documents (including security agreements
and UCC-1 financing statements) and do such further acts as Administrative Agent
may reasonably request to confirm or perfect the assignment and security
interest provided for in this Section.
(b) If, for two (2) consecutive Determination Dates following
an event giving rise to Borrower's obligation to make payments to Administrative
Agent for deposit into the Cash Flow Collateral Account as set forth in
paragraph (a) above, DSCR shall equal or exceed 1.35 to 1.0 or 1.45 to 1.0, as
the case may be, Refinance DSCR shall equal or exceed 1.10 to 1.0 or 1.15 to
1.0, as the case may be, and Debt Yield shall equal or exceed 11.0% or 12.0%, as
the case may be, all as required by Section 8.01, then, if there shall exist no
Default or Event of Default, on the forty-fifth (45th) day following such second
consecutive Determination Date (or the ninetieth (90th) day in the case of a
Determination Date falling on December 31), Administrative Agent shall release
all sums (including interest), if any, then on deposit in the Cash Flow
Collateral Account to Borrower and such sums shall be deemed free of the
assignment and security interest created pursuant to this Section, and
Administrative Agent shall execute such further documents (including UCC
termination statements) to confirm the foregoing as Borrower shall reasonably
request; provided, however, that if the requisite DSCR, Refinance DSCR and Debt
Yield specified in Section 8.01 shall not be attained for any succeeding
quarter, Borrower shall again be required to make payments for deposit in the
Cash Flow Collateral Account as provided in paragraph (a) above and the other
provisions of said paragraph (a) and this paragraph (b) shall be applicable.
(c) Notwithstanding the foregoing provisions of this Section,
if the DSCR, Refinance DSCR and/or Debt Yield required by Section 8.01 are not
met, Borrower may, in lieu of making the requisite payments of Net Cash Flow
provided for above, make, prior to the first payment date of such Net Cash Flow,
a partial prepayment of the Principal Amount in an amount such that the required
DSCR, Refinance DSCR and/or Debt Yield would have been met had the reduced
Principal Amount been the Principal Amount as of the end of the relevant
calendar quarter.
50
(d) Notwithstanding any provision of this Agreement or the
other Loan Documents to the contrary, the failure of Borrower to meet any of the
financial covenants set forth in Section 8.01 hereof shall not, in and of
itself, be a Default or Event of Default and Lenders' remedy shall be the
commencement of the Cash Flow Sweep as described in this Section 8.02.
(e) If (x) delinquent rents more than one hundred twenty (120)
days past due were excluded from Pro-Forma Net Operating Income for a particular
period of time in accordance with the definition of such term, (y) but for such
delinquency, Borrower would have complied with the covenants set forth in
Section 8.01 and (z) such delinquent rents are paid in a later period and the
applicable tenant is paying rent no more than one hundred twenty (120) days in
arrears under its lease, then Pro-Forma Net Operating Income for the earlier
period shall be recomputed by adding the formerly delinquent rent and, provided
there exists no Event of Default, within five (5) Business Days after submission
by Borrower of a revised certificate of the sort required by paragraph (4) of
Section 6.09, reasonably satisfactory to Administrative Agent, demonstrating
compliance with the covenants contained in Section 8.01 as of the relevant
earlier Determination Date, Administrative Agent shall release to Borrower from
the Cash Flow Collateral Account an amount equal to the amount of Net Cash Flow
deposited therein relating to the period from such earlier Determination Date
until the next later Determination Date, if any, as of which Borrower failed to
comply with the covenants set forth in Section 8.01. If there is no such later
Determination Date then all sums in the Cash Flow Collateral Account shall be
released to Borrower.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01 Events of Default. Any of the following events
shall be an "Event of Default":
(1) If Borrower shall: fail to pay the principal of any Note
as and when due; or fail to pay interest accruing on any Note as and
when due, and such failure to pay shall continue unremedied for two (2)
Business Days after the due date of such interest; or fail to pay any
fee or any other amount due under this Agreement, any other Loan
Document as and when due and such failure to pay shall continue
unremedied for seven (7) Business Days after notice by Administrative
Agent of such failure to pay; or
(2) If any representation or warranty made by Borrower in this
Agreement or in any other Loan Document or which is contained in any
certificate, document, opinion, financial or other statement furnished
at any time under or in connection with a Loan Document shall prove to
have been incorrect in any material respect on or as of the date made;
or
51
(3) If Borrower shall fail (i) to perform or observe any term,
covenant or agreement contained in Article VII or Section 8.02,
provided that, in the case of a default under Section 7.03 resulting
from the making of a Funding of the Debt Service Allocation,
Administrative Agent shall have given notice to Borrower in accordance
with Section 2.15 (or shall have otherwise given notice of such failure
and Borrower shall fail to cure such failure within five (5) Business
Days after such notice); or (ii) to perform or observe any term,
covenant or agreement contained in this Agreement (other than
obligations specifically referred to elsewhere in this Section 9.01) or
any other Loan Document, or any other document executed by Borrower and
delivered to Administrative Agent or Lenders in connection with the
transactions contemplated hereby and such failure under this clause
(ii) shall remain unremedied for thirty (30) consecutive days after
notice thereof to Borrower (or such shorter cure period as may be
expressly prescribed in the applicable document); provided, however,
that if any such default under clause (ii) above cannot by its nature
be cured within such thirty (30) day, or shorter, as the case may be,
grace period and so long as Borrower shall have commenced cure within
such thirty (30) day, or shorter, as the case may be, grace period and
shall, at all times thereafter, diligently prosecute the same to
completion, Borrower shall have an additional period, not to exceed one
hundred twenty (120) days, to cure such default; in no event, however,
is the foregoing intended to effect an extension of the Maturity Date;
or
(4) If Reckson shall fail (i) to pay any of the Reckson
Indebtedness upon the maturity thereof (whether as scheduled, by
acceleration or otherwise); or (ii) to pay, perform or observe any
term, covenant or condition under any agreement or instrument relating
to any such Reckson Indebtedness, when required to be paid, performed
or observed, if the effect of such failure to pay, perform or observe
is to accelerate, or to permit the acceleration of, the maturity of
such Reckson Indebtedness, or other circumstances occur that would
permit or result in the acceleration of the Reckson Indebtedness (other
than in cases where meaningful discussions likely to result in (A) a
waiver or cure of the failure to pay, perform or observe or (B)
otherwise averting such acceleration are in progress between Reckson
and the obligee(s) of such Reckson Indebtedness); provided, however,
that the events described in clauses (i) and (ii) above shall no longer
constitute an Event of Default hereunder following such time as (a) the
Guaranty of Completion has terminated as provided therein, (b) the
amount of the Work remaining to be paid or performed is $2,500,000 or
less or (c) the only Work remaining to be paid or performed is, in the
judgment of the Required Lenders, adequately covered by a Borrower LC
and such Borrower LC is available to be drawn upon for such remaining
Work;
(5) If Borrower or Guarantor shall (i) generally not, or be
unable to, or shall admit in writing its inability to, pay its debts as
such debts become due; or (ii) make an assignment for the benefit of
creditors, petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it, all or any portion of the
Property or a substantial part of its other assets; or (iii) commence
any proceeding under any bankruptcy, reorganization, arrangement,
readjustment
52
of debt, dissolution or liquidation Law of any jurisdiction, whether
now or hereafter in effect; or (iv) have had any such petition or
application filed or any such proceeding shall have been commenced,
against it or all or any portion of the Property, in which an
adjudication or appointment is made or order for relief is entered, or
which petition, application or proceeding remains undismissed or
unstayed for a period of ninety (90) days or more; or (v) be the
subject of any proceeding under which all or any portion of the
Property or all or a substantial part of its other assets may be
subject to seizure, forfeiture or divestiture; or (vi) by any act or
omission indicate its consent to, approval of or acquiescence in any
such petition, application or proceeding or order for relief or the
appointment of a custodian, receiver or trustee for all or any portion
of the Property or all or any substantial part of its other property;
or (vii) suffer any such custodianship, receivership or trusteeship
for all or any portion of the Property or all or any substantial part
of its other property, to continue undischarged for a period of ninety
(90) days or more; or
(6) If one or more judgments, decrees or orders for the
payment of money, in excess of $1,000,000 in the aggregate in the case
of Borrower, $10,000,000 in the aggregate in the case of Reckson and
$10,000,000 in the aggregate in the case of Metropolitan, shall be
rendered against Borrower, Reckson or Metropolitan, as the case may be,
and any such judgments, decrees or orders shall continue unsatisfied
and in effect for a period of sixty (60) consecutive days without being
vacated, discharged, satisfied or stayed or bonded pending appeal; or
(7) If any of the following events shall occur or exist with
respect to Borrower or any ERISA Affiliate: (i) any Prohibited
Transaction involving any Plan; (ii) any Reportable Event with respect
to any Plan; (iii) the filing under Section 4041 of ERISA of a notice
of intent to terminate any Plan or the termination of any Plan; (iv)
any event or circumstance which would constitute grounds for the
termination of, or for the appointment of a trustee to administer, any
Plan under Section 4042 of ERISA, or the institution by the PBGC of
proceedings for any such termination or appointment under Section 4042
of ERISA; or (v) complete or partial withdrawal under Section 4201 or
4204 of ERISA from a Multiemployer Plan or the reorganization,
insolvency, or termination of any Multiemployer Plan; and in each case
above, if such event or conditions, if any, would be likely to subject
Borrower or any ERISA Affiliate to any tax, penalty, or other liability
to a Plan, Multiemployer Plan, the PBGC or otherwise (or any
combination thereof) that would be likely to result in a Material
Adverse Change; or
(8) If the Mortgage shall at any time and for any reason cease
to create a valid and perfected first priority Lien on the Mortgaged
Property purported to be subject thereto or to be in full force and
effect; or shall be declared null and void; or the validity or
enforceability thereof shall be contested by Borrower; or
53
(9) If an "Event of Default" shall occur under the Mortgage
(as such quoted term is defined therein); or
(10) If, at any time, any part of the funds to be used by
Borrower or Guarantor in satisfaction of their respective obligations
under this Agreement and/or the other Loan Documents, or any other
assets of Borrower or Guarantor, constitute "plan assets" of any
"employee benefit plan" within the meaning of ERISA or of any "plan"
within the meaning of Section 4975(e)(1) of the Code, as interpreted by
the Internal Revenue Service and the U.S. Department of Labor in rules,
regulations, releases, bulletins or as interpreted under applicable
case law.
Section 9.02 Remedies. If any Event of Default shall occur and
be continuing, Administrative Agent shall, upon request of the Required Lenders,
(i) declare the outstanding balance of the Note, all interest thereon, and all
other amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon such balance, all such interest, and all
such amounts due under this Agreement and under the other Loan Documents shall
become and be forthwith due and payable, without presentment, demand, protest,
or further notice of any kind, all of which are hereby expressly waived by
Borrower and/or (ii) terminate the unfunded Loan Commitments and/or (iii)
exercise any remedies provided in any of the Loan Documents or by Law.
ARTICLE X
ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS
Section 10.01 Appointment, Powers and Immunities of
Administrative Agent. Each Lender hereby irrevocably appoints and authorizes
Administrative Agent to act as its agent hereunder and under any other Loan
Document and the Subordination Agreement with such powers as are specifically
delegated to Administrative Agent by the terms of this Agreement and any other
Loan Document and the Subordination Agreement, together with such other powers
as are reasonably incidental thereto. Administrative Agent shall have no duties
or responsibilities except those expressly set forth in this Agreement and any
other Loan Document and the Subordination Agreement or required by Law, and
shall not by reason of this Agreement be a fiduciary or trustee for any Lender
except to the extent that Administrative Agent acts as an agent with respect to
the receipt or payment of funds (nor shall Administrative Agent have any
fiduciary duty to Borrower nor shall any Lender have any fiduciary duty to
Borrower or to any other Lender). No implied covenants, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against Administrative Agent. Neither Administrative Agent nor
any of its directors, officers, employees, agents, attorneys-in-fact or
Affiliates shall be responsible to any Lender for any recitals, statements,
representations or warranties made by Borrower or any officer, partner or
official of Borrower or any other Person contained in this Agreement or any
other Loan Document, or in any certificate or other document or instrument
referred to or provided for in, or received by any of them under, this Agreement
or any other Loan
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Document, or for the value, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
any other document or instrument referred to or provided for herein or therein,
for the perfection or priority of any Lien securing the Obligations or for any
failure by Borrower or Guarantor to perform any of its obligations hereunder or
thereunder. Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible, except as to money or securities received by it or its
authorized agents, for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Neither Administrative
Agent nor any of its directors, officers, employees, agents, attorneys-in-fact
or Affiliates shall be liable or responsible for any action taken or omitted to
be taken by it or them hereunder or under any other Loan Document or the
Subordination Agreement or in connection herewith or therewith, except for its
or their own gross negligence or willful misconduct.
Section 10.02 Reliance by Administrative Agent. Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telex, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by
Administrative Agent. Administrative Agent may deem and treat each Lender as the
holder of the Loan made by it for all purposes hereof and shall not be required
to deal with any Person who has acquired a Participation in any Loan or
Participation from a Lender. As to any matters not expressly provided for by
this Agreement or any other Loan Document or the Subordination Agreement,
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by the
Required Lenders, and such instructions of the Required Lenders and any action
taken or failure to act pursuant thereto shall be binding on all Lenders and any
other holder of all or any portion of any Loan or Participation.
Section 10.03 Defaults. Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default or Event of Default
unless Administrative Agent has actual knowledge thereof or has received notice
from a Lender or Borrower specifying such Default or Event of Default and
stating that such notice is a "Notice of Default." In the event that
Administrative Agent has such actual knowledge or receives such a notice of the
occurrence of a Default or Event of Default, Administrative Agent shall give
prompt notice thereof to Lenders. Administrative Agent shall promptly send to
each Lender a copy of any notice of Default or Event of Default that
Administrative Agent sends to Borrower or Guarantor. Administrative Agent,
following consultation with Lenders, shall (subject to Section 10.07) take such
action with respect to such Default or Event of Default which is continuing
(including actions with respect to the disposition or operation of the
collateral for the Loans) as shall be directed by the Required Lenders;
provided, however, that, unless and until Administrative Agent shall have
received such directions, Administrative Agent may take such action, or refrain
from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interest of Lenders. In no event shall
Administrative Agent be required to take any such action which it determines to
be contrary to the Loan
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Documents or the Subordination Agreement or to Law. Each Lender acknowledges and
agrees that no individual Lender may separately enforce or exercise any of the
provisions of any of the Loan Documents (including, without limitation, the
Note) or the Subordination Agreement other than through Administrative Agent.
Section 10.04 Rights of Administrative Agent as a Lender. With
respect to its Loan Commitment (if any) and the Loan (if any) provided by it,
Administrative Agent in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as Administrative Agent, and the term "Lender" or
"Lenders" shall include Administrative Agent in its capacity as a Lender.
Administrative Agent and its Affiliates may (without having to account therefor
to any Lender) accept deposits from, lend money to (on a secured or unsecured
basis), and generally engage in any kind of banking, trust or other business
with Borrower (and any Affiliates of Borrower) as if it were not acting as
Administrative Agent.
Section 10.05 Sharing of Costs by Lenders; Indemnification of
Administrative Agent. Each Lender agrees to pay its ratable share, based on the
respective outstanding principal balances under its Loan and the Loans of the
other Lenders, of any expenses incurred (and not paid or reimbursed by Borrower
after demand for payment is made by Administrative Agent) by or on behalf of
Lenders in connection with any Default or Event of Default, including, without
limitation, costs of enforcement of the Loan Documents or the Subordination
Agreement and any advances to pay taxes or insurance premiums or otherwise to
preserve the Lien of the Mortgage or to preserve or protect the Mortgaged
Property or any part thereof. In the event a Lender fails to pay its share of
expenses as aforesaid, and all or a portion of such unpaid amount is paid by
Administrative Agent and/or one or more of the other Lenders, then the
defaulting Lender shall reimburse Administrative Agent and/or the other
Lender(s) for the portion of such unpaid amount paid by it or them, as the case
may be, together with interest thereon at the Base Rate from the date of payment
by Administrative Agent and/or the other Lender(s). In addition, each Lender
agrees to indemnify Administrative Agent (to the extent not reimbursed under
Section 12.04 or under other applicable provisions of any Loan Document, but
without limiting the obligations of Borrower under Section 12.04 or such other
provisions), for its ratable share, based upon the outstanding principal
balances under its Loan and the Loans of the other Lenders, of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against Administrative Agent in any way
relating to or arising out of this Agreement, any other Loan Document or the
Subordination Agreement or any other documents contemplated by or referred to
herein or the transactions contemplated hereby or thereby (including, without
limitation, the costs and expenses which Borrower is obligated to pay under
Section 12.04 or under any other applicable provisions of any other Loan
Document) or the enforcement of any of the terms hereof or thereof or of any
such other documents or instruments; provided, however, that no Lender shall be
liable for (i) any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified or (ii) any loss
of principal or interest with respect to Administrative Agent's Loan, if any.
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Section 10.06 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender agrees that it has, independently and without reliance on
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own analysis of the
collateral for the Loans and of the credit of Borrower and Guarantor, and its
own decision to enter into this Agreement and that it will, independently and
without reliance upon Administrative 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 analysis and decisions in taking or not taking action
under this Agreement or any other Loan Document or the Subordination Agreement.
Except for notices, reports and other documents and information expressly
required to be furnished to Lenders by Administrative Agent hereunder,
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of Borrower or Guarantor (or any Affiliate of Borrower or
Guarantor) which may come into the possession of Administrative Agent or any of
its Affiliates. Administrative Agent shall not be required to file this
Agreement, any other Loan Document or any document or instrument referred to
herein or therein, for record or give notice of this Agreement, any other Loan
Document or any document or instrument referred to herein or therein, to anyone.
Section 10.07 Failure of Administrative Agent to Act. Except
for action expressly required of Administrative Agent hereunder, Administrative
Agent shall in all cases be fully justified in failing or refusing to act
hereunder unless it shall have received further assurances (which may include
cash collateral) of the indemnification obligations of Lenders under Section
10.05 in respect of any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. If any indemnity
furnished to Administrative Agent for any purpose shall, in the opinion of
Administrative Agent, be insufficient or become impaired, Administrative Agent
may call for an additional indemnity and cease, or not commence, the action
indemnified against until such additional indemnity is furnished.
Section 10.08 Resignation or Removal of Administrative Agent.
Administrative Agent hereby agrees not to unilaterally resign except in the
event it becomes an Affected Lender and is removed or replaced as a Lender
pursuant to Section 3.07, in which event it shall have the right to resign;
provided, however, that Administrative Agent may resign if a successor
Administrative Agent satisfactory to the Required Lenders and (so long as there
exists no Event of Default) reasonably satisfactory to Borrower is appointed and
accepts such appointment. Administrative Agent may be removed at any time with
cause by the Required Lenders, provided that Borrower and the other Lenders
shall be promptly notified thereof. Upon any such resignation or removal of
Administrative Agent, the Required Lenders shall have the right to appoint a
successor Administrative Agent which successor Administrative Agent, so long as
it is reasonably acceptable to the Required Lenders, shall be that Lender then
having the greatest Loan Commitment. If no successor Administrative Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within twenty (20) days after the Required Lenders' removal of the
retiring Administrative Agent, then the retiring Administrative Agent may, on
behalf of Lenders,
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appoint a successor Administrative Agent, which shall be one of Lenders. The
Required Lenders or the retiring Administrative Agent, as the case may be, shall
upon the appointment of a successor Administrative Agent promptly so notify
Borrower and the other Lenders. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any retiring Administrative Agent's removal
hereunder as Administrative Agent, the provisions of this Article X shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent. The periodic
administration fee paid to the retiring Administrative Agent shall be deemed
earned by such retiring Administrative Agent only to the extent of the actual
days elapsed in the period to which such administration fee relates, and upon
appointment of a successor Administrative Agent, the retiring Administrative
Agent shall pay to such successor a pro-rata portion of such administration fee
based upon the number of days remaining in such period. Notwithstanding the
foregoing, Borrower shall incur no cost or expense in connection with the
removal and/or substitution of an Administrative Agent.
Section 10.09 Amendments Concerning Agency Function.
Notwithstanding anything to the contrary contained herein, Administrative Agent
shall not be bound by any waiver, amendment, supplement or modification hereof
or of any other Loan Document or the Subordination Agreement which affects its
duties, rights, and/or functions hereunder or thereunder unless it shall have
given its prior written consent thereto.
Section 10.10 Liability of Administrative Agent.
Administrative Agent shall not have any liabilities or responsibilities to
Borrower on account of the failure of any Lender to perform its obligations
hereunder or to any Lender on account of the failure of Borrower to perform its
obligations hereunder or under any other Loan Document.
Section 10.11 Transfer of Agency Function. Without the consent
of Borrower or any Lender, Administrative Agent may at any time or from time to
time transfer its functions as Administrative Agent hereunder to any of its
offices wherever located in the United States, provided that Administrative
Agent shall promptly notify Borrower and Lenders thereof.
Section 10.12 Intentionally Omitted.
Section 10.13 Withholding Taxes. Each Lender represents that
it is entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to Administrative Agent such forms,
certifications, statements and other documents as Administrative Agent may
request from time to time to evidence such Lender's exemption from the
withholding of any tax imposed by any jurisdiction or to enable Administrative
Agent or Borrower to comply with any applicable Laws relating thereto. Without
limiting the effect of the foregoing, if any Lender is not created or
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organized under the Laws of the United States or any state thereof, such Lender
will furnish to Administrative Agent a U.S. Internal Revenue Service Form W-8ECI
in respect of all payments to be made to such Lender by Borrower or
Administrative Agent under this Agreement or any other Loan Document or a U.S.
Internal Revenue Service Form W-8BEN establishing such Lender's complete
exemption from United States withholding tax in respect of payments to be made
to such Lender by Borrower or Administrative Agent under this Agreement or any
other Loan Document, or such other forms, certifications, statements or
documents, duly executed and completed by such Lender as evidence of such
Lender's exemption from the withholding of U.S. tax with respect thereto.
Administrative Agent shall not be obligated to make any payments hereunder to
such Lender in respect of any Loan or Participation or such Lender's Loan
Commitment or obligation to purchase Participations until such Lender shall have
furnished to Administrative Agent the requested form, certification, statement
or document.
Section 10.14 Pro Rata Treatment. Except to the extent
otherwise provided, fundings of proceeds of the Loans shall be made by Lenders
ratably according to the amounts of their respective Loan Commitments.
Section 10.15 Sharing of Payments Among Lenders. If a Lender
shall obtain payment of any principal of or interest on any Loan made by it
through the exercise of any right of setoff, banker's lien, counterclaim, or by
any other means (including direct payment), and such payment results in such
Lender receiving a greater payment than it would have been entitled to had such
payment been paid directly to Administrative Agent for disbursement to Lenders,
then such Lender shall promptly purchase for cash from the other Lenders
Participations in the Loans made by the other Lenders in such amounts, and make
such other adjustments from time to time as shall be equitable to the end that
all Lenders shall share ratably the benefit of such payment. To such end,
Lenders shall make appropriate adjustments among themselves (by the resale of
Participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
Section 10.16 Possession of Documents. Administrative Agent
shall hold all the Loan Documents and related documents in its possession and
maintain separate records and accounts with respect thereto, and shall permit
Lenders and their representatives access at all reasonable times to inspect such
Loan Documents, related documents, records and accounts.
Section 10.17 Minimum Commitment by ▇▇▇▇▇▇▇ ▇▇▇▇▇. Subsequent
to the Closing Date, ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby agrees to maintain a Loan Commitment
in an amount no less than $20,000,000, and further agrees to hold and not to
participate or assign any of such amount other than an assignment to a Federal
Reserve Bank or to the Parent or a majority-owned subsidiary of ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 10.18 Effect of a Lender's Failure to Make a Funding.
In the event any Lender fails for any reason to fund the portion it is required
to fund of any funding of Loan proceeds by 3:00 p.m. (New York time) on the
second Business Day after the date established by Administrative Agent as the
date such funding is to be made, such Lender shall be a "Delinquent Lender" for
all purposes hereunder until and unless such delinquency is cured in accordance
with the terms of and by the time permitted under Section 10.19, and the
following provisions shall apply:
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(1) Administrative Agent shall notify (such notice being
referred to as the "Delinquency Notice") each Lender and Borrower of
any Lender's failure to fund. Each Non-Delinquent Lender shall have the
right, but in no event or under any circumstance the obligation, to
fund such Delinquent Lender's portion of such funding, provided that,
within ten (10) days of the date of the Delinquency Notice (the
"Election Period"), such Non-Delinquent Lender or Lenders (each such
Lender, an "Electing Lender") irrevocably commit(s) by notice in
writing (an "Election Notice") to Administrative Agent, the other
Lenders and Borrower to fund the Delinquent Lender's portion of the
funding that is the subject of the delinquency (the "Delinquency
Amount"). If Administrative Agent receives more than one Election
Notice within the Election Period, then the Electing Lenders sending
such notices shall be deemed to have committed to fund ratable shares
of the Delinquency Amount based upon the amounts of their respective
Loan Commitments. If there are one or more Electing Lenders and the
Delinquent Lender fails to cure during the Election Period as provided
in Section 10.19, then upon the expiration of the Election Period, each
Electing Lender's Loan Commitment shall be automatically increased by
the Delinquency Amount (if there is only one Electing Lender) or such
Electing Lender's ratable share, determined as aforesaid, of the
Delinquency Amount (if there are two (2) or more Electing Lenders), and
the Delinquent Lender's Loan Commitment shall automatically be reduced
by the Delinquency Amount. Administrative Agent shall thereupon notify
Borrower and each Lender of (i) the adjusted amounts of the Loan
Commitments and (ii) the date the Delinquency Amount is to be remitted
by the Electing Lenders to Administrative Agent (which date shall be no
sooner than three (3) Business Days after such notice). Administrative
Agent shall fund to Borrower the Delinquency Amount no later than one
(1) Business Day after Administrative Agent receives the same from the
Electing Lender(s).
(2) Borrower, Administrative Agent and Lenders shall execute
such modifications to the Loan Documents as shall, in the reasonable
judgment of Administrative Agent, be necessary or desirable in
connection with the adjustment of the amounts of Loan Commitments in
accordance with the foregoing provisions of this Section.
(3) In the event that no Lender elects to commit to fund the
Delinquency Amount within the Election Period as provided in paragraph
(1) of this Section, Administrative Agent shall, upon the expiration of
the Election Period, so notify Borrower and each Lender.
(4) Subject to a Delinquent Lender's right to cure as provided
in Section 10.19, but notwithstanding anything else to the contrary
contained in this Agreement, the Delinquent Lender's interest in, and
any and all amounts due to a
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Delinquent Lender under, the Loan Documents (including, without
limitation, all principal, interest, fees and expenses) shall be
subordinate in lien priority and to the repayment of all amounts
(including, without limitation, interest) then or thereafter due or to
become due to the Non-Delinquent Lenders under the Loan Documents
(including future fundings), and the Delinquent Lender thereafter shall
have no right to participate in any discussions among and/or decisions
by Lenders hereunder and/or under the other Loan Documents. Further,
subject to Section 10.19, any Delinquent Lender shall be bound by any
amendment to, or waiver of, any provision of, or any action taken or
omitted to be taken by Administrative Agent and/or the Non-Delinquent
Lenders under, any Loan Document which is made subsequent to the
Delinquent Lender's becoming a Delinquent Lender.
(5) If a Delinquent Lender's obligations with respect to the
Delinquency Amount are assumed by one or more Electing Lenders, then,
notwithstanding anything to the contrary contained in this Agreement
(including Sections 2.01 or 10.14), subsequent fundings of the Loans
shall be made by Lenders in proportion to the remaining available
amounts of their respective Loan Commitments.
Section 10.19 Cure by Delinquent Lender. A Delinquent Lender
may cure a delinquency arising out of its failure to fund its required portion
of any funding if, within the Election Period, it remits to Administrative Agent
its required portion of such funding, in which event Administrative Agent shall
so notify Borrower and the Non-Delinquent Lenders of its receipt of such funds.
Administrative Agent shall, within one (1) Business Day of its receipt thereof
from the Delinquent Lender, fund the Delinquency Amount to Borrower. In the
event any Delinquent Lender cures a delinquency prior to the expiration of the
Election Period (or thereafter with the consent of all of the Non-Delinquent
Lenders), such Delinquent Lender nonetheless shall be bound by any amendment to
or waiver of any provision of, or any action taken or omitted to be taken by
Administrative Agent and/or the Non-Delinquent Lenders under, any Loan Document
which is made subsequent to that Lender's becoming a Delinquent Lender and prior
to its curing the delinquency as provided in this Section; provided that such
amendment or waiver of action was taken in accordance with the provisions of
this Agreement. A Delinquent Lender shall have absolutely no right to cure any
delinquency after the expiration of the Election Period unless all
Non-Delinquent Lenders, in their sole discretion, elect to permit such cure.
Section 10.20 Delinquent Lender Not Excused. Nothing contained
in Sections 10.18 or 10.19 shall release or in any way limit a Delinquent
Lender's obligations as a Lender hereunder and/or under any other of the Loan
Documents. Further, a Delinquent Lender shall indemnify and hold harmless
Administrative Agent and each of the Non-Delinquent Lenders from any claim,
loss, or costs incurred by Administrative Agent and/or the Non-Delinquent
Lenders as a result of a Delinquent Lender's failure to comply with the
requirements of this Agreement, including, without limitation, any and all
additional losses, damages, costs and expenses (including, without limitation,
attorneys' fees) incurred by Administrative Agent and any Lender as a result
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of and/or in connection with (i) a Non-Delinquent Lender's acting as an Electing
Lender, (ii) any enforcement action brought by Administrative Agent against a
Delinquent Lender and (iii) any action brought against Administrative Agent
and/or Lenders. The indemnification provided above shall survive any termination
of this Agreement.
Section 10.21 Notices Regarding Delinquent Lender. Notices by
Administrative Agent or Lenders pursuant to Sections 10.18 or 10.19 may be by
telephone or by facsimile.
ARTICLE XI
NATURE OF OBLIGATIONS
Section 11.01 Absolute and Unconditional Obligations. Borrower
acknowledges and agrees that its obligations and liabilities under this
Agreement and under the other Loan Documents shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of any of the
Obligations, any Loan Documents or any agreement or instrument relating thereto
executed by Borrower and/or Guarantor, (ii) any change in the time, manner or
place of payment of, or in any other term in respect of, all or any of the
Obligations, or any other amendment or waiver of or consent to any departure
from any Loan Documents or any other documents or instruments executed in
connection with or related to the Obligations or (iii) any exchange or release
of any collateral, if any, or of any other Person from all or any of the
Obligations.
The Obligations shall not be conditioned or contingent upon
the pursuit by any Lender or any other Person at any time of any right or remedy
against Borrower or any other Person which may be or become liable in respect of
all or any part of the Obligations or against any collateral or security or
guarantee therefor or right of setoff with respect thereto.
Section 11.02 Non-Recourse. Notwithstanding anything to the
contrary contained herein, in any of the other Loan Documents (other than the
Guaranty of Completion, the Guaranty and Indemnity Agreement and the
Environmental Indemnity), or in any other instruments, certificates, documents
or agreements executed in connection with the Loans (all of the foregoing, other
than the Guaranty of Completion, the Guaranty and Indemnity Agreement and the
Environmental Indemnity, for purposes of this Section, hereinafter referred to,
individually and collectively, as the "Relevant Documents"), no recourse under
or upon any of the Obligations shall be had against Borrower or any of its
constituent members (said constituent members, for purposes of this Section,
hereinafter referred to as the "Borrower Members") except to the extent of the
Mortgaged Property and/or any other security now or hereafter given for the
Loans, and each Lender expressly waives and releases, on behalf of itself and
its successors and assigns, all right to assert any liability whatsoever under
or with respect to the Relevant Documents against, or to satisfy any claim or
obligation arising thereunder against, Borrower or any of the Borrower Members
or out of any other assets of Borrower or of the Borrower Members, provided,
however, that nothing in this Section
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shall be deemed to (i) constitute a waiver of any obligation evidenced or
secured by, or contained in, the Relevant Documents or affect in any way the
validity or enforceability of the Relevant Documents, (ii) limit the right of
Administrative Agent and/or Lenders to proceed against or realize upon all or
part of the Mortgaged Property or any other collateral now or hereafter given
for the Loans or to name Borrower (or, to the extent that the same are required
by applicable Law or are determined by a court to be necessary parties in
connection with an action or suit against Borrower, all or part of the Mortgaged
Property or any other collateral now or hereafter given for the Loans, any of
the Borrower Members) as a party defendant in, and to enforce against all or
part of the Mortgaged Property or any other collateral now or hereafter given
for the Loans any judgment obtained by Administrative Agent and/or Lenders with
respect to, any action or suit under the Relevant Documents so long as no
judgment shall be taken (except to the extent taking a judgment is required by
applicable Law or determined by a court to be necessary to preserve
Administrative Agent's and/or Lenders' rights against all or part of the
Mortgaged Property or any other collateral now or hereafter given for the Loans
or Borrower, but not otherwise) or shall be enforced against Borrower or the
Borrower Members or their assets, (iii) affect in any way the validity or
enforceability of the Guaranty of Completion, the Guaranty and Indemnity
Agreement or the Environmental Indemnity or any other guaranty or indemnity
given to Administrative Agent or Lenders in connection with the Loans or (iv)
constitute a waiver by Administrative Agent or any Lender of any rights to
reimbursement for losses, claims, liabilities, costs or expenses, or any other
remedy at law or equity against Borrower, the Borrower Members or any of their
respective Affiliates by reason of (A) fraudulent actions or omissions, (B)
intentional and material misrepresentations, (C) misappropriation,
misapplication or conversion of any insurance proceeds, condemnation awards,
tenant security deposits or proceeds of the Tenant LCs, or of any rent or other
funds in respect of the Mortgaged Property or any other collateral now or
hereafter given for the Loans, (D) Liens voluntarily placed on all or any
portion of the Mortgaged Property or other collateral now or hereafter given for
the Loans, other than those expressly permitted by the Loan Documents, (E)
physical waste of the Property or Improvements (for example, the deliberate or
voluntary removal, disposal, destruction or injury to all or any portion
thereof) or (F) unless Borrower is acting in good faith, the impeding of
Lenders' or Administrative Agent's exercise of remedies under the Loan Documents
or otherwise in connection with the Loans.
ARTICLE XII
MISCELLANEOUS
Section 12.01 Binding Effect of Request for Funding. Borrower
agrees that, by its acceptance of any funding of proceeds of the Loans under
this Agreement, it shall be bound in all respects by the request for funding
submitted on its behalf in connection therewith with the same force and effect
as if Borrower had itself executed and submitted the request for funding and
whether or not the request for funding is executed and/or submitted by an
authorized person.
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Section 12.02 Amendments and Waivers. No amendment or material
waiver of any provision of this Agreement or any other Loan Document or the
Subordination Agreement nor consent to any material departure by Borrower or
Guarantor therefrom shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders and, solely for purposes of its
acknowledgment thereof, Administrative Agent, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all Lenders do any of the following: (i) reduce
the principal of, or interest on, the Note or any fees due hereunder or any
other amount due hereunder or under any other Loan Document; (ii) postpone any
date (including, without limitation, the Maturity Date) fixed for any payment of
principal of, or interest on, the Note or any fees due hereunder or under any
other Loan Document (other than as provided in Section 2.16); (iii) change the
definition of Required Lenders; (iv) amend this Section or any other provision
requiring the consent of all Lenders; (v) waive any default under paragraph (5)
of Section 9.01; (vi) release, in whole or in part, any Guarantor other than in
accordance with the Loan Documents; (vii) release any material portion of the
Mortgaged Property or of any other collateral now or hereafter given for the
Loans other than in accordance with the Loan Documents; or (viii) increase the
Total Loan Commitment. Any funding of proceeds of the Loans made prior to or
without the fulfillment by Borrower of all of the conditions precedent thereto,
whether or not known to Administrative Agent and Lenders, shall not constitute a
waiver of the requirement that all conditions, including the non-performed
conditions, shall be required with respect to all future fundings, if any. No
failure on the part of Administrative Agent or any Lender to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof or
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by Law.
All communications from Administrative Agent to Lenders
requesting Lenders' determination, consent or approval (x) shall be given in the
form of a written notice to each Lender, (y) shall be accompanied by or include
a description or copy of the matter or thing as to which such determination,
approval, consent or disapproval is requested and (z) shall include
Administrative Agent's recommended course of action or determination in respect
thereof. If a Lender does not respond to such request within five (5) Business
Days after receipt of Administrative Agent's request, then Administrative Agent
may send a second request to such Lender. Unless such Lender shall give written
notice to Administrative Agent that it objects to the recommendation or
determination of Administrative Agent (together with a written explanation of
the reasons behind such objection) within five (5) Business Days (or two (2)
Business Days, in the case of any decision to accelerate or stop acceleration of
the Loans) after receipt of such second request, such Lender shall be deemed to
have approved or consented to Administrative Agent's recommendation or
determination.
Section 12.03 Usury. Anything herein to the contrary
notwithstanding, the obligations of Borrower under this Agreement and the Note
shall be subject to the limitation that payments of interest shall not be
required to the extent that receipt thereof would be contrary to provisions of
Law applicable to a Lender limiting rates of interest which may be charged or
collected by such Lender.
64
Section 12.04 Expenses; Indemnification. Borrower covenants
and agrees to pay all costs, expenses and charges (including, without
limitation, all reasonable fees and expenses of counsel, engineers, appraisers
and consultants) incurred by Administrative Agent or any Lender in connection
with (i) the preparation for and consummation of the transactions contemplated
hereby or for the performance hereof and of the other Loan Documents, and for
any services which may be required in addition to those normally and reasonably
contemplated hereby and (ii) the enforcement hereof or of any or all of the
other Loan Documents; provided, however, that Borrower shall not be responsible
for (x) the fees and expenses of legal counsel for any Lender other ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ incurred in connection with said counsel's review of this Agreement and
the other Loan Documents prior to execution and (y) costs, expenses and charges
incurred by Administrative Agent and Lenders in connection with the
administration or syndication of the Loan (other than the administration fee
required by Section 2.07(a), the fees required by the Supplemental Letter
agreement and the reasonable fees and expenses of Administrative Agent's counsel
and the Engineering Consultant). In connection with the foregoing, Lenders
agree, to the extent practicable, to appoint a single counsel, selected by
Administrative Agent, to act on behalf of all Lenders in connection with the
enforcement of the Loan Documents. If Borrower fails to pay promptly any costs,
charges or expense required to be paid by it as aforesaid, and Administrative
Agent or any Lender pays such costs, charges or expenses, Borrower shall
reimburse Administrative Agent or such Lender, as appropriate, on demand for the
amounts so paid, together with interest thereon at the Default Rate for Base
Rate Loans from the date of demand. Borrower agrees to indemnify Administrative
Agent and each Lender and their respective directors, officers, employees and
agents from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages or expenses incurred by any of them arising out of
or by reason of (A) any claims by brokers due to acts or omissions by Borrower
or (B) any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to any
actual or proposed use by Borrower of the proceeds of the Loans, including
without limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
The obligations of Borrower under this Section and under
Article III shall survive the repayment of all amounts due under or in
connection with any of the Loan Documents and the termination of the Loans.
Section 12.05 Assignment; Participation. This Agreement shall
be binding upon, and shall inure to the benefit of, Borrower, Administrative
Agent, Lenders and their respective successors and permitted assigns. Borrower
may not assign or transfer its rights or obligations hereunder.
65
Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Loan
("Participations"). In the event of any such grant by a Lender of a
Participation to a Participant, whether or not Borrower or Administrative Agent
was given notice, such Lender shall remain responsible for the performance of
its obligations hereunder, and Borrower and Administrative Agent shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations hereunder. Any agreement pursuant to which any Lender may
grant a Participation shall provide that such Lender shall retain the sole right
and responsibility to enforce the obligations of Borrower hereunder and under
any other Loan Document, including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document or the Subordination Agreement; provided, however, that such
participation agreement may provide that such Lender will not agree to any
modification, amendment or waiver described in clauses (i) through (viii) of
Section 12.02 without the consent of the Participant.
Subject to the provisions of Section 10.17, any Lender may at
any time assign (x) to any bank or other financial institution with (A) the
acknowledgment of Administrative Agent, (B) the consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (C)
provided there exists no Event of Default, the prior written consent of Borrower
and (D) unless the bank or other financial institution has assets of at least
$500,000,000, has a net worth of at least $250,000,000 and in all respects other
than net worth and assets meets the requirements for an "Institutional Investor"
(as defined in the Mortgage), the consent of the Required Lenders, none of which
consents listed above shall be unreasonably withheld or delayed, or (y) to one
of the existing Lenders, to one or more of the institutions listed on EXHIBIT G
or to one or more banks or other institutions which are majority owned
subsidiaries of a Lender or of the Parent of a Lender (each such bank or other
institution described in clause (x) or (y) above, an "Assignee") all, or a
proportionate part of all, of its rights and obligations under this Agreement
and the Note, and such Assignee shall assume rights and obligations, pursuant to
an Assignment and Assumption Agreement executed by such Assignee and the
assigning Lender, provided that, in each case, after giving effect to such
assignment the Assignee's Loan Commitment, and, in the case of a partial
assignment, the assigning Lender's Loan Commitment, each will be equal to or
greater than $10,000,000; provided, further, however, that the assigning Lender
shall not be required to maintain a Loan Commitment in the minimum amount
aforesaid in the event it assigns all of its rights and obligations under this
Agreement and the Note. Upon (i) execution and delivery of such instrument, (ii)
payment by such Assignee to the assigning Lender of an amount equal to the
purchase price agreed between such Lender and such Assignee and (iii) payment by
such Assignee to Administrative Agent of a fee, for Administrative Agent's own
account, in the amount of $3,500, such Assignee shall be a Lender under this
Agreement and shall have all the rights and obligations of a Lender as set forth
in such Assignment and Assumption Agreement, and the assigning Lender shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. If the Assignee is not
incorporated under the Laws of the United States or a state thereof, it shall,
prior to the first date on which interest or fees are payable hereunder for its
account, deliver to Borrower and Administrative Agent certification as to
exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 10.13. Each Assignee shall be deemed to have
made the representations contained in, and shall be bound by the provisions of,
Section 10.13.
66
Any Lender may at any time freely assign all or any portion of
its rights under this Agreement and the Note to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations hereunder.
Borrower recognizes that in connection with a Lender's selling
of Participations or making of assignments, any or all documentation, financial
statements, appraisals and other data, or copies thereof, relevant to Borrower,
Guarantor or the Loans may be exhibited to and retained by any such Participant
or assignee or prospective Participant or assignee. In connection with a
Lender's delivery of any financial statements and appraisals to any such
Participant or assignee or prospective Participant or assignee, such Lender
shall also indicate that the same are delivered on a confidential basis.
Borrower agrees, at no material cost or expense, and without expanding
Borrower's liability already provided for in the Loan Documents, to provide all
assistance reasonably requested by a Lender to enable such Lender to sell
Participations or make assignments of its Loan as permitted by this Section.
Each Lender agrees to provide Administrative Agent and Borrower with notice of
all Participations sold by such Lender.
Section 12.06 Documentation Satisfactory. All documentation
required from or to be submitted on behalf of Borrower in connection with this
Agreement and the documents relating hereto shall be subject to the prior
approval of, and be satisfactory in form and substance to, Administrative Agent,
its counsel and, where specifically provided herein, Lenders. In addition, the
persons or parties responsible for the execution and delivery of, and
signatories to, all of such documentation, shall be acceptable to, and subject
to the approval of, Administrative Agent and its counsel.
Section 12.07 Notices. Except as expressly provided otherwise,
all notices, demands, consents, approvals and statements required or permitted
hereunder shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes when presented personally, three (3) days after
mailing by registered or certified mail, postage prepaid, or one (1) day after
delivery to a nationally recognized overnight courier service providing evidence
of the date of delivery, addressed to a party at its address on the signature
page hereof or of the applicable Assignment and Assumption Agreement, or at such
other address of which a party shall have notified the party giving such notice
in writing in accordance with the foregoing requirements. All notices that are
permitted to be given by telephone shall be promptly confirmed by facsimile.
Section 12.08 Setoff. Borrower agrees that, in addition to
(and without limitation of) any right of setoff, bankers' lien or counterclaim a
Lender may otherwise have, Administrative Agent and each Lender shall be
entitled, at its option, to offset balances (general or special, time or demand,
provisional or final) held by it for the account of Borrower at any of
Administrative Agent's or such Lender's offices, in Dollars or in any other
currency, against any amount payable by Borrower to Administrative
67
Agent or such Lender under this Agreement or the Note or any other Loan Document
which is not paid when due (regardless of whether such balances are then due to
Borrower), in which case it shall promptly notify Borrower and (in the case of
setoff by a Lender) Administrative Agent thereof; provided, however, that
failure to give such notice shall not affect the validity thereof. Payments by
Borrower hereunder or under the other Loan Documents shall be made without
setoff or counterclaim.
Section 12.09 Severability. The provisions of this Agreement
are intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the validity
or enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 12.10 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any party hereto may execute this Agreement by signing
any such counterpart.
Section 12.11 Integration. The Loan Documents, the
Supplemental Letter Agreement and the Subordination Agreement set forth the
entire agreement among the parties hereto relating to the transactions
contemplated thereby and supersede any prior oral or written statements or
agreements with respect to such transactions.
Section 12.12 Governing Law. This Agreement shall be governed
by, and construed and enforced in accordance with, the Laws of the State of New
York.
Section 12.13 Waivers. In connection with the obligations and
liabilities as aforesaid, Borrower hereby waives (i) promptness and diligence,
(ii) notice of any actions taken by Administrative Agent or any Lender under
this Agreement, any other Loan Document or any other agreement or instrument
relating thereto except to the extent otherwise provided herein, (iii) all other
notices, demands and protests, and all other formalities of every kind in
connection with the enforcement of the Obligations, the omission of or delay in
which, but for the provisions of this Section, might constitute grounds for
relieving Borrower of its obligations hereunder, (iv) any requirement that
Administrative Agent or any Lender protect, secure, perfect or insure any Lien
on all or any portion of the Mortgaged Property or on any other collateral or
exhaust any right or take any action against Borrower, Guarantor or any other
Person or against all or any portion of the Mortgaged Property or any other
collateral, (v) any right or claim of right to cause a marshalling of the assets
of Borrower and (vi) all rights of subrogation or contribution, whether arising
by contract or operation of law (including, without limitation, any such right
arising under the Federal Bankruptcy Code) or otherwise by reason of payment by
Borrower, either jointly or severally, pursuant to this Agreement or other Loan
Documents.
Section 12.14 Jurisdiction; Immunities. Borrower,
Administrative Agent and each Lender hereby irrevocably submit to the
jurisdiction of any New York
68
State or U.S. federal court sitting in New York City over any action or
proceeding arising out of or relating to this Agreement, the Note or any other
Loan Document. Borrower, Administrative Agent, and each Lender irrevocably agree
that all claims in respect of such action or proceeding may be heard and
determined in such New York State or U.S. federal court. Borrower,
Administrative Agent, and each Lender irrevocably consent to the service of any
and all process in any such action or proceeding by the mailing of copies of
such process to Borrower, Administrative Agent or each Lender, as the case may
be, at the addresses specified herein. Borrower, Administrative Agent and each
Lender agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by Law. Borrower, Administrative Agent and each
Lender further waive any objection to venue in the State of New York and any
objection to an action or proceeding in the State of New York on the basis of
forum non conveniens.
Nothing in this Section shall affect the right of Borrower,
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Law.
To the extent that Borrower, Administrative Agent or any
Lender have or hereafter may acquire any immunity from jurisdiction of any court
or from any legal process (whether from service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its Property, Borrower, Administrative Agent and each Lender hereby
irrevocably waive such immunity in respect of its obligations under this
Agreement, the Note and any other Loan Document.
BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER WAIVE ANY RIGHT
EACH SUCH PARTY MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT, THE NOTE OR THE LOANS. IN
ADDITION, BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN
CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF
ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTE OR
OTHERWISE IN RESPECT OF THE LOANS, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (X)
INJUNCTIVE RELIEF, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A
COMPULSORY COUNTERCLAIM AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR
SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY
PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR
MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH
RESPECT TO ANY ASSERTED CLAIM.
Section 12.15 Gross-Up For Taxes. All payments made by
Borrower under this Agreement and the Note shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding income taxes and franchise or
other taxes (imposed in lieu of income taxes)
69
imposed on a Lender as a result of a present or former connection between such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from such Lender's having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or the Note). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to
be withheld from any amounts payable to such Lender hereunder or under the Note,
the amounts so payable to such Lender shall be increased to the extent necessary
to yield to such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable with respect to the its Loan at the rates or in
the amounts specified in this Agreement and the Note; provided, however, that
Borrower shall not be required to increase any such amounts payable to such
Lender if such Lender is not organized under the Laws of the United States or a
state thereof and such Lender fails to comply with the requirements of Section
10.13. Whenever any Non-Excluded Taxes are payable by Borrower, as promptly as
possible thereafter Borrower shall send to Administrative Agent for the account
of such Lender a certified copy of an original official receipt received by
Borrower showing payment thereof. If Borrower fails to pay any Non-Excluded
Taxes when due to the appropriate taxing authority or fails to remit to
Administrative Agent the required receipts or other required documentary
evidence, Borrower shall indemnify such Lender for any incremental taxes,
interest or penalties that may become payable by such Lender as a result of any
such failure. The agreements in this Section shall survive the termination of
this Agreement and the payment of the Note and all other amounts payable
hereunder.
70
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
METROPOLITAN 919 3RD AVENUE LLC, a
Delaware limited liability company
(as Borrower)
By: Metropolitan 919 Manager LLC, a Delaware
limited liability company, its managing
member
By: Metropolitan Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Metropolitan Partners LLC, a
Delaware limited liability
company, its general partner
By
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
Address for notices:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇
71
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION (as Lender and Administrative
Agent)
By
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
Address for notices:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Administrative Agent's Office and Applicable
Lending Office:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE CAPITAL INC.
(as Lender)
By
-----------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
72
LANDESBANK SAAR GIROZENTRALE
(as Lender)
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
73
DEUTSCHE POSTBANK AG
(as Lender)
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
74
BAYERISCHE LANDESBANK,
CAYMAN ISLANDS BRANCH
(as Lender)
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
75
DGZO DEKABANK
DEUTSCHE KOMMUNALBANK
(as Lender)
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
Mainzer ▇▇▇▇▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
76
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
(as Lender)
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
2 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
77
WESTDEUTSCHE IMMOBILIENBANK
(as Lender)
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
Gro(beta)e ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
78
LANDESBANK SCHLESWIG-HOLSTEIN,
GIROZENTRALE
(as Lender)
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
▇▇▇▇▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
79
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
(as Lender)
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
80
LANDESBANK SACHSEN GIROZENTRALE
(as Lender)
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
▇▇▇▇▇▇▇▇▇▇▇▇(▇▇▇▇)▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
81
EXHIBIT A
AUTHORIZATION LETTER
________ ___, 2000
[NAME AND ADDRESS OF ADMINISTRATIVE AGENT]
Re: Secured Loan Agreement dated as of ____________, 2000
(the "Loan Agreement"; capitalized terms not
otherwise defined herein shall have the meanings
ascribed to such terms in the Loan Agreement) among
us, as Borrower, the Lenders named therein, and you,
as Administrative Agent for said Lenders
Dear Sir/Madam:
In connection with the captioned Loan Agreement, we hereby
designate any of the following persons to give to you instructions, including
notices required pursuant to the Loan Agreement, orally, by telephone or
teleprocess, or in writing:
[NAMES]
Instructions may be honored on the oral, telephonic,
teleprocess or written instructions of anyone purporting to be any one of the
above designated persons even if the instructions are for the benefit of the
person delivering them. We will furnish you with written confirmation of each
such instruction signed by any person designated above (including any telecopy
which appears to bear the signature of any person designated above) on the same
day that the instruction is provided to you, but your responsibility with
respect to any instruction shall not be affected by your failure to receive such
confirmation or by its contents.
Without limiting the foregoing, we hereby unconditionally
authorize any one of the above-designated persons to execute and submit requests
for fundings of proceeds of the Loans (including the Initial Funding) and
notices of Elections, Conversions and Continuations to you under the Loan
Agreement with the identical force and effect in all respects as if executed and
submitted by us.
You and Lenders shall be fully protected in, and shall incur
no liability to us for, acting upon any instructions which you in good faith
believe to have been given by any person designated above, and in no event shall
you or Lenders be liable for special, consequential or punitive damages. In
addition, we agree to hold you and Lenders and your and their respective agents
harmless from any and all liability, loss and expense arising directly or
indirectly out of instructions that we provide to you in connection with the
Loan Agreement except for liability, loss or expense occasioned by your gross
negligence or willful misconduct.
A-1
Upon notice to us, you may, at your option, refuse to execute
any instruction, or part thereof, without incurring any responsibility for any
loss, liability or expense arising out of such refusal if you in good faith
believe that the person delivering the instruction is not one of the persons
designated above or if the instruction is not accompanied by an authentication
method that we have agreed to in writing.
We will promptly notify you in writing of any change in the
persons designated above and, until you have actually received such written
notice and have had a reasonable opportunity to act upon it, you are authorized
to act upon instructions, even though the person delivering them may no longer
be authorized.
Very truly yours,
[BORROWER]
By
------------------------------------
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇
▇___________ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
__________, 2000
For value received, [BORROWER] a _______________ ("Borrower"),
hereby promises to pay to the order of ___________ ("Administrative Agent") or
its successors or assigns, for the account of Lenders or their respective
successors and assigns (for the further account of their respective Applicable
Lending offices) at the principal office of Administrative Agent located at
______________________________, the principal sum of ________ Dollars
($____________), or, if less, the aggregate amount loaned by Lenders under their
Loans to Borrower pursuant to the Loan Agreement and actually outstanding, in
lawful money of the United States and in immediately available funds, in
accordance with the terms set forth in the Loan Agreement. Borrower also
promises to pay interest on the unpaid principal balance hereof, for the period
such balance is outstanding, in like money, at said office for the account of
Lenders for the further account of their respective Applicable Lending Offices,
at the time and at a rate per annum as provided in the Loan Agreement. The Loan
Agreement provides in certain cases for the accrual of interest at the Default
Rate.
The date and amount of each funding of the Loans made by
Lenders to Borrower under the Loan Agreement referred to below, and each payment
of the Loans, shall be recorded by Administrative Agent on its records and may
be endorsed by Administrative Agent on the schedule attached hereto and any
continuation thereof.
This Note is the Note referred to in the Secured Loan
Agreement dated as of ________ __, 2000 (as the same may be amended from time to
time, the "Loan Agreement") among Borrower, the Lenders named therein and
Administrative Agent, as Administrative Agent for Lenders. All of the terms,
conditions and provisions of the Loan Agreement are hereby incorporated by
reference. All capitalized terms used herein and not defined herein shall have
the meanings given to them in the Loan Agreement.
This Note is secured by the Mortgage which contains, among
other things, provisions for the prepayment of and acceleration of this Note
upon the happening of certain stated events. Reference to the Mortgage is hereby
made for a description of the "Mortgaged Property" encumbered thereby and the
rights of Borrower and Lenders with respect to such Mortgaged Property. In
addition, the Loan Agreement contains, among other things, provisions for the
prepayment of and acceleration of this Note upon the happening of certain stated
events.
Borrower agrees that it shall be bound by any agreement
extending the time or modifying the terms of payment set forth above and in the
Loan Agreement, made by or on behalf of Lenders and the owner or owners of any
of the Mortgaged Property under the Mortgage, whether with or without notice to
Borrower, and Borrower shall continue liable to pay the amount due hereunder in
accordance with the terms set forth herein and in the Loan Agreement, but with
interest at a rate no greater than the rate of interest provided therein,
according to the terms of any such agreement of extension or modification.
B-1
Should the indebtedness represented by this Note or any part
thereof be collected at law or in equity, or in bankruptcy, receivership or any
other court proceeding (whether at the trial or appellate level), or should this
Note be placed in the hands of attorneys for collection upon default, Borrower
agrees to pay, in addition to the principal, interest and other sums due and
payable hereon, all costs of collecting or attempting to collect this Note,
including reasonable attorneys' fees and expenses.
No recourse shall be had under this Note against Borrower or
the Borrower Members except as and to the extent set forth in Section 11.02 of
the Loan Agreement.
All parties to this Note, whether principal, surety, guarantor
or endorser, hereby waive presentment for payment, demand, protest, notice of
protest and notice of dishonor.
This Note shall be governed by, and construed and enforced in
accordance with, the Laws of the State of New York; provided that, as to the
maximum lawful rate of interest which may be charged or collected, if the Laws
applicable to Lenders permit them to charge or collect a higher rate than the
Laws of the State of New York, then such Law applicable to Lenders shall apply
under this Note.
[BORROWER]
By
----------------------------------
Name:
Title:
B-2
Amount of Amount of Balance
Date Funding Payment Outstanding Notation by
B-3
EXHIBIT C
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of __________,
2000, between [INSERT NAME OF ASSIGNING LENDER] ("Assignor") and [INSERT NAME OF
ASSIGNEE] ("Assignee").
Preliminary Statement
1. This Assignment and Assumption Agreement (this "Agreement")
relates to the Secured Loan Agreement dated as of _____________, 2000 (as the
same may be amended from time to time, the "Loan Agreement") among ____________
("Borrower"), the lenders party thereto (each, a "Lender" and, collectively,
"Lenders") and ________________, as Administrative Agent for Lenders
("Administrative Agent"). All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Loan Agreement.
2. Subject to the terms and conditions set forth in the Loan
Agreement, Assignor has made a Loan Commitment to Borrower in an aggregate
principal amount of $____________ ("Assignor's Loan Commitment").
3. The aggregate outstanding principal amount of Assignor's
Loan made pursuant to Assignor's Loan Commitment at commencement of business on
the date hereof is $__________.
4. Assignor desires to assign to Assignee all of the rights of
Assignor under the Loan Agreement in respect of a portion of its Loan and Loan
Commitment thereunder in an amount equal to $__________ (collectively, the
"Assigned Loan and Commitment"), of which $________ is currently outstanding and
$________ remains to be disbursed to Borrower pursuant to the Loan Agreement;
and Assignee desires to accept assignment of such rights and assume the
corresponding obligations from Assignor on such terms.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. Assignment. Assignor hereby assigns and sells to
Assignee all of the rights of Assignor under the Loan Agreement in and to the
Assigned Loan and Commitment, and Assignee hereby accepts such assignment from
Assignor and assumes all of the obligations of Assignor under the Loan Agreement
with respect to the Assigned Loan and Commitment. Upon the execution and
delivery hereof by Assignor, Assignee, Administrative Agent (and, if applicable,
Borrower), and the payment of the amount specified in Section 2 hereof required
to be paid on the date hereof, (1) Assignee shall, as of the commencement of
business on the date hereof, succeed to the rights and obligations of a Lender
under the Loan Agreement with a Loan and a Loan Commitment in amounts equal to
the Assigned Loan and Commitment and (2) the Loan and Loan
C-1
Commitment of Assignor shall, as of the commencement of business on the date
hereof, be reduced correspondingly and Assignor released from its obligations
under the Loan Agreement to the extent such obligations have been assumed by
Assignee. Assignor represents and warrants that it (x) owns the Assigned Loan
and Commitment free and clear of all liens and other encumbrances and (y) is
legally authorized to enter into and perform this Agreement. Except as provided
in the immediately preceding sentence, the assignment provided for herein shall
be without representation or warranty by, or recourse to, Assignor.
SECTION 2. Payments. As consideration for the assignment and
sale contemplated in Section 1 hereof, Assignee shall pay to Assignor on the
date hereof in immediately available funds an amount equal to $___________.
Except as otherwise agreed by Assignor and Assignee, it is understood that any
fees paid to Assignor under the Loan Agreement are for the account of Assignor.
Each of Assignor and Assignee hereby agrees that if it receives any amount under
the Loan Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION 3. Consents. This Agreement is conditioned upon the
acknowledgment of Administrative Agent and, provided there exists no Event of
Default, the consent of Borrower and ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to Section 12.05 of
the Loan Agreement. The execution of this Agreement by Borrower (if required),
▇▇▇▇▇▇▇ ▇▇▇▇▇ and Administrative Agent is evidence of this consent and
acknowledgment. [CONSENTS NOT REQUIRED FOR CERTAIN ASSIGNMENTS TO ENTITIES
RELATED TO A LENDER.]
SECTION 4. Non-Reliance on Assignor. Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of Borrower or
any other party to any Loan Document, or the validity and enforceability of the
obligations of Borrower or any other party to a Loan Document in respect of the
Loan Agreement or any other Loan Document. Assignee acknowledges that it has,
independently and without reliance on Assignor, and based on such documents and
information as it has deemed appropriate, made its own analysis of the
collateral for the Loans, credit analysis of Borrower and the other parties to
the Loan Documents, and decision to enter into this Agreement, and will continue
to be responsible for making its own independent appraisal of the collateral, if
any, for the Loans and of the business, affairs and financial condition of
Borrower and the other parties to the Loan Documents.
SECTION 5. Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the Laws of the State of New York
(without giving effect to New York's principles of conflicts of law).
SECTION 6. Counterparts. 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.
C-2
SECTION 7. Certain Representations and Agreements by Assignee.
Assignee represents and warrants that it is legally authorized to enter into and
perform this Agreement. In addition, Assignee hereby represents that it is
entitled to receive any payments to be made to it under the Loan Agreement or
hereunder without the withholding of any tax and agrees to furnish the evidence
of such exemption as specified therein and otherwise to comply with the
provisions of Section 10.13 of the Loan Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
C-3
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
--------------------------------------
(as Assignor)
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
(as Assignee)
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
Applicable Lending Office and
Address for notices:
--------------------------------------
--------------------------------------
--------------------------------------
Attention:
----------------------------
Telephone:
----------------------------
Telecopy:
----------------------------
C-4
--------------------------------------
(as Administrative Agent)
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
--------------------------------------
(as Borrower)
By
------------------------------------
Name:
Title:
C-5
EXHIBIT D
SOLVENCY CERTIFICATE
The person executing this certificate is the _______________
of _____________, is familiar with its properties, assets and businesses, and is
duly authorized to execute this certificate on its behalf pursuant to Section
4.01(21) of the Secured Loan Agreement dated the date hereof (the "Loan
Agreement") among _________________ ("Borrower"), the lenders party thereto
(each, a "Lender" and collectively, "Lenders") and _______________________, as
Administrative Agent for Lenders (in such capacity, together with its successors
in such capacity, "Administrative Agent"). In executing this Certificate, such
person is acting solely in his or her capacity indicated above, and not in his
or her individual capacity. Unless otherwise defined herein, terms defined in
the Loan Agreement are used herein as therein defined.
The undersigned further certifies that he or she has carefully
reviewed the Loan Agreement and the other Loan Documents and the contents of
this Certificate and, in connection herewith, has made such investigation and
inquiries as he or she deems reasonably necessary and prudent therefor. The
undersigned further certifies that the financial information and assumptions
which underlie and form the basis for the representations made in this
Certificate were reasonable when made and were made in good faith and continue
to be reasonable as of the date hereof.
The undersigned understands that Administrative Agent and
Lenders are relying on the truth and accuracy of this Certificate in connection
with the transactions contemplated by the Loan Agreement.
The undersigned certifies that _____________________ is
Solvent.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate on ________ ___, 2000.
-------------------------------------
Name:
EXHIBIT E
NOTICE-OF-ASSIGNMENT OF LEASE
(On Letterhead of Borrower)
_____________, 2000
[NAME AND ADDRESS OF TENANT]
Re: Lease Dated:
Mortgagee: _______________________ (as Administrative Agent)
Address of Mortgagee:
Mortgage Dated:
Dear Sir/Madam:
The undersigned has assigned by a mortgage or deed of trust
(the "Mortgage") dated as shown above to the Mortgagee identified above
(hereinafter "Mortgagee") all its estate, right, title and interest in, to and
under the Lease between you and the undersigned dated as set forth above, as
said Lease may have been heretofore modified or amended (the "Lease"), together
with all right, title and interest of the undersigned as lessor thereunder,
including, without limitation, the right upon the occurrence of an Event of
Default (as defined in the Mortgage) to collect and receive all earnings,
revenues, rents, issues, profits and income of the Property subject to the
Mortgage.
Certain provisions of the Mortgage, the text of which are
attached hereto, restrict some of the undersigned's rights under the Lease.
However, said assignment does not impair or diminish any of our obligations to
you under the provisions of the Lease, nor are any such obligations imposed upon
Mortgagee or upon the lenders for whom Mortgagee is acting as Administrative
Agent, or their respective successors or assigns.
Pursuant to said assignment you are hereby notified that in
the event of a demand on you by Mortgagee or its successors and assigns for the
payment to it of the rents due under the Lease, you may, and are hereby
authorized and directed to, pay said rent to Mortgagee and we hereby agree that
the receipt by you of such a demand shall be conclusive evidence of Mortgagee's
right to the receipt thereof and that the payment of the rents by you to
Mortgagee pursuant to such demand shall constitute performance in full of your
obligation under the Lease for the payment of rent to the undersigned.
-----------------------
NOTE: To be sent in accordance with notice requirements of the Lease.
E-1
Kindly indicate your receipt of this letter and your agreement
to the effect set forth below by signing the enclosed copy thereof and mailing
it to Mortgagee at its address identified above.
[BORROWER]
By
------------------------------------
Name:
Title:
The undersigned acknowledges receipt of the original of this
letter and agrees for the benefit of Mortgagee that it shall notify Mortgagee of
any default on the part of the landlord under the Lease which would entitle the
undersigned to cancel the Lease or to ▇▇▇▇▇ the rent payable thereunder, and
further agrees that, notwithstanding any provision of the Lease, no notice of
cancellation thereof shall be effective unless Mortgagee has received the notice
aforesaid and has failed within 30 days of the date thereof to cure, or if the
default cannot be cured within 30 days has failed to commence and to diligently
prosecute the cure, of landlord's default which gave rise to the right to
cancel.
[NAME OF TENANT]
By:
-----------------------------------
------------------------,
its authorized officer
[ATTACH SECTION 1.14 OF MORTGAGE]
E-2
EXHIBIT F
CAPITAL IMPROVEMENT PROGRAM
F-1
EXHIBIT G
CERTAIN PRE-APPROVED ASSIGNEES
None.
G-1
EXHIBIT H
INFORMATION FURNISHED BY BORROWER
H-1
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS AND CONSTRUCTION OF TERMS.........................................1
Section 1.01 Definitions...................................................................1
Section 1.02 Accounting Terms.............................................................17
Section 1.03 Computation of Time Periods..................................................17
Section 1.04 Rules of Construction........................................................17
ARTICLE II THE LOANS....................................................................17
Section 2.01 The Loans....................................................................17
Section 2.02 Nature of Lenders' Obligations...............................................18
Section 2.03 Purpose......................................................................19
Section 2.04 Procedures for Fundings......................................................19
Section 2.05 Interest Periods; Renewals...................................................19
Section 2.06 Interest.....................................................................20
Section 2.07 Fees.........................................................................20
Section 2.08 Note.........................................................................20
Section 2.09 Prepayments..................................................................21
Section 2.10 Method of Payment............................................................21
Section 2.11 Elections, Conversions or Continuation of Loans..............................22
Section 2.12 Minimum Amounts..............................................................22
Section 2.13 Certain Notices Regarding Elections, Conversions and Continuations of Loans..22
Section 2.14 Late Payment Premium.........................................................23
Section 2.15 Debt Service Reserve.........................................................23
Section 2.16 Extension of Maturity........................................................24
Section 2.17 Interest Rate Cap during Third Year of Term..................................24
ARTICLE III YIELD PROTECTION; ILLEGALITY; ETC............................................26
Section 3.01 Additional Costs.............................................................26
Section 3.02 Limitation on Types of Loans.................................................27
Section 3.03 Illegality...................................................................27
Section 3.04 Treatment of Affected Loans..................................................28
Section 3.05 Certain Compensation.........................................................28
Section 3.06 Capital Adequacy.............................................................29
Section 3.07 Substitution of Lenders......................................................29
Section 3.08 "Lender" to Include Participants.............................................31
ARTICLE IV CONDITIONS PRECEDENT.........................................................31
Section 4.01 Conditions Precedent to Initial Funding......................................31
Section 4.02 Conditions Precedent to Fundings After the Initial Funding...................36
Section 4.03 Deemed Representations.......................................................37
i
ARTICLE V REPRESENTATIONS AND WARRANTIES...............................................38
Section 5.01 Due Organization.............................................................38
Section 5.02 Power and Authority; No Conflicts; Compliance With Laws......................38
Section 5.03 Legally Enforceable Agreements...............................................38
Section 5.04 Litigation...................................................................38
Section 5.05 Taxes........................................................................39
Section 5.06 ERISA........................................................................39
Section 5.07 No Default on Outstanding Judgments or Orders................................39
Section 5.08 No Defaults on Other Agreements..............................................39
Section 5.09 Government Regulation........................................................39
Section 5.10 Environmental Protection.....................................................39
Section 5.11 Solvency.....................................................................40
Section 5.12 Financial Statements.........................................................40
Section 5.13 Insurance....................................................................40
Section 5.14 Accuracy of Information; Full Disclosure.....................................40
Section 5.15 Separate Tax and Zoning Lot..................................................41
Section 5.16 Zoning and other Laws; Covenants and Restrictions............................41
Section 5.17 Utilities Available..........................................................41
Section 5.18 Creation of Liens............................................................41
Section 5.19 Roads........................................................................41
Section 5.20 Premises Documents and Leases................................................41
ARTICLE VI AFFIRMATIVE COVENANTS........................................................41
Section 6.01 Maintenance of Existence.....................................................42
Section 6.02 Maintenance of Records.......................................................42
Section 6.03 Compliance with Laws; Payment of Taxes.......................................42
Section 6.04 Right of Inspection..........................................................42
Section 6.05 Maintenance of Insurance.....................................................42
Section 6.06 Compliance With Environmental Laws...........................................42
Section 6.07 Maintenance of Improvements..................................................42
Section 6.08 Payment of Costs.............................................................43
Section 6.09 Reporting and Miscellaneous Document Requirements............................43
Section 6.10 Continuing Accuracy of Representations and Warranties........................45
Section 6.11 Premises Documents and Leases................................................45
Section 6.12 Compliance with Covenants, Restrictions and Easements........................45
Section 6.13 Management, Brokerage and Service Contracts..................................45
Section 6.14 Evidence of Completion of Work...............................................46
Section 6.15 Balance Sheet of Borrower....................................................46
Section 6.16 Trust Fund...................................................................46
ARTICLE VII SPE REPRESENTATIONS AND NEGATIVE COVENANTS...................................46
Section 7.01 Single Purpose Entity........................................................46
Section 7.02 Distributions................................................................48
Section 7.03 Interest Rate Hedging........................................................48
ii
ARTICLE VIII FINANCIAL COVENANTS..........................................................49
Section 8.01 Financial Covenants..........................................................49
Section 8.02 Cash Flow Sweep..............................................................49
ARTICLE IX EVENTS OF DEFAULT............................................................51
Section 9.01 Events of Default............................................................51
Section 9.02 Remedies.....................................................................54
ARTICLE X ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS................................54
Section 10.01 Appointment, Powers and Immunities of Administrative Agent...................54
Section 10.02 Reliance by Administrative Agent.............................................55
Section 10.03 Defaults.....................................................................55
Section 10.04 Rights of Administrative Agent as a Lender...................................56
Section 10.05 Sharing of Costs by Lenders; Indemnification of Administrative Agent.........56
Section 10.06 Non-Reliance on Administrative Agent and Other Lenders.......................57
Section 10.07 Failure of Administrative Agent to Act.......................................57
Section 10.08 Resignation or Removal of Administrative Agent...............................57
Section 10.09 Amendments Concerning Agency Function........................................58
Section 10.10 Liability of Administrative Agent............................................58
Section 10.11 Transfer of Agency Function..................................................58
Section 10.12 Intentionally Omitted........................................................58
Section 10.13 Withholding Taxes............................................................58
Section 10.14 Pro Rata Treatment...........................................................59
Section 10.15 Sharing of Payments Among Lenders............................................59
Section 10.16 Possession of Documents......................................................59
Section 10.17 Minimum Commitment by ▇▇▇▇▇▇▇ ▇▇▇▇▇..........................................59
Section 10.18 Effect of a Lender's Failure to Make a Funding...............................59
Section 10.19 Cure by Delinquent Lender....................................................61
Section 10.20 Delinquent Lender Not Excused................................................61
Section 10.21 Notices Regarding Delinquent Lender..........................................62
ARTICLE XI NATURE OF OBLIGATIONS........................................................62
Section 11.01 Absolute and Unconditional Obligations.......................................62
Section 11.02 Non-Recourse.................................................................62
ARTICLE XII MISCELLANEOUS................................................................63
Section 12.01 Binding Effect of Request for Funding........................................63
Section 12.02 Amendments and Waivers.......................................................64
Section 12.03 Usury........................................................................64
Section 12.04 Expenses; Indemnification....................................................65
Section 12.05 Assignment; Participation....................................................65
Section 12.06 Documentation Satisfactory...................................................67
Section 12.07 Notices......................................................................67
iii
Section 12.08 Setoff.......................................................................67
Section 12.09 Severability.................................................................68
Section 12.10 Counterparts.................................................................68
Section 12.11 Integration..................................................................68
Section 12.12 Governing Law................................................................68
Section 12.13 Waivers......................................................................68
Section 12.14 Jurisdiction; Immunities.....................................................68
Section 12.15 Gross-Up For Taxes...........................................................69
EXHIBIT A - Authorization Letter
EXHIBIT B - Note
EXHIBIT C - Assignment and Assumption Agreement
EXHIBIT D - Solvency Certificate
EXHIBIT E - Notice of Assignment of Lease
EXHIBIT F - Capital Improvement Program
EXHIBIT G - Certain Pre-Approved Assignees
EXHIBIT H - Information Furnished by Borrower
iv