SCHEDULE to the MASTER AGREEMENT dated as of
October 10, 1996 between THE CHASE MANHATTAN BANK
("Party A")
and
1290 PARTNERS, L.P. and 237 PARK PARTNERS, L.P., as joint and several obligors
("Party B")
PART 1: Termination Provisions and Certain Other Matters
(a) "Specified Entity" means, in relation to Party A, for the
purpose of:
Section 5(a)(v), none;
Section 5(a)(vi), none;
Section 5(a)(vii), none; and
Section 5(b)(iv), none;
and, in relation to Party B, for the purpose of:
Section 5(a)(v), 1290 Corp. and 237 Corp.;
Section 5(a)(vi), 1290 Corp. and 237 Corp.;
Section 5(a)(vii), 1290 Corp. and 237 Corp.; and
Section 5(b)(iv), 1290 Corp. and 237 Corp.
(b) "Specified Transaction" will have the meaning specified in
Section 14.
(c) The "Cross-Default" provisions of Section 5(a)(vi) will apply to
Party A and Party B. In connection therewith, "Specified Indebtedness" will have
the meaning specified in Section 14, except that such term shall not include
obligations in respect of deposits received in the ordinary course of such
party's banking business, and "Threshold Amount" means (i) in respect of Party
A, an amount equal to three percent of such party's shareholders' equity,
determined in accordance with generally accepted accounting principles in the
United States, consistently applied, as at the end of such party's most recently
completed fiscal year, and (ii) in respect of Party B, USD1.00 or the equivalent
thereof in any other currencies. For purposes of this definition, any Specified
Indebtedness denominated in a currency other than the currency in which the
financial statements of such party are denominated shall be converted into the
currency in which such financial statements are denominated at the exchange rate
therefor reasonably chosen by the other party.
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(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will
not apply to Party A. The "Credit Event Upon Merger" provisions of Section
5(b)(iv) will apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) will not
apply to Party A or Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means United States Dollars.
PART 2: Tax Representations
Not applicable.
PART 3: Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents:
(a) Tax forms, documents or certificates to be delivered are: none.
(b) Other documents to be delivered are:
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Party
required Covered by
to deliver Form/Document/ Date by which Section 3(d)
document Certificate to be delivered Representation
Party B Annual report of each entity As soon as available and Yes
comprising Party B containing in any event within 90
consolidated financial days after the end of
statements certified by each fiscal year of each
independent certified public entity comprising
accountants and prepared in Party B, unless
accordance with accounting otherwise provided to
principles that are generally Party A pursuant to the
accepted in the country in Credit Agreement (as
which each entity comprising hereinafter defined)
Party B is organized
Party B Unaudited consolidated As soon as available and Yes
financial statements of each in any event within 60
entity comprising Party B for days after the end of
a fiscal quarter prepared in each fiscal quarter of
accordance with accounting each entity comprising
principles that are generally Party B, unless
accepted in the country in otherwise provided to
which each entity comprising Party A pursuant to the
Party B is organized and on a Credit Agreement (as
basis consistent with that of hereinafter defined)
the respective annual financial
statements of each entity
comprising Party B.
Party B Opinion of counsel satisfactory Upon execution and No
to Party A substantially in the delivery of this
form of Exhibit I hereto Agreement
Party A Certified copies of all Upon execution and Yes
and corporate authorizations and delivery of this
Party B any other documents with Agreement and thereafter
respect to the execution, upon the request of the
delivery and performance of other party
this Agreement.
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Party A Certificate of authority and Upon execution and Yes
and specimen signatures of delivery of this
Party B individuals executing this Agreement and thereafter
Agreement and Confirmations upon request of the other
party
PART 4: Miscellaneous
(a) Address for Notices. For the purpose of Section 12(a) of this
Agreement:
Address for notice or communications to Party A:
Any notice relating to a particular Transaction shall be delivered to the
address or facsimile or telex number specified in the Confirmation of such
Transaction. Any notice delivered for purposes of Sections 5 and 6 of this
Agreement shall be delivered to the following address:
The Chase Manhattan Bank
Attention: Legal Department-Capital Markets Group
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Telex No.: 232337; Answerback: CBC UR
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Address for notice or communications to Party B:
1290 Partners, L.P. and 237 Park Partners, L.P.
c/o ▇▇▇▇▇▇ Capital Group, L.P.
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Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Tishman Speyer Properties, L.P.
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Attention: Region Manager
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will not apply to this
Agreement.
(d) Multibranch Party. For the purpose of Section 10 of this
Agreement:
Party A is not a Multibranch Party. Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A, unless
otherwise specified in a Confirmation in relation to the relevant Transaction.
(f) Credit Support Document. Details of any Credit Support Document: In
respect of Party B, the following shall be Credit Support Documents: (i) Credit
Agreement, dated as of the date hereof, among 1290 Partners, L.P., 237 Park
Partners, L.P., The Chase Manhattan Bank, as Agent for certain Lenders listed
therein (the "Lenders"), and the Lenders, (ii) Mortgage Consolidation,
Modification, Restatement, Security Agreement and Assignment of Leases and
Rents, dated as of the date hereof, among 1290 Partners, L.P., 237 Park
Partners, L.P., and The Chase Manhattan Bank, as Agent for certain Lenders,
(iii) Note Pledge and Security Agreement, dated as of the date hereof, among
1290 Partners, L.P., 237 Park Partners, L.P., and The Chase Manhattan Bank, as
Agent for certain Lenders, (iv) Cash Collateral Account Security, Pledge and
Assignment Agreement, dated as of the date hereof, among 1290 Partners, L.P.,
237 Park Partners, L.P., and The Chase Manhattan Bank, as Agent for certain
Lenders, (v) Joint and Several Hazardous Material Guaranty and Indemnification
Agreement, dated as of the date hereof, by 1290 Partners, L.P., and 237 Park
Partners, L.P., in favor of The Chase Manhattan Bank, as Agent for certain
Lenders, (vi) Assignment of Leases, Rents and Security Deposits, dated as of the
date hereof, by 1290 Partners, L.P., and 237 Park Partners, L.P., in favor of
The Chase Manhattan Bank, as Agent for certain Lenders, and (vii) Interest Rate
Agreement Pledge and Security Agreement, dated as of the date hereof, among 1290
Partners, L.P., 237 Park Partners, L.P., and The Chase Manhattan Bank, as Agent
for certain Lenders.
(g) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to choice
of law doctrine).
(h) Netting of Payments. Subparagraph (ii) of Section 2(c) will not
apply to any Transaction unless specified in the relevant Confirmation.
(i) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
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PART 5: Other Provisions
(a) Set-off. Any amount (the "Early Termination Amount") payable to one
party (the "Payee") by the other party (the "Payer") under Section 6(e), in
circumstances where there is a Defaulting Party or one Affected Party in the
case where a Termination Event under Section 5(b)(iv) has occurred, will, at the
option of the party ('X') other than the Defaulting Party or the Affected Party
(and without prior notice to the Defaulting Party or the Affected Party), be
reduced by its set-off against any amount(s) (the 'Other Agreement Amount')
payable (whether at such time or in the future or upon the occurrence of a
contingency) by the Payee to the Payer (irrespective of the currency, place of
payment or booking office of the obligation) under any other agreement(s)
between the Payee and the Payer or instrument(s) or undertaking(s) issued or
executed by one party to, or in favor of, the other party (and the Other
Agreement Amount will be discharged promptly and in all respects to the extent
it is so set-off). X will give notice to the other party of any set-off effected
under this Part 5(a).
For this purpose, either the Early Termination Amount or the Other Agreement
Amount (or the relevant portion of such amounts) may be converted by X into the
currency in which the other is denominated at the rate of exchange at which such
party would be able, acting in a reasonable manner and in good faith, to
purchase the relevant amount of such currency.
If an obligation is unascertained, X may in good faith estimate that obligation
and set off in respect of the estimate, provided that (A) if the amount of the
obligation owing by Y, when ultimately ascertained, is greater than the
estimated amount of such obligation, X shall be entitled to exercise a right of
set-off to the extent of such excess, (B) if the amount of the obligation owing
by Y, when ultimately ascertained, is less than the estimated amount of such
obligation, any obligation of X set off against such excess shall be reinstated,
(C) if the amount of the obligation owing by X, when ultimately ascertained, is
greater than the estimated amount of such obligation, X shall be entitled to
exercise a right of set-off to the extent of such excess and (D) if the amount
of the obligation owing by X, when ultimately ascertained, is less than the
estimated amount of such obligation, any obligation of Y set off against such
excess shall be reinstated.
Nothing in this Part 5(a) shall be effective to create a charge or other
security interest. This Part 5(a) shall be without prejudice and in addition to
any right of set-off, combination of accounts, lien or other right to which any
party is at any time otherwise entitled (whether by operation of law, contract
or otherwise).
(b) Exchange of Confirmations. For each Transaction entered into
hereunder, Party A shall promptly send to Party B a Confirmation, via telex or
facsimile transmission. Party B agrees to respond to such Confirmation within 10
Business Days (for this purpose, Business Days refers to Business Days in the
location of the recipient), either confirming agreement thereto or requesting a
correction of any error(s) contained therein. Failure by Party B to respond
within such period shall not affect the validity or enforceability of such
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Transaction and shall be deemed to be an affirmation of the terms contained in
such Confirmation, absent manifest error. The parties agree that any such
exchange of telexes or facsimile transmissions shall constitute a Confirmation
for all purposes hereunder.
(c) Waiver of Right to Trial by Jury. Each party hereby irrevocably
waives any and all rights to trial by jury with respect to any legal proceeding
arising out of or relating to this Agreement or any Transaction contemplated
hereby.
(d) Telephonic Recording. Each party (i) consents to the recording of
the telephone conversations of trading, marketing, and operations personnel of
the parties and their Affiliates in connection with this Agreement or any
potential Transaction and (ii) agrees to obtain any necessary consent of, and
give notice of such recording to, such personnel of it and its Affiliates.
(e) Further Representations. (i) Party B represents to Party A (which
representations will be deemed to be repeated by Party B on each date on which a
Transaction is entered into) that:
(1) Generally Accepted Accounting Principles. The financial
information delivered pursuant to paragraph (b) of Part 3 of this
Schedule, including the related schedules and notes thereto, has been
prepared in accordance with accounting principles that are generally
accepted in the country in which Party B is organized, applied
consistently throughout the periods involved (except as disclosed
therein).
(2) No Material Contingent Obligation(s). Neither Party B nor any
of its subsidiaries has any material contingent obligation, contingent
liability or liability for taxes, long-term lease or unusual forward or
long-term commitment, which is not reflected in the financial statements
delivered to Party A pursuant to this Schedule or in the notes thereto.
(ii) Each entity comprising Party B represents to Party A, and
Party A represents to Party B, which representation will be deemed to be
repeated on each date on which a Transaction is entered into, that it is an
"eligible swap participant" as such term is defined in Part 35 of Chapter I of
Title 17 of the Code of Federal Regulations, promulgated by the Commodity
Futures Trading Commission, entitled "Exemption of Swap Agreements.
(f) Relationship Between Parties. The following representation shall be
inserted as a new Section 3(g) of this Agreement:
(g) Relationship Between Parties. Absent a written agreement to the
contrary:
(i) It is not relying on any advice (whether written or oral) of the
other party regarding any Transaction, other than the representations expressly
made by that other party in this Agreement and in the Confirmation in respect of
that Transaction; and
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(ii) In respect of each Transaction under this Agreement:
(1) It has the capacity to evaluate (internally or
through independent professional advice) that Transaction
and has made its own decision to enter into that
Transaction;
(2) It understands the terms, conditions and risks of
that Transaction and is willing to accept those terms and
conditions and to assume (financially and otherwise)
those risks; and
(3) The other party (a) is not acting as a fiduciary or
financial, investment or commodity trading advisor for
it; (b) has not given to it (directly or indirectly
through any other person) any assurance, guaranty or
representation whatsoever as to the merits (either legal,
regulatory, tax, financial, accounting or otherwise) of
that Transaction or any documentation related thereto;
and (c) has not committed to unwind that Transaction."
(h) Absence of Litigation. Section 3(c) of this Agreement is amended by
deleting the words "or, to its knowledge, threatened" in the first line thereof.
(i) "Credit Agreement" means the Credit Agreement dated as of the date
hereof among 1290 Partners, L.P. and 237 Park Partners, L.P., as Borrowers, the
Lenders listed therein, and The Chase Manhattan Bank, as Agent, as amended,
supplemented or otherwise modified from time to time; provided that if the
obligations under the Credit Agreement are paid in full or the Credit Agreement
is otherwise terminated, Credit Agreement means the Credit Agreement as it
existed immediately prior to such event.
(j) Further Agreements of Party B. Each of the entities comprising Party
B agrees with Party A that, so long as it has or may have any obligation under
this Agreement, it will comply with each of the covenants set forth in Article V
of the Credit Agreement.
(k) Additional Events of Default. With respect to Party B, it shall
constitute an Event of Default under this Agreement if there shall occur any
Event of Default as defined in the Credit Agreement.
(l) Further Representation of Party B. Each of the entities comprising
Party B represents and warrants to Party A (which representation will be deemed
to be repeated by each of the entities comprising Party B on each date on which
a Transaction is entered into) that each of the representations and warranties
made by it in Article IV of the Credit Agreement would be true and correct if
made as of the date hereof, and, on the date hereof, no Event of Default as
defined in the Credit Agreement has occurred and is continuing.
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(m) Joint and Several.
This Agreement is the joint and several agreement of each of the
entities comprising Party B, and the obligations and liabilities arising under
this Agreement are the joint and several obligations and liabilities of each of
the entities comprising Party B. Not in limitation of the immediately preceding
sentence, (i) each of the entities comprising Party B makes the representations
set forth in Section 3 of this Agreement to Party A, (ii) each of the entities
comprising Party B makes the agreements set forth in Section 4 of this Agreement
and undertakes joint and several liability with the other entity comprising
Party B for the performance of such agreements, (iii) an Event of Default or
Termination Event shall be deemed to occur with respect to Party B if it occurs
with respect to either of the entities comprising Party B and (iv) the
submission set forth in Section 13(a) of this Agreement, the waivers set forth
in Section 13(b) and (d) of this Agreement and the consent set forth in Section
13(c) of this Agreement are applicable to each of the entities comprising Party
B.
Each of the entities comprising Party B executes this Agreement
as a primary obligor, not as surety. Party A shall not be bound to exhaust its
recourse or to take any action against any one of such entities before being
entitled to performance under this Agreement from the other entity, but rather
Party A may make such demands and take such actions as it deems advisable and
may apply money received from any such entity upon such part of the obligations
arising under this Agreement as Party A may think best.
Each of the entities comprising Party B hereby waives notice of
failure by the other of such entities to pay when due any amount payable by the
other of such entities under this Agreement. Each of the entities comprising
Party B consents to and waives notice of (a) extension or renewal of any
obligation arising under this Agreement, (b) amendment or termination or waiver
of any provision of this Agreement as between Party A and the other of the
entities comprising Party B, and (c) release of the other entities comprising
Party B or cancellation of its obligations under the Agreement.
Until full and final payment to Party A of all amounts due to it
under this Agreement, each of the entities comprising Party B (a) agrees not to
exercise any right it may acquire against the other entity comprising Party B
(whether by subrogation, reimbursement, contribution, or otherwise) as a result
of payments made to Party A under this Agreement with respect to its rights
against such other entity arising hereunder, (b) assigns to Party A all such
rights such entity may have in any bankruptcy, receivership or insolvency
proceedings commenced by or against the other entity comprising Party B or its
property with respect to its rights against such other entity arising hereunder,
and (c) appoints Party A attorney-in-fact for it to appear in any such
proceeding, file claims, receive
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payments, and to do any other act which it could do personally in connection
with such rights.
THE CHASE MANHATTAN BANK
By:
Title: Vice President
1290 PARTNERS, L.P.
By: 1290 GP Corp., General Partner
By
Title: President
237 PARK PARTNERS, L.P.
By: 237 GP Corp. General Partner
By:
Title: President
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EXHIBIT I
FORM OF OPINION OF COUNSEL TO PARTY B
Date:
The Chase Manhattan Bank
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Ladies and Gentlemen:
We are counsel to 1290 Partners, L.P. and 237 Park Partners, L.P., each
of which is a _______________ limited partnership (collectively, the
"Counterparty"), and we are delivering this opinion in connection with the
Master Agreement, dated as of October [], 1996 (as supplemented by the
Confirmations relating to the Transactions entered into pursuant thereto, the
"Agreement"), between the Counterparty and The Chase Manhattan Bank ("Chase").
Terms defined in the Agreement are used herein as therein defined.
In that connection, we have examined the originals, or copies certified
to our satisfaction, of the Agreement and such corporate records of the
Counterparty, certificates of public officials and of officers of the
Counterparty, and agreements, instruments, and documents, as we have deemed
necessary as a basis for the opinions hereinafter expressed. As to questions of
fact material to such opinions, we have, when relevant facts were not
independently established by us, relied upon certificates of the Counterparty,
or its officers or of public officials. We have assumed the due execution and
delivery of the Agreement by Chase.
Based upon the foregoing, we are of the following opinion:
1. Each of the parties comprising the Counterparty is a limited
partnership duly organized, validly existing and in good standing under the laws
of _____________.
2. Each of the parties comprising the Counterparty has the power to
execute and deliver the Agreement and to perform its obligations under the
Agreement and has taken all necessary action to authorize such execution and
delivery and performance of such obligations.
3. The execution and delivery of the Agreement by the Counterparty and
the Counterparty's performance of its obligations under the Agreement do not
violate or conflict with any law, rule or regulation applicable to it, any
provision of its charter or by-laws (or
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comparable constitutional documents), any order or judgment of any court or
other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting the Counterparty or any of its
assets.
4. All authorizations of and exemptions, actions or approvals by, and
all notices to or filings with, any governmental or other authority that are
required to have been obtained or made by the Counterparty with respect to the
Agreement have been obtained or made and are in full force and effect and all
conditions of any such authorizations, exemptions, actions or approvals have
been complied with.
5. The Agreement constitutes the Counterparty's legal, valid and binding
obligation enforceable against the Counterparty in accordance with its terms
(subject to applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or at law)).
6. To the best of our knowledge, after due inquiry, there is not pending
or threatened against the Counterparty or any of its Affiliates any action, suit
or proceeding at law or in equity or before any court, tribunal, government
body, agency or official or any arbitrator that is likely to affect the
legality, validity or enforceability against the Counterparty of the Agreement
or its ability to perform its obligations thereunder.
We are qualified to practice law in the State of
___________________________ and do not purport to be expert on, or to express
any opinion herein concerning, any law other than the laws of the State of
__________________________ and the federal laws of the United States of America.
Very truly yours,
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