Exhibit 10.2A
B&W DRAFT 5/12/98
CREDIT AGREEMENT
dated as of
___, 1998
between
RECKSON SERVICE INDUSTRIES, INC.,
as Borrower
and
RECKSON OPERATING PARTNERSHIP, L.P.,
as Lender
relating to the operations of
RECKSON SERVICE INDUSTRIES, INC.
Table of Contents
Page
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions........................................................1
(a) Terms Generally....................................................1
(b) Other Terms........................................................1
ARTICLE II.
THE REVOLVING CREDIT FACILITY
Section 2.1 Commitment and Loans...............................................6
Section 2.2 Borrowing Procedure................................................6
Section 2.3 Termination and Reduction of Commitment............................6
Section 2.4 Repayment..........................................................6
Section 2.5 Optional Prepayment................................................7
ARTICLE III.
INTEREST AND FEES
Section 3.1 Interest Rate......................................................8
Section 3.2 Interest on Overdue Amounts........................................8
Section 3.3 Maximum Interest Rate..............................................8
ARTICLE IV.
DISBURSEMENT AND PAYMENT
Section 4.1 Method and Time of Payments........................................9
Section 4.2 Compensation for Losses............................................9
Section 4.3 Withholding and Additional Costs..................................10
(a) Withholding.......................................................10
(b) Additional Costs..................................................10
(c) Certificate, Etc..................................................10
Section 4.4 Expenses; Indemnity...............................................11
Section 4.5 Survival..........................................................11
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties....................................11
(a) Good Standing and Power...........................................12
(b) Authority.........................................................12
(c) Authorizations....................................................12
(d) Binding Obligation................................................12
(e) Litigation........................................................12
(f) No Conflicts......................................................12
(g) Taxes.............................................................13
(h) Properties........................................................13
(i) Compliance with Laws and Charter Documents........................13
(j) No Material Adverse Effect........................................13
(k) Disclosure........................................................13
Section 5.2 Survival..........................................................13
ARTICLE VI.
CONDITIONS PRECEDENT
Section 6.1 Conditions to the Availability of the Commitment..................14
(a) This Agreement....................................................14
(b) Certificate of Incorporation and By-Laws..........................14
(c) Representations and Warranties....................................14
(d) Other Documents...................................................14
(e) REIT Status of Reckson............................................14
(f) Certain Loans Subject to Reckson's Approval.......................14
Section 6.2 Conditions to All Loans...........................................14
(a) Borrowing Request.................................................15
(b) No Default........................................................15
(c) Debt-to-Equity Ratio..............................................15
(d) Representations and Warranties; Covenants.........................15
Section 6.3 Satisfaction of Conditions Precedent..............................15
ARTICLE VII.
COVENANTS
Section 7.1 Affirmative Covenants.............................................15
(a) Financial Statements; Compliance Certificates.....................15
(b) Existence.........................................................16
(c) Compliance with Law and Agreements................................16
(d) Authorizations....................................................16
(e) Inspection........................................................16
(f) Maintenance of Records............................................16
(g) Notice of Defaults and Adverse Developments.......................17
Section 7.2 Negative Covenants................................................17
(a) Mergers, Consolidations and Sales of Assets.......................17
(b) Liens.............................................................17
(c) Indebtedness......................................................17
(d) Dividends.........................................................17
(e) Certain Amendments................................................18
ARTICLE VIII.
EVENTS OF DEFAULT
Section 8.1 Events of Default.................................................18
ARTICLE IX.
EVIDENCE OF LOANS; TRANSFERS
Section 9.1 Evidence of Loans.................................................20
ARTICLE X.
MISCELLANEOUS
Section 10.1 Applicable Law...................................................20
Section 10.2 Waiver of Jury...................................................20
Section 10.3 Jurisdiction and Venue; Service of Process.......................20
Section 10.4 Confidentiality..................................................21
Section 10.5 Amendments and Waivers...........................................21
Section 10.6 Cumulative Rights; No Waiver.....................................21
Section 10.7 Notices..........................................................21
Section 10.8 Certain Acknowledgments..........................................22
Section 10.9 Separability.....................................................22
Section 10.10 Parties in Interest.............................................22
Section 10.11 Execution in Counterparts.......................................22
CREDIT AGREEMENT, dated as of ___, 1998, between Reckson Service
Industries, Inc., a Delaware corporation, and Reckson Operating Partnership,
L.P., a Delaware limited partnership, relating to the operations of Reckson
Service Industries, Inc.
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lender to commit to lend to
the Borrower up to $100 million on a revolving basis for acquisitions of assets
and general corporate purposes; and
WHEREAS, the Lender is willing to make revolving credit loans on the
terms and conditions provided herein;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions.
(a) Terms Generally. The definitions ascribed to terms in this Agreement
apply equally to both the singular and plural forms of such terms. Whenever the
context may require, any pronoun shall be deemed to include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be interpreted as if followed by the phrase "without
limitation". The phrase "individually or in the aggregate" shall be deemed
general in scope and not to refer to any specific Section or clause of this
Agreement. All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require. The
table of contents, headings and captions herein shall not be given effect in
interpreting or construing the provisions of this Agreement. Except as otherwise
expressly provided herein, all references to "dollars" or "$" shall be deemed
references to the lawful money of the United States of America.
(b) Other Terms. The following terms have the meanings ascribed to them
below or in the Sections of this Agreement indicated below:
"Adjusted Indebtedness" means, with respect to the Borrower, the
Borrower's Indebtedness determined without regard for any amounts described
in clause (viii) of the definition of "Indebtedness."
"Affiliate" means, with respect to any Person, any other
Person that controls, is controlled by, or is under common control
with, such Person.
"Agreement" means this credit agreement, as it may be amended,
modified or supplemented from time to time.
"Available Commitment" means, on any day, an amount equal to
(i) the Commitment on such day minus (ii) the aggregate outstanding
principal amount of Loans on such day.
"Borrower" means Reckson Service Industries, Inc., a Delaware
corporation.
"Borrowing Date" means, with respect to any Loan, the Business
Day set forth in the relevant Borrowing Request as the date upon which
the Borrower desires to borrow such Loan;
"Borrowing Request" means a request by the Borrower for a
Loan, which shall specify (i) the requested Borrowing Date and (ii) the
aggregate amount of such Loan.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in The City of New York are
authorized by law to close.
"Capital Lease Obligations" means, with respect to any Person,
the obligation of such Person to pay rent or other amounts under any
lease with respect to any property (whether real, personal or mixed)
acquired or leased by such Person that is required to be accounted for
as a liability on a consolidated balance sheet of such Person.
"Commercial Services" means businesses that provide services
for occupants of office, industrial and other property types that
Reckson may not be permitted to provide under Federal tax laws
applicable to a real estate investment trust or that have not
traditionally been provided by Reckson.
"Commitment" means $100 million, as such amount may be reduced
from time to time pursuant to Section 2.3.
"Commitment Termination Date" means the earlier to occur of
(i) May __, 2003 and (ii) the date, if any, on which the Commitment is
terminated.
"Confidential Information" means information delivered to the
Lender by or on behalf of the Borrower in connection with the
transactions contemplated by or otherwise pursuant to this Agreement
that is confidential or proprietary in nature at the time it is so
delivered or information obtained by the Lender in the course of its
review of the books or records of the Borrower contemplated herein;
provided that such term shall not include information W that was
publicly known or otherwise known to the Lender prior to the time of
such disclosure, (ii) that subsequently becomes publicly known through
no act or omission by the Lender or any Person acting on the Lender's
behalf, (iii) that otherwise becomes known to the Lender other than
through disclosure by the Borrower or (iv) that constitutes financial
information delivered to the Lender that is otherwise publicly
available.
"Default" means any event or circumstance which, with the
giving of notice or the passage of time, or both, would be an Event of
Default.
"EBITDA" means for any fiscal period, the Consolidated Net
Income or Consolidated Net Loss, as the case may be, for such fiscal
period, after restoring thereto amounts deducted for (a) extraordinary
losses (or deducting therefrom any amounts included therein on account
of extraordinary gains) and special charges, (b) depreciation and
amortization (including write-offs or write-downs) and special charges,
(c) the amount of interest expense of the Borrower and its
Subsidiaries, if any, determined on a consolidated basis in accordance
with GAAP, for such period on the aggregate principal amount of their
consolidated indebtedness, (d) the amount of tax expense of the
Borrower and its Subsidiaries, if any, determined on a consolidated
basis in accordance with GAAP, for such period and (e) the aggregate
amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries, if any, determined on a consolidated basis in accordance
with GAAP, for such period with respect to leases of real and personal
property.
"Effective Date" has the meaning assigned to such term in Section
6.1.
"Event of Default" has the meaning assigned to such term in
Section 8.1.
"GAAP" means generally accepted accounting principles, as set
forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entities as may be
approved by a significant segment of the accounting profession of the
United States of America.
"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.
"Guaranty" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
and including any obligation of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Indebtedness, (ii) to
purchase property, securities or services for the purpose of assuring
the holder of such Indebtedness of the payment of such Indebtedness or
(iii) to maintain working capital, equity capital or the financial
condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness. The term "Guaranteed" shall
have the corresponding meaning.
"Indebtedness" means, with respect to any Person, (i) all
obligations of such Person for borrowed money or for the deferred
purchase price of property or services (including all obligations,
contingent or otherwise, of such Person in connection with letters of
credit, bankers' acceptances, interest rate swap agreements, interest
rate cap agreements or other similar instruments, including currency
swaps) other than indebtedness to trade creditors and service providers
incurred in the ordinary course of business and payable on usual and
customary terms, (ii) all obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments, (iii) all
indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such
Person (even though the remedies available to the seller or lender
under such agreement are limited to repossession or sale of such
property), (iv) all Capital Lease Obligations of such Person, (v) all
obligations of the types described in clauses (i), (ii), (iii) or (iv)
above secured by (or for which the obligee has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in any
property (including accounts, contract rights and other intangibles)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, (vi) all preferred stock
issued by such Person which is redeemable, prior to full satisfaction
of the Borrower's obligations under this Agreement (including repayment
in full of the Loans and all interest accrued thereon), other than at
the option of such Person, valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends,
(vii) all Indebtedness of others Guaranteed by such Person and (viii)
all Indebtedness of any partnership of which such Person is a general
partner.
"Indemnitee" has the meaning assigned to such term in Section
4.4(b).
"Intercompany Agreement" means the intercompany agreement,
dated as of the date hereof, by and between the Borrower and the
Lender.
"Interest Period" means, with respect to any Loan, each
three-month period commencing on the date such Loan is made or at the
end of the preceding Interest Period, as the case may be; provided,
however, that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next Business Day, unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (iii) below, end on the last Business
Day of a calendar month; and
(iii) ____ any Interest Period that would otherwise end after the
Commitment Termination Date then in effect shall end on such
Commitment Termination Date.
"Lender" means Reckson Operating Partnership, L.P., a Delaware limited
partnership.
"Lien" means, with respect to any asset of a Person, (i) any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or on
such asset, (ii) the interest of a vendor or lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset,
and (iii) in the case of securities, any purchase option, call or similar right
of any other Person with respect to such securities.
"Loans" has the meaning assigned to such term in Section 2.1.
"Material Adverse Effect" means any material and adverse effect on (i)
the consolidated business, properties, condition (financial or otherwise) or
operations, present or prospective, of the Borrower and its Subsidiaries, (ii)
the ability of the Borrower timely to perform any of its material obligations,
or of the Lender to exercise any remedy, under this Agreement or (iii) the
legality, validity, binding nature or enforceability of this Agreement.
"Net Assets" means, with respect to the Borrower, the greater of (i)
the sum of the Borrower's paid-in capital and retained earnings or (ii) the
excess of the Value of all of the Borrower's assets of any kind over the
Borrower's Adjusted Indebtedness.
"Permitted Liens" means, collectively, the following: (i) Liens
expressly approved by the Lender, which approval shall not be unreasonably
withheld; (ii) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or that are being contested in good faith by
appropriate proceedings and for which adequate reserves are being maintained (in
accordance with GAAP); and (iii) Liens existing on the date hereof.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether Federal,
state, county, city, municipal or otherwise, including any instrumentality,
division, agency, body or department thereof).
"Prime Rate" means the prime rate (or if a range is given, the highest
prime rate) listed under "Money Rates" in THE WALL STREET JOURNAL for such date
or, if THE WALL STREET JOURNAL is not published on such date, then in THE WALL
STREET JOURNAL most recently published.
"Reckson" means Reckson Associates Realty Corp., a Maryland
corporation.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, chief accounting officer, treasurer or any vice
president, senior vice president or executive vice president of the General
Partner.
"RSVP-ROP Facility Agreement" means the credit agreement dated the
date hereof between Borrower and Lender in respect of the operations of Reckson
Strategic Venture Partners, LLC.
"SEC" means the Securities and Exchange Commission (or any successor
Governmental Authority).
"Subsidiary" means, at any time and with respect to any Person, any
other Person the shares of stock or other ownership interests of which having
ordinary voting power to elect a majority of the board of directors or with
respect to other matters of such Person are at the time owned, or the management
or policies of which is otherwise at the time controlled, directly or indirectly
through one or more intermediaries (including other Subsidiaries) or both, by
such first Person. Unless otherwise qualified or the context indicates clearly
to the contrary, all references to a "Subsidiary" or "Subsidiaries" in this
Agreement refer to a Subsidiary or Subsidiaries of the Borrower.
"Taxes" has the meaning assigned to such term in Section 4.3(a).
"Value" means, with respect to any asset owned by the Borrower, the
present value of the net cash flow reasonably projected by the Borrower to be
received with respect to its ownership of such assets, discounted at an interest
rate that the Borrower reasonably determines appropriate given the risks
associated with such asset and such projected net cash flow, but in no event at
an interest rate lower than ___% above the Prime Rate in effect at the time that
the determination of Value is made.
ARTICLE II.
THE REVOLVING CREDIT FACILITY
Section 2.1 Commitment and Loans. Until the Commitment Termination Date,
subject to the terms and conditions of this Agreement, the Lender agrees to make
revolving credit loans (collectively, "Loans") in dollars to the Borrower in an
aggregate principal amount at any one time outstanding not to exceed the
Commitment.
Section 2.2 Borrowing Procedure. In order to borrow a Loan, the Borrower
shall give a Borrowing Request to the Lender, by telephone, telex or telecopy or
in writing, not later than 10:30 A.M., New York time, on the third Business Day
before the Borrowing Date (or such later time or date as the Lender may in its
sole discretion permit). (If any Borrowing Request is made otherwise than in
writing, Borrower shall promptly confirm such Borrowing Request in writing.)
Subject to satisfaction, or waiver by the Lender, of each of the applicable
conditions precedent contained in Article VI, on the Borrowing Date the Lender
shall make available, in immediately available funds, to the Borrower the amount
of the requested Loan. Section 2.3 _______ Termination and Reduction of
Commitment . The Borrower may terminate the Commitment, or reduce the amount
thereof, by giving written notice to the Lender, not later than 5:00 P.M., New
York time, on the fifth Business Day prior to the date of termination or
reduction (or such later time or date as the Lender may in its sole discretion
permit). Section 2.4 _______ Repayment . Loans shall be repaid, together with
all accrued and unpaid interest thereon, on the Commitment Termination Date.
Section 2.5 _______ Optional Prepayment . The Borrower may prepay Loans by
giving notice (specifying the Loans to be prepaid in whole or in part, the
principal amount thereof to be prepaid and the date of prepayment) to the
Lender, by telephone, telex, telecopy or in writing not later than 12:00 noon,
New York time, on the fourth Business Day preceding the proposed date of
prepayment (or such later time or date as the Lender may in its sole discretion
permit). (If any such prepayment notice is made otherwise than in writing,
Borrower shall promptly confirm such notice in writing.) Each such prepayment
shall be at the aggregate principal amount of the principal being prepaid,
together with accrued interest on the principal being prepaid to the date of
prepayment and the amounts required by Section 4.3. Subject to the terms and
conditions of this Agreement, prepaid Loans may be reborrowed.
Section 2.3 Termination and Reduction of Commitment. The Borrower may
terminate the Commitment, or reduce the amount thereof, by giving written
notice to the Lender, not later than 5:00 P.M., New York time, on the fifth
Business Day prior to the date of termination or reduction (or such later
time or date as the Lender may in its sole discretion permit).
Section 2.4 Repayment. Loans shall be repaid, together with all
accruedl and unpaid interest thereon, on the Commitment Termination Date.
Section 2.5 Optional Prepayment. The Borrower may repay Loans by
giving notice (specifying the Loans to be prepaid in whole or in part,
the principal amount thereof to be prepaid and the date of prepayment)
to the Lender, by telephone, telex, telecopy or in writing not later than
12:00 noon, New York time, on the fourth Business Day preceding the proposed
date of prepayment (or such later time or date as the Lender may in its
sole discretion permit). (If any such prepayment notice is made otherwise
than in writing, Borrower shall promptly confirm such notice in writing.)
Each such prepayment shall be at the aggregate principal amount of the
principal being prepaid, together with accrued interest on the principal
being prepaid to the date of prepayment and the amounts required by Section
4.3. Subject to the terms and conditions of this Agreement, prepaid Loans
may be reborrowed.
ARTICLE III.
INTEREST AND FEES
Section 3.1 Interest Rate . Each Loan shall bear interest from the date
made until the date repaid, payable in arrears, with respect to Interest Periods
of three months or less, on the last day of such Interest Period, and with
respect to Interest Periods longer than three months, on the day which is three
months after the commencement of such Interest Period and on the last day of
such Interest Period, at a rate per annum equal to the greater of (i) the sum of
(x) 2% and (y) the Prime Rate for the applicable Interest Period and (ii) 12%,
with such 12% rate increasing to 12.48%, 12.98%, 13.50% and 14.04% as of May __
for the second, third, fourth and fifth years of this Agreement, respectively.
Notwithstanding the foregoing, if the amount of interest to be paid by the
Borrower to the Lender exceeds the amount of EBITDA of the Borrower for the
immediately preceding calendar quarter (ending the last day of September,
December, March, or June), the Borrower shall not be obligated to repay the
amount of interest in excess of EBITDA of the Borrower for such period. Any such
amount of unpaid interest shall be added to principal and shall accrue interests
thereon. Payments under the Notes shall be applied first to any fees, costs or
expenses due under the Notes or hereunder, then to interest, and then to
principal. Notwithstanding any other provision of this Agreement, all
outstanding principal and interest of the Loan and all other amounts payable
hereunder, if not sooner paid, shall be due and payable on the Commitment
Termination Date.
Section 3.2 Interest on Overdue Amounts . All overdue amounts (including
principal, interest and fees) hereunder, and, during the continuance of any
Event of Default that shall have occurred, each Loan, shall bear interest,
payable on demand, at a rate per annum equal to the greater of (i) the sum of
(1) 3% and (ii) Prime Rate for the applicable Interest Period and (ii) 13%, with
such 13% rate increasing to 13.48%, 13.98%, 14.50% and 15.04% for the second,
third, fourth and fifth years of this Agreement, respectively.
Section 3.3 Maximum Interest Rate . (a) Nothing in this Agreement shall
require the Borrower to pay interest at a rate exceeding the maximum rate
permitted by applicable law. Neither this Section nor Section 10.1 is intended
to limit the rate of interest payable for the account of the Lender to the
maximum rate permitted by the laws of the State of New York (or any other
applicable law) if a higher rate is permitted with respect to the Lender by
supervening provisions of U.S. Federal law.
(b) If the amount of interest payable for the account of the Lender on any
interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to this Article III, would exceed the
maximum amount permitted by applicable law to be charged by the Lender, the
amount of interest payable for its account on such interest payment date shall
automatically be reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of the Lender in
respect of any interest computation period is reduced pursuant to Section 3.3(b)
and the amount of interest payable for its account in respect of any subsequent
interest computation period would be less than the maximum amount permitted by
law to be charged by the Lender, then the amount of interest payable for its
account in respect of such subsequent interest computation period shall be
automatically increased to such maximum permissible amount; provided that at no
time shall the aggregate amount by which interest paid for the account of the
Lender has been increased pursuant to this Section 3.3(c) exceed the aggregate
amount by which interest paid for its account has theretofore been reduced
pursuant to Section 3.3(b).
ARTICLE IV.
DISBURSEMENT AND PAYMENT
Section 4.1 Method and Time of Payments .
(a) All payments by the Borrower hereunder shall be made without setoff or
counterclaim to the Lender, for its account, in dollars and in immediately
available funds to the account of the Lender theretofore designated in writing
to the Borrower not later than 12:00 noon, New York time, on the date when due
or, in the case of payments pursuant to Sections 4.3 and 4. 4 or payments
otherwise specified as payable upon demand, forthwith upon written demand
therefor.
(b) Whenever any payment from the Borrower shall be due on a day that is
not a Business Day, the date of payment thereof shall be extended to the next
succeeding Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
Section 4.2 Compensation for Losses . (a) If (i) the Borrower prepays
Loans, (ii) the Borrower revokes any Borrowing Request or (iii) Loans (or
portions thereof) shall become or be declared to be due prior to the scheduled
maturity thereof, then the Borrower shall pay to the Lender an amount that will
compensate the Lender for any loss (other than lost profit) or premium or
penalty incurred by the Lender as a result of such prepayment, declaration or
revocation in respect of funds obtained for the purpose of making or maintaining
the Lender's Loans, or any portion thereof. Such compensation shall include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so paid or prepaid, or not borrowed, for the period
from the date of such payment or prepayment or failure to borrow to the last day
of such Interest Period (or, in the case of a failure to borrow, the Interest
Period that would have commenced on the expected Borrowing Date) in each case at
the applicable rate of interest for such Loan over (ii) the amount of interest
(as reasonably determined by the Lender) that would have accrued on such amount
were it on deposit for a comparable period with leading banks in the London
interbank market.
(b) If requested by the Borrower, in connection with a payment due pursuant
to this Section 4.2, the Lender shall provide to the Borrower a certificate
setting forth in reasonable detail the amount required to be paid by the
Borrower to the Lender and the computations made by the Lender to determine such
amount. In the absence of manifest error, such certificate shall be conclusive
as to the amount required to be paid.
Section 4.3 Withholding and Additional Costs .
(a) Withholding. All payments under this Agreement (including payments of
principal and interest) shall be payable to the Lender free and clear of any and
all present and future taxes, levies, imposts, duties, deductions, withholdings,
fees, liabilities and similar charges (collectively, "Taxes") . If any Taxes are
required to be withheld or deducted from any amount payable under this
Agreement, then the amount payable under this Agreement shall be increased to
the amount WHICH, AFTER deduction from such increased amount of all Taxes
required to be withheld or deducted therefrom, will yield to the Lender the
amount stated to be payable under this Agreement. The Borrower shall also hold
the Lender harmless and indemnify it for any stamp or other taxes with respect
to the preparation, execution, delivery, recording, performance or enforcement
of this Agreement (all of WHICH SHALL be included within "Taxes") . If any of
the Taxes specified in this Section 4.3(a) are paid by the Lender, the Borrower
shall, upon demand of the Lender, promptly reimburse the Lender for such
payments, together with any interest, penalties and expenses incurred in
connection therewith. The Borrower shall deliver to the Lender certificates or
other valid vouchers for all Taxes or other charges deducted from or paid with
respect to payments made by the Borrower hereunder.
(b) Additional Costs. Subject to Section 4.3(c), and without duplication of
any amounts payable described in Section 4.2 or 4.3(a), if after the date hereof
any change in any law or regulation or in the interpretation thereof by any
court or administrative or Governmental Authority charged with the
administration thereof or the enactment of any law or regulation shall either
(1) impose, modify or deem applicable any reserve, special deposit or similar
requirement against the Lender's Commitment or Loans or (2) impose on the Lender
any other condition regarding this Agreement, its Commitment or the Loans and
the result of any event referred to in clause (1) or (2) shall be to increase
the cost to the Lender of maintaining its Commitment or any Loans made by the
Lender (which increase in cost shall be calculated in accordance with the
Lender's reasonable averaging and attribution methods) by an amount which the
Lender deems to be material, then, upon demand by the Lender, the Borrower shall
pay to the Lender an amount equal to such increase in cost.
(c) Certificate, Etc. If requested by the Borrower, in connection with any
demand for payment pursuant to this Section 4.3, the Lender shall provide to the
Borrower a certificate setting forth in reasonable detail the basis for such
demand, the amount required to be paid by the Borrower to the Lender, the
computations made by the Lender to determine such amount and satisfaction of the
conditions set forth in the next sentence. Anything to the contrary herein
notwithstanding, the Lender shall not have the right to demand any payment or
compensation under this Section 4.3 (i) with respect to any period more than 180
days prior to the date it has made a demand pursuant to this Section 4.3, and
(ii) to the extent that the Lender determines in good faith that the interest
rate on the relevant Loans appropriately accounts for any increased cost or
reduced rate of return. In the absence of manifest error, the certificate
referred to above shall be conclusive as to the amount required to be paid.
Section 4.4 Expenses; Indemnity. (a) The Borrower agrees: (i) to pay or
reimburse the Lender for all reasonable out-of-pocket costs and expenses
incurred in connection with the preparation and execution of, and any amendment,
supplement or modification to, this Agreement and any other documents prepared
in connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Lender; and (ii) to
pay or reimburse the Lender for all reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement and any such other documents, including, without limitation, the
reasonable fees and disbursements of counsel to the Lender. The Borrower also
agrees to indemnify the Lender against any transfer taxes, documentary taxes,
assessments or charges made by any Governmental Authority by reason of the
execution and delivery of this Agreement.
(b) The Borrower agrees to indemnify the Lender and its directors,
officers, partners, employees, agents and Affiliates (for purposes of this
paragraph, each, an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all claims, liabilities, damages, losses, costs, charges and
expenses (including fees and expenses of counsel) incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result
of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated by this Agreement, the performance by the parties
thereto of their respective obligations under this Agreement or the consummation
of the transactions and the other transactions contemplated by this Agreement,
(ii) the use of the proceeds of the Loans or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) All amounts due under this Section 4.4 shall be payable in immediately
available funds upon written demand therefor.
Section 4.5 Survival. The provisions of Sections 4.2, 4.3 and 4.4 shall
remain operative and in full force and effect regardless of the expiration of
the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the reduction or termination of the
Commitment, the invalidity or unenforceability of any term or provision of this
Agreement, or any investigation made by or on behalf of the Lender.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties . The Borrower represents and
warrants to the Lender as follows:
(a) Good Standing and Power. The Borrower and each Subsidiary is a limited
partnership or corporation, duly organized and validly existing in good standing
under the laws of the jurisdiction of its organization; each has the power to
own its property and to carry on its business as now being conducted; and each
is duly qualified to do business and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it therein or in which
the transaction of its business makes such qualification necessary, except where
the failure to be so qualified, or to be in good standing, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(b) Authority. The Borrower has full power and authority to execute and
deliver, and to incur and perform its obligations under, this Agreement, which
has been duly authorized by all proper and necessary action. No consent or
approval of limited partners is required as a condition to the validity or
performance of, or the exercise by the Lender of any of its rights or remedies
under, this Agreement.
(c) Authorizations. All authorizations, consents, approvals, registrations,
notices, exemptions and licenses with or from any Governmental Authority or
other Person necessary for the execution, delivery and performance by the
Borrower of, and the incurrence and performance of each of its obligations
under, this Agreement, and the exercise by the Lender of its remedies under this
Agreement have been effected or obtained and are in full force and effect.
(d) Binding Obligation. This Agreement constitutes the valid and legally
binding obligation of the Borrower enforceable in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(e) Litigation. There are no proceedings or investigations now pending or,
to the knowledge of the Borrower, threatened before any court or arbitrator or
before or by any Governmental Authority which, individually or in the aggregate,
if determined adversely to the interests of the Borrower or any Subsidiary,
could reasonably be expected to have a Material Adverse Effect.
(f) No Conflicts . There is no statute, regulation, rule, order or
judgment, and no provision of any agreement or instrument binding upon the
Borrower or any Subsidiary, or affecting their properties, and no provision of
the certificate of limited partnership, certificate of incorporation, agreement
of limited partnership or by-laws (or similar constitutive instruments) of the
Borrower or any Subsidiary, that would prohibit, conflict with or in any way
impair the execution or delivery of, or the incurrence or performance of any
obligations of the Borrower under, this Agreement, or result in or require the
creation or imposition of any Lien on property of the Borrower or any Subsidiary
as a consequence of the execution, delivery and performance of this Agreement.
(g) Taxes. The Borrower and the Subsidiaries each has filed or caused to be
filed all tax returns that are required to be filed and paid all taxes that are
required to be shown to be due and payable on said returns or on any assessment
made against it or any of its property and all other taxes, assessments, fees,
liabilities, penalties or other charges imposed on it or any of its property by
any Governmental Authority, except for any taxes, assessments, fees,
liabilities, penalties or other charges which are being contested in good faith
and (unless the amount thereof is not material to the Borrower's consolidated
financial condition) for which adequate reserves have been established in
accordance with GAAP.
(h) Properties. The Borrower and the Subsidiaries each has good and
marketable title to, or valid leasehold interests in, all of its respective
properties and assets. All such assets and properties are so owned or held free
and clear of all Liens, except Permitted Liens.
(i) Compliance with Laws and Charter Documents. Neither the Borrower nor
any Subsidiary is, or as a result of performing any of its obligations under
this Agreement will be, in violation of (a) any law, statute, rule, regulation
or order of any Governmental Authority applicable to it or its properties or
assets or (b) its certificate of limited partnership, certificate of
incorporation, agreement of limited partnership, by-laws or any similar
document.
(j) No Material Adverse Effect. Since June __, 1997, there has not occurred
or arisen any event, condition or circumstance that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(k) Disclosure. All information relating to the Borrower or its
Subsidiaries delivered in writing to the Lender in connection with the
negotiation, execution and delivery of this Agreement is true and complete in
all material respects. There is no material fact of which the Borrower is aware
which, individually or in the aggregate, would reasonably be expected adversely
to influence the Lender's credit analysis relating to the Borrower and its
Subsidiaries which has not been disclosed to the Lender in writing.
Section 5.2 Survival. All representations and warranties made by the
Borrower in this Agreement, and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement, shall be
considered to have been relied upon by the Lender, (ii) survive the making of
Loans regardless of any investigation made by, or on behalf of, the Lender and
(iii) continue in full force and effect as long as the Commitment has not been
terminated and, thereafter, so long as any Loan, fee or other amount payable
under this Agreement remains unpaid.
ARTICLE VI.
CONDITIONS PRECEDENT
Section 6.1 Conditions to the Availability of the Commitment. The
obligations of the Lender hereunder are subject to, and the Lender's Commitment
shall not become available until the earliest date (the "Effective Date") on
which each of the following conditions precedent shall have been satisfied or
waived in writing by the Lender:
(a) This Agreement. The Lender shall have received this Agreement duly
executed and delivered by the Borrower.
(b) Certificate of Incorporation and By-Laws. The Lender shall have
received the following:
(i) a copy of the Certificate of Incorporation of the Borrower, as in
effect on the Effective Date, certified by the Secretary of State of
Delaware, and a certificate from such Secretary of State as to the good
standing of the Borrower, in each case as of a date reasonably close to the
Effective Date; and
(ii) a certificate of a Responsible Officer of the Borrower, dated the
Effective Date, and stating that attached thereto is a true and complete
copy of the By-Laws of the Borrower as in effect on such date.
(c) Representations and Warranties . The representations and warranties
contained in Section 5.1 shall be true and correct on the Effective Date, and
the Lender shall have received a certificate, signed by a Responsible Officer of
the Borrower, to that effect.
(d) Other Documents. The Lender shall have received such other
certificates, opinions and other documents as the Lender reasonably may require.
(e) REIT Status of Reckson . The borrowing shall not, in the sole judgment of
the Lender, endanger Reckson's status as a REIT.
(e) REIT status of Reckson. The borrowing shall not, in the sole
judgment of the Lender, endanger Reckson's status as a REIT.
(f) Certain Loans Subject to Reckson's Approval. In respect of any Loan or
Loans aggregating in excess of $10 million, any single Commercial Service, as
well as any Loan relating to an investment by Borrower in any area other than
Commercial Services, Reckson shall have approved the Lender's making such Loan
in its sole discretion.
Section 6.2 Conditions to All Loans. The obligations of the Lender to make
each Loan are subject to the conditions precedent that, on the date of each Loan
and after giving effect thereto, each of the following conditions precedent
shall have been satisfied, or waived in writing by the Lender:
(a) Borrowing Request. The Lender shall have received a Borrowing Request
in accordance with the terms of this Agreement.
(b) No Default. No Default or Event of Default shall have occurred and be
continuing, nor shall any Default or Event of Default occur as a result of the
making of such Loan.
(c) Debt-to-Equity Ratio. The Lender shall have received from the Borrower
a certificate demonstrating that the ratio of the Borrower's Adjusted
Indebtedness to the Borrower's Net Assets, taking into account the requested
Loan and the assets, if any, to be acquired by the Borrower with the proceeds of
such Loan, shall not exceed 4-to-1.
(d) Representations and Warranties; Covenants. The representations and
warranties contained in Section 5. 1 shall have been true and correct when made
and (except to the extent that any representation or warranty speaks as of a
date certain) shall be true and correct on the Borrowing Date with the same
effect as though such representations and warranties were made on such Borrowing
Date; and the Borrower shall have complied with all of its covenants and
agreements under this Agreement.
Section 6.3 Satisfaction of Conditions Precedent. Each of (i) the delivery
by the Borrower of a Borrowing Request (unless the Borrower notifies the Lender
in writing to the contrary prior to the Borrowing Date) and (ii) the acceptance
of the proceeds of a Loan shall be deemed to constitute a certification by the
Borrower that, as of the Borrowing Date, each of the conditions precedent
contained in Section 6. 2 has been satisfied with respect to the Loan then being
made.
ARTICLE VII.
COVENANTS
Section 7.1 Affirmative Covenants. Until satisfaction in full of all the
obligations of the Borrower under this Agreement and termination of the
Commitment of the Lender hereunder, the Borrower will:
(a) Financial Statements; Compliance Certificates . Furnish to the Lender:
(i) as soon as available, but in no event more than 60 days following
the end of each of the first three quarters of each fiscal year, copies of
the Borrower's Quarterly Report on Form 10-Q being filed with the SEC,
which shall include a consolidated balance sheet and consolidated income
statement of the Borrower and the Subsidiaries for such quarter;
(ii) as soon as available, but in no event more than 120 days
following the end of each fiscal year, a copy of the Borrower's Annual
Report on Form 10-K being filed with the SEC, which shall include the
consolidated financial statements of the Borrower and the Subsidiaries,
together with a report thereon by Ernst & Young LLP (or another firm of
independent certified public accountants reasonably satisfactory to the
Lender), for such year;
(iii) within five Business Days of any Responsible Officer of the
Borrower obtaining knowledge of any Default or Event of Default, if such
Default or Event of Default is then continuing, a certificate of a
Responsible Officer of the Borrower stating that such certificate is a
"Notice of Default" and setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect thereto; and
(iv) such additional information, reports or statements, regarding the
business, financial condition or results of operations of the Borrower and
its Subsidiaries, as the Lender from time to time may reasonably request.
(b) Existence. Except as permitted by Section 7. 2(a), maintain its
existence in good standing and qualify and remain qualified to do business in
each jurisdiction in which the character of the properties owned or leased by it
therein or in which the transaction of its business is such that the failure to
qualify, individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(c) Compliance with Law and Agreements. Comply, and cause each Subsidiary
to comply, with all applicable laws, ordinances, orders, rules, regulations and
requirements of all Governmental Authorities and with all agreements except
where the necessity of compliance therewith is contested in good faith by
appropriate proceedings or where the failure to comply therewith, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(d) Authorizations. Obtain, make and keep in full force and effect all
authorizations from and registrations with Governmental Authorities required for
the validity or enforceability of this Agreement.
(e) Inspection. Permit, and cause each Subsidiary to permit, the Lender to
have one or more of its officers and employees, or any other Person designated
by the Lender, to visit and inspect any of the properties of the Borrower and
the Subsidiaries and to examine the minute books, books of account and other
records of the Borrower and the Subsidiaries, and to photocopy extracts from
such minute books, books of account and other records, and to discuss its
affairs, finances and accounts with its officers and with the Borrower's
independent accountants, during normal business hours and at such other
reasonable times, for the purpose of monitoring the Borrower's compliance with
its obligations under this Agreement.
(f) Maintenance of Records. Keep, and cause each Subsidiary to keep, proper
books of record and account in which full, true and correct entries will be made
of all dealings or transactions of or in relation to its business and affairs.
(g) Notice of Defaults and Adverse Developments. Promptly notify the Lender
upon the discovery by any Responsible officer of the occurrence of (i) any
Default or Event of Default; (ii) any event, development or circumstance whereby
the financial statements most recently furnished to the Lender fail in any
material respect to present fairly, in accordance with GAAP, the financial
condition and operating results of the Borrower and the Subsidiaries as of the
date of such financial statements; (iii) any material litigation or proceedings
that are instituted or threatened (to the knowledge of the Borrower) against the
Borrower or any Subsidiary or any of their respective assets; (iv) any event,
development or circumstance which, individually or in the aggregate, could
reasonably be expected to result in an event of default (or, with the giving of
notice or lapse of time or both, an event of default) under any Indebtedness and
the amount thereof; and (v) any other development in the business or affairs of
the Borrower or any Subsidiary if the effect thereof would reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect;
in each case describing the nature thereof and the action the Borrower proposes
to take with respect thereto.
Section 7.2 Negative Covenants. Until satisfaction in full of all the
obligations of the Borrower under this Agreement and termination of the
Commitment of the Lender hereunder, the Borrower will not:
(a) Mergers, Consolidations and Sales of Assets. Wind up, liquidate or
dissolve its affairs or enter into any merger, consolidation or share exchange,
or convey, sell, lease or otherwise dispose of (or agree to do any of the
foregoing at any future time), whether in one or a series of transactions, all
or any substantial part of its assets, or permit any Subsidiary so to do, unless
such transaction or series of transactions are expressly approved by the Lender,
which approval shall not be unreasonably withheld.
(b) Liens. Create, incur, assume or suffer to exist any Lien upon or with
respect to any of its property or assets, whether now owned or hereafter
acquired, or assign or otherwise convey any right to receive income, except
Permitted Liens.
(c) Indebtedness. Create, incur, issue, assume, guarantee or suffer to
exist any Indebtedness, [or permit any Subsidiary so to do], except:
(i) Indebtedness to the Lender under this Agreement or under the
RSVP-ROP Facility Agreement,
(ii) Non-recourse Indebtedness of the Borrower and any Subsidiary
secured by mortgages, encumbrances or liens specifically permitted by
Section 7. 2(b), and
(iii) Indebtedness expressly approved by the Lender in writing,
which approval may be withheld in the Lender's sole discretion.
(d) Dividends. Declare any dividends on any of its shares of capital stock
unless such dividend or distribution is expressly approved in writing by the
Lender.
(e) Certain Amendments. Amend, modify or waive, or permit to be amended,
modified or waived, any provision of its Certificate of Incorporation unless,
within not less than 5 days prior to such amendment, modification or waiver (or
such later time as the Lender may in its sole discretion permit), the Borrower
shall have given the Lender notice thereof, including all relevant terms and
conditions thereof, and the Lender shall have consented in writing thereto.
ARTICLE VIII.
EVENTS OF DEFAULT
Section 8.1 Events of Default. If one or more of the following events
(each, an "Event of Default") shall occur:
(a) The Borrower shall fail duly to pay any principal of any Loan when due,
whether at maturity, by notice of intention to prepay or otherwise; or
(b) The Borrower shall fail duly to pay any interest, fee or any other
amount payable under this Agreement within two days after the same shall be due;
or
(c) Borrower shall fail duly to observe or perform any term, covenant, or
agreement contained in Section 7. 2; or
(d) The Borrower shall fail duly to observe or perform any other term,
covenant or agreement contained in this Agreement, and such failure shall have
continued unremedied for a period of 30 days; or
(e) Any representation or warranty made or deemed made by the Borrower in
this Agreement, or any statement or representation made in any certificate,
report or opinion delivered by or on behalf of the Borrower in connection with
this Agreement, shall prove to have been false or misleading in any material
respect when so made or deemed made; or
(f) The Borrower shall fail to pay any Indebtedness (other than obligations
here under) in an amount of $100,000 or more when due; or any such Indebtedness
having an aggregate principal amount outstanding of $100,000 or more shall
become or be declared to be due prior to the expressed maturity thereof; or
(g) An involuntary case or other proceeding shall be commenced against the
Borrower seeking liquidation, reorganization or other relief with respect to it
or its debts under any applicable bankruptcy, insolvency, reorganization or
similar law or seeking the appointment of a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of it or any substantial
part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of more than 60 days; or an order or
decree approving or ordering any of the foregoing shall be entered and continued
unstayed and in effect; or
(h) The Borrower shall commence a voluntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or similar law or any other
case or proceeding to be adjudicated a bankrupt or insolvent, or any of them
shall consent to the entry of a decree or order for relief in respect of the
Borrower in an involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against any of them, or any of them
shall file a petition or answer or consent seeking reorganization or relief
under any applicable law, or any of them shall consent to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Borrower
or any substantial part of its property, or the Borrower shall make an
assignment for the benefit of creditors, or the Borrower shall admit in writing
its inability to pay its debts generally as they become due, or the Borrower
shall take corporate action in furtherance of any such action;
(i) One or more judgments against the Borrower or attachments against its
property, which in the aggregate exceed $100,000, or the operation or result of
which could be to interfere materially and adversely with the conduct of the
business of the Borrower remain unpaid, unstayed on appeal, undischarged,
unbonded, or undismissed for a period of more than 30 days; or
(j) Any court or governmental or regulatory authority shall have enacted,
issued, promulgated, enforced or entered any statute, rule, regulation,
judgment, decree, injunction or other order (whether temporary, preliminary or
permanent) which is in effect and which prohibits, enjoins or otherwise
restricts, in a manner that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, any of the transactions
contemplated under this Agreement; or
(k) Any Event of Default shall occur and be continuing under the RSVP-ROP
Facility Agreement.
then, and at any time during the continuance of such Event of Default, the
Lender may, by written notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitment and (ii) declare any Loans then outstanding to be due, whereupon the
principal of the Loans so declared to be due, together with accrued interest
thereon and any unpaid amounts accrued under this Agreement, shall become
forthwith due, without presentment, demand, protest or any other notice of any
kind (all of which are hereby expressly waived by the Borrower); provided that,
in the case of any Event of Default described in Section 8. 1(g) or (h)
occurring with respect to the Borrower, the Commitment shall automatically and
immediately terminate and the principal of all Loans then outstanding, together
with accrued interest thereon and any unpaid amounts accrued under this
Agreement, shall automatically and immediately become due without presentment,
demand, protest or any other notice of any kind (all of which are hereby
expressly waived by the Borrower).
ARTICLE IX.
EVIDENCE OF LOANS; TRANSFERS
Section 9.1 Evidence of Loans. (a) The Lender shall maintain accounts
evidencing the indebtedness of the Borrower to the Lender resulting from each
Loan made by the Lender from time to time, including the amounts of principal
and interest payable and paid to the Lender in respect of Loans.
(b) The Lender's written records described above shall be available for
inspection during ordinary business hours by the Borrower from time to time upon
reasonable prior notice to the Lender.
(c) The entries made in the Lender's written or electronic records and the
foregoing accounts shall be prima facie evidence of the existence and amounts of
the indebtedness of the Borrower therein recorded; provided, however, that the
failure of the Lender to maintain any such account or such records, as
applicable, or any error therein, shall not in any manner affect the validity or
enforceability of any obligation of the Borrower to repay any Loan actually made
by the Lender in accordance with the terms of this Agreement.
ARTICLE X.
MISCELLANEOUS
Section 10.1 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 10.2 Waiver of Jury. THE BORROWER AND THE LENDER EACH HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, [THE NOTES] OR THE
RELATIONSHIPS ESTABLISHED HEREUNDER.
Section 10.3 Jurisdiction and Venue; Service of Process. (a) The Borrower
and the Lender each hereby irrevocably submits to the non-exclusive jurisdiction
of any state or federal court in the Borough of Manhattan, The City of New York
for the purpose of any suit, action, proceeding or judgment relating to or
arising out of this Agreement and to the laying of venue in the Borough of
Manhattan The City of New York. The Borrower and the Lender each hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection to the laying of the venue of any such suit, action or proceeding
brought in the aforesaid courts and hereby irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
(b) Borrower agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 10.7 or at such other address of
which the Lender shall have been notified pursuant thereto. The Borrower further
agrees that nothing herein shall affect the right to effect service of process
in any other manner permitted by law or shall limit the right to ▇▇▇ in any
other jurisdiction; and
(c) The Borrower waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential damages.
Section 10.4 Confidentiality. The Lender agrees (on behalf of itself and
each of its Affiliates, partners, officers, employees and representatives) to
use its best efforts to keep confidential, in accordance with their customary
procedures for handling confidential information of this nature and in
accordance with commercially reasonable business practices, any Confidential
Information; provided that nothing herein shall limit the disclosure of any such
information (i) to the extent required by statute, rule, regulation or judicial
process, (ii) to counsel for the Lender, (iii) to auditors or accountants, (iv)
by the Lender to an Affiliate thereof, or (v) in connection with any litigation
relating to enforcement of this Agreement; provided further, that, unless
specifically prohibited by applicable law or court order, the Lender shall,
prior to disclosure thereof, notify the Borrower of any request for disclosure
of any Confidential Information (x) by any Governmental Authority or
representative thereof or (y) pursuant to legal process.
Section 10.5 Amendments and Waivers. (a) Any provision of this Agreement
may be amended, modified, supplemented or waived, but only by a written
amendment or supplement, or written waiver, signed by the Borrower and the
Lender.
(b) Except to the extent expressly set forth therein, any waiver shall be
effective only in the specific instance and for the specific purpose for which
such waiver is given.
Section 10.6 Cumulative Rights; No Waiver. Each and every right granted to
the Lender hereunder or under any other document delivered in connection
herewith, or allowed it by law or equity, shall be cumulative and not exclusive
and may be exercised from time to time. No failure on the part of the Lender to
exercise, and no delay in exercising, any right will operate as a waiver
thereof, nor will any single or partial exercise by the Lender of any right
preclude any other or future exercise thereof or the exercise of any other
right.
Section 10.7 Notices. Any communication, demand or notice to be given
hereunder will be duly given when delivered in writing or by telecopy to a party
at its address as indicated below or such other address as such party may
specify in a notice to the other party hereto. A communication, demand or notice
given pursuant to this Agreement shall be addressed:
If to the Borrower, to:
Reckson Service Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
If to the Lender, to:
Reckson Operating Partnership, L.P.
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Attention: Chief Financial Officer
This Section 10. 7 shall not apply to notices referred to in Article
II of this Agreement, except to the extent set forth therein.
Section 10.8 Certain Acknowledgments. The Borrower hereby confirms and
acknowledges that (a) the Lender does not have any fiduciary or similar
relationship to the Borrower by virtue of this Agreement and the transactions
contemplated herein and that the relationship established by this Agreement
between the Lender and the Borrower is solely that of creditor and debtor and
(b) no joint venture exists between the Borrower and the Lender by virtue of
this Agreement and the transactions contemplated herein.
Section 10.9 Separability . In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 10.10 Parties in Interest. This Agreement shall be binding upon and
inure to the benefit of the Borrower and the Lender and their respective
successors and assigns, except that the Borrower may not assign any of its
rights hereunder without the prior written consent of the Lender, and any
purported assignment by the Borrower without such consent shall be void.
Section 10.11 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all the counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
RECKSON SERVICE INDUSTRIES, INC.,
as Borrower
By:
Name:
Title:
RECKSON OPERATING PARTNERSHIP, L.P.,
as Lender
By: RECKSON ASSOCIATES REALTY CORP.,
its general partner
By:
Name:
Title: