UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 12, 2005
RECKSON ASSOCIATES REALTY CORP.
and
RECKSON OPERATING PARTNERSHIP, L.P.
(Exact name of each Registrant as specified in its Charter)
Reckson Associates Realty Corp. - Maryland Reckson Associates Realty Corp. -
Reckson Operating Partnership, L.P. - Delaware 11-3233650
(State or other jurisdiction of incorporation or Reckson Operating Partnership, L.P. -
organization) 11-3233647
(IRS Employer ID Number)
225 Broadhollow Road 11747
Melville, New York (Zip Code)
(Address of principal executive offices)
1-13762
(Commission File Number)
(631) 694-6900
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrants under any of
the following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
Item 2.01. Completion of Acquisition or Disposition of Assets.
On May 12, 2005, we completed the acquisition of a 1.4 million square
foot, 50-story, Class A office tower located at One Court Square, Long Island
City, a sub-market of New York City, from Citibank, N.A. (the "Seller"). The
purchase price for One Court Square was approximately $470 million,
inclusive of transfer taxes and transactional costs. One Court Square is 100%
leased to the Seller pursuant to a 15-year net lease. The lease contains
partial cancellation options effective during years six and seven for up to an
aggregate of 20% of the leased space and in years nine and ten for up to an
additional 20% of the leased space, subject to notice and penalty.
In addition, on May 12, 2005 we obtained an unsecured $470 million
term loan agreement (the "Bridge Facility"), with Citicorp North America,
Inc., as administrative agent ("Citicorp"), and Citigroup Global Markets Inc.,
as lead arranger and sole bookrunner. We have agreed to pay to Citicorp a
one-time commitment fee equal to 7.5 basis points on the amount, if any,
outstanding under the Bridge Facility on the first business day after the six
month anniversary of the closing of the Bridge Facility. The Bridge Facility
has terms including interest rates and financial covenants substantially
similar to our existing revolving credit facility. The Bridge Facility matures
on May 11, 2006.
On May 12, 2005, we also amended our unsecured revolving credit facility
to increase the percentage of Total Indebtedness to Total Value (as each term
is defined in our revolving credit facility) that we may incur thereunder at
any one time from 55% to 60%, which is consistent with the similar financial
covenant contained in the Bridge Facility.
Item 9.01. Financial Statements and Exhibits
(b) Pro forma financial information
The accompanying financial statements present the unaudited pro-forma
balance sheet of Reckson Associates Realty Corp. as of March 31, 2005, and the
unaudited pro-forma statements of income for the year ended December 31, 2004
and the three months ended March 31, 2005.
The unaudited pro-forma balance sheet as of March 31, 2005 is presented
as if the acquisition of One Court Square had occurred on March 31, 2005. The
unaudited pro-forma statements of income for the year ended December 31, 2004
and the three months ended March 31, 2005 are presented as if the acquisition
of One Court Square had occurred on January 1, 2004 and carried forward
through March 31, 2005.
The pro-forma information is unaudited and is not necessarily indicative
of the results which actually would have occurred if the aforementioned
transaction had been consummated at the beginning of the period presented, nor
does it purport to represent the financial position and results of operations
for future periods. The pro-forma information should be read in conjunction
with the historical financial statements of Reckson Associates Realty Corp.
2
RECKSON ASSOCIATES REALTY CORP
PRO-FORMA BALANCE SHEETS MARCH 31, 2005
(UNAUDITED AND IN THOUSANDS, EXCEPT SHARE AMOUNTS)
Reckson Pro-Forma Pro-Forma
Historical Adjustments Condensed
(A) (B)
----------------- ------------------ -------------
Assets:
Commercial real estate properties, at cost:
Land $ 419,846 $ 119,138 $ 538,984
Building and improvements 2,755,580 303,434 3,059,014
Developments in progress:
Land 98,176 - 98,176
Development costs 22,124 - 22,124
Furniture, fixtures and equipment 12,504 - 12,504
----------------- ------------------ -------------
3,308,230 422,572 3,730,802
Less accumulated depreciation (584,949) - (584,949)
----------------- ------------------ -------------
Investments in real estate, net of accumulated depreciation 2,723,281 422,572 3,145,853
Properties and related assets held for sale, net of accumulated depreciation 58,469 - 58,469
Investment in a real estate joint venture 6,808 - 6,808
Investment in notes receivable 113,254 - 113,254
Investments in affiliate loans and joint ventures 60,230 - 60,230
Cash and cash equivalents 25,537 1,143 26,680
Tenant receivables 10,427 - 10,427
Deferred rents receivable 139,348 - 139,348
Prepaid expenses and other assets 54,061 51,424 105,485
Contract and land deposits and pre-acquisition costs 256 - 256
Deferred leasing and loan costs 81,074 125 81,199
----------------- ------------------ -------------
Total Assets $ 3,272,745 $ 475,264 $ 3,748,009
================= ================== =============
Liabilities:
Mortgage notes payable $ 606,723 $ - $ 606,723
Unsecured credit facility 357,500 - 357,500
Senior unsecured notes 698,039 - 698,039
Unsecured bridge facility - 470,000 470,000
Liabilities associated with properties held for sale 757 - 757
Accrued expenses and other liabilities 65,473 601 66,074
Deferred revenues and tenant security deposits 54,015 4,663 (C) 58,678
Dividends and distributions payable 36,137 - 36,137
----------------- ------------------ -------------
Total Liablilities $ 1,818,644 $ 475,264 $ 2,293,908
----------------- ------------------ -------------
Minority partners' interests in consolidated partnerships 213,297 - 213,297
Preferred unit interest in the operating partnership 1,200 - 1,200
Limited partners' minority interest in the operating partnership 42,147 - 42,147
----------------- ------------------ -------------
Total Minority Interests $ 256,644 $ - $ 256,644
----------------- ------------------ -------------
Commitments and contingencies - - -
Stockholders' Equity:
Preferred stock, $.01 par value, 25,000,000 shares authorized - - -
Common Stock, $.01 par value, 100,000,000 shares authorized 816 - 816
81,629,693 shares issued and outstanding
Additional paid in capital 1,265,133 - 1,265,133
Treasury stock, 3,318,600 shares (68,492) - (68,492)
----------------- ------------------ -------------
Total Stockholders' Equity 1,197,457 - 1,197,457
----------------- ------------------ -------------
Total Liabilities and Stockholders' Equity $ 3,272,745 $ 475,264 $ 3,748,009
================= ================== =============
(The accompanying notes and management's assumptions are an integral part of this statement)
3
RECKSON ASSOCIATES REALTY CORP.
NOTES TO PRO-FORMA BALANCE SHEET
MARCH 31, 2005
(UNAUDITED)
A Represents the historical balance sheet of Reckson Associates
Realty Corp. at March 31, 2005.
B To record the acquisition of One Court Square had the acquisition
occurred on March 31, 2005. Such acquisition is inclusive of an
estimated purchase price allocation of approximately $119.1
million to land, approximately $51.4 million to real estate
intangible assets and approximately $3.0 million of deferred
revenues recorded in accordance with FAS 141 / 142.
C Inclusive of approximately $1.7 million of cash rent received from
the seller at closing.
4
RECKSON ASSOCIATES REALTY CORP
PRO-FORMA STATEMENT OF INCOME
FOR THE THREE MONTHS ENDED MARCH 31, 2005
(UNAUDITED AND IN THOUSANDS, EXCEPT SHARE AMOUNTS)
Reckson Pro-Forma Pro-Forma
Historical Adjustments Condensed
(A) (B)
--------------- ---------------- -----------------
Revenues:
Property Operating Revenues:
Base rents $ 117,382 $ 8,022 $ 125,404
Tenant escalations and reimbursements 18,502 - 18,502
--------------- ---------------- -----------------
Total property operating revenues 135,884 8,022 143,906
Operating Expenses:
Property operating expenses 55,088 - 55,088
Marketing, general and administrative 8,205 - 8,205
Depreciation and amortization 29,728 3,689 33,417
--------------- ---------------- -----------------
Total operating expenses 93,021 3,689 96,710
--------------- ---------------- -----------------
Operating income 42,863 4,333 47,196
--------------- ---------------- -----------------
Non-Operating Income & Expenses:
Interest income on notes receivable 2,447 - 2,447
Investment income and other 747 - 747
Interest:
Expense (23,568) (4,688)(C) (28,256)
Amortization of deferred financing costs (1,038) - (1,038)
--------------- ---------------- -----------------
Total Non-Operating Income & Expenses (21,412) (4,688) (26,100)
--------------- ---------------- -----------------
Income (Loss) before minority interests, equity in
earnings of a real estate joint venture
and discontinued operations 21,451 (355) 21,096
Minority partners' interests in consolidated partnerships (3,779) - (3,779)
Limited partners' minority interest
in the operating partnership (772) 15 (757)
Equity in earnings of a real estate joint venture 151 - 151
--------------- ---------------- -----------------
Income (Loss) before discontinued operations 17,051 (340) 16,711
Discontinued operations (net of minority interests):
Income from discontinued operations 305 - 305
--------------- ---------------- -----------------
Net income (Loss) $ 17,356 $ (340) $ 17,016
=============== ================ =================
Basic net income per weighted average share:
Common $ 0.21 $ 0.21
Discontinued operations - -
--------------- -----------------
Basic net income per common share $ 0.21 $ 0.21
=============== =================
Basic weighted average common shares outstanding: 81,100,109 81,100,109
Diluted net income per weighted average common share $ 0.21 $ 0.21
Diluted weighted average common shares outstanding 81,520,971 81,520,971
(The accompanying notes and management's assumptions are an integral part of this statement)
5
RECKSON ASSOCIATES REALTY CORP.
NOTES TO PRO-FORMA STATEMENT OF INCOME
FOR THE THREE MONTHS ENDED MARCH 31, 2005
(UNAUDITED)
A Represents the historical statement of income of Reckson
Associates Realty Corp. for the year ended December 31, 2005.
B Represents adjustments for the purchase of One Court Square had
this acquisition occurred on January 1, 2004 to (i) add the
results of operations, (ii) record depreciation expense on the
building based on an estimated useful life of 30 years, (iii)
record the FAS 141 / 142 amortization expense adjustment on the
tenanting costs, (iv) record interest expense incurred on the
Bridge Facility, and (v) adjust the allocation of income between
the general partner and limited partners under the limited
partnership agreement.
C Calculated using the 30 day LIBOR rate on May 12, 2005 of 3.09% +
90 basis points (3.99%) on amounts outstanding under the Bridge
Facility of $470 million.
6
RECKSON ASSOCIATES REALTY CORP
PRO-FORMA STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 2004
(UNAUDITED AND IN THOUSANDS, EXCEPT SHARE AMOUNTS)
Reckson Pro-Forma Pro-Forma
Historical Adjustments Condensed
(A) (B)
------------------ --------------- --------------
Revenues:
Property operating revenues:
Base rents $ 440,953 $ 32,090 $ 473,043
Tenant escalations and reimbursements 73,862 - 73,862
------------------ --------------- --------------
Total property operating revenues 514,815 32,090 546,905
Operating Expenses:
Property operating expenses 208,754 - 208,754
Marketing, general and administrative 30,879 - 30,879
Depreciation and amortization 116,480 14,756 131,236
------------------ --------------- --------------
Total operating expenses 356,113 14,756 370,869
------------------ --------------- --------------
Operating income 158,702 17,334 176,036
------------------ --------------- --------------
Non-Operating Income & Expenses:
Interest income on notes receivable 7,129 - 7,129
Investment income and other 12,157 - 12,157
Interest: -
Expense (98,050) (18,753)(C) (116,803)
Amortization of deferred financing costs (3,822) (478)(D) (4,300)
------------------ --------------- --------------
Total Non-Operating Income & Expenses (82,586) (19,231) (101,817)
------------------ --------------- --------------
Income (Loss) before minority interests, preferred
dividends and distributions, equity in
earnings of a real estate joint venture and discontinued operations 76,116 (1,897) 74,219
Minority partners' interests in consolidated partnerships (18,507) - (18,507)
Limited partners' minority interest in the operating partnership (1,517) 95 (1,422)
Distributions to preferred unit holders (541) - (541)
Equity in earnings of a real estate joint venture 603 - 603
------------------ --------------- --------------
Income (Loss) before discontinued operations and dividends to preferred
shareholders 56,154 (1,802) 54,352
Discontinued operations (net of minority interests):
Income from discontinued operations 2,498 - 2,498
Gain on sales of real estate 11,776 - 11,776
------------------ --------------- --------------
Net income 70,428 (1,802) 68,626
Dividends to preferred shareholders (12,236) - (12,236)
Redemption charges on Series A preferred stock (15,812) - (15,812)
------------------ --------------- --------------
Net income allocable to common shareholders $ 42,380 $ (1,802) $ 40,578
================== =============== ==============
Basic net income per weighted average share:
Common $ 0.41 $ 0.38
Discontinued operations 0.21 0.21
------------------ --------------
Basic net income per common share $ 0.62 $ 0.59
================== ==============
Basic weighted average common shares outstanding: 68,871,000 68,871,000
Diluted net income per weighted average common share $ 0.61 $ 0.59
Diluted weighted average common shares outstanding 69,235,000 69,235,000
(The accompanying notes and management's assumptions are an integral part of this statement)
7
RECKSON ASSOCIATES REALTY CORP.
NOTES TO PRO-FORMA STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 2004
(UNAUDITED)
A Represents the historical audited statement of income of Reckson
Associates Realty Corp. for the year ended December 31, 2004.
B Represents adjustments for the purchase of One Court Square had
this acquisition occurred on January 1, 2004 to (i) add the
results of operations, (ii) record depreciation expense on the
building based on an estimated useful life of 30 years, (iii)
record the FAS 141 / 142 amortization expense adjustment on the
tenanting costs, (iv) record interest expense incurred on the
Bridge Facility, and (v) adjust the allocation of income between
the general partner and limited partners under the limited
partnership agreement.
C Calculated using the 30 day LIBOR rate on May 12, 2005 of 3.09% +
90 basis points (3.99%) on amounts outstanding under the Bridge
Facility of $470 million.
D Estimated deferred financing costs of $125,000 to place the Bridge
Facility and a one-time commitment fee equal to 7.5 basis points
on the amount outstanding under the Bridge Facility.
8
(c) Exhibits
10.1 Purchase and Sale Agreement, dated as of May 4, 2005, by and
between Citibank, N.A. and Reckson Court Square, LLC (Incorporated
herein by reference to Exhibit 10.1 of Reckson Associates Realty
Corp.'s quarterly report on Form 10-Q, filed on May 9, 2005.)
10.2 Lease Agreement between Reckson Court Square, LLC and Citibank,
N.A. (Citibank), dated May 12, 2005
10.3 Term Loan Agreement, dated as of May 12, 2005, among Reckson
Operating Partnership, L.P., the institution from time to time
party thereto as lenders, Citicorp North America, Inc., as
administrative agent, and Citigroup Global Markets Inc., as lead
arranger and sole bookrunner
10.4 Amendment No.1 to Third Amended and Restated Credit Agreement,
dated as of May 12, 2005, by and among Reckson Operating
Partnership, L.P., the Lenders party thereto and JPMorgan Chase
Bank, N.A., as administrative agent
9
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
each registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Michael Maturo
-------------------------------------
Michael Maturo
Chief Financial Officer
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner
By: /s/ Michael Maturo
-------------------------------------
Michael Maturo
Chief Financial Officer
Date: May 18, 2005
LEASE (this "lease"), dated as of May 12, 2005 between RECKSON COURT
SQUARE, LLC, a Delaware limited liability company, having an office at c/o
Reckson Associates Realty Corp., 1350 Avenue of the Americas, Suite 901, New
York, New York 10019 ("Landlord") and CITIBANK, N.A., a national banking
association, having an office at having an office at One Court Square, Long
Island City, New York 11120 ("Tenant").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, immediately prior to the date of this lease, Tenant owned
fee title interest in and to the Land and the improvements thereon consisting
of a fifty-two (52) story building with attached low-rise building and
connecting rotunda (collectively, the "Building") known as One Court Square in
Long Island City, Queens County, New York. The Land is more particularly
described in Exhibit A annexed hereto, which together with the Building
comprise a part of the Real Property;
WHEREAS, immediately prior to the execution and delivery of this
lease, Tenant conveyed its ownership interest in and to the Real Property to
the Landlord named herein;
WHEREAS, Landlord currently owns the Real Property; and
WHEREAS, Tenant desires to lease the entire Real Property from
Landlord for a term commencing on the date of this lease,
NOW, THEREFORE, for the mutual covenants herein contained and other
good and valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, the parties hereto, for themselves, their
successors and permitted assigns, hereby covenant as follows:
ARTICLE 1
Term and Fixed Rent
-------------------
1.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, upon and subject to the terms, covenants, provisions and conditions
of this lease, the premises described in Section 1.02.
1.02. The premises (herein called the "Premises") leased to Tenant
shall consist of the entire Real Property, including, without limitation: the
entire 3rd through 50th floors of the Building (each such floor is
individually referred to herein an "Office Floor" and collectively as the
"Office Floors"), the lobby of the Building (herein called the "Lobby"), the
concourse of the Building (herein called the "Concourse"), the sub-concourse
of the Building (herein called the "Sub-concourse"), and the 51st, 52nd and
53rd
floor areas of the Building which are devoted to mechanical and roof top
areas and are not usable for office use (herein collectively called the
"Mechanical Areas"). Landlord and Tenant hereby covenant and agree that (i) no
rentable square feet or amounts of rent payable hereunder shall be
attributable to the Sub-concourse or to the Mechanical Areas or any other area
that would constitute a common area if the Building were multi-tenanted and
(ii) the Premises shall be deemed to contain an aggregate of 1,401,609
rentable square feet (which is the area on which Fixed Rent is determined
hereunder) comprised as follows:
Office Floors:
- --------------
- ------------------------------------------------------------------------------------------------
3rd Floor 31,079 28th Floor 30,612
- ------------------------------------------------------------------------------------------------
4th Floor 22,833 29th Floor 30,209
- ------------------------------------------------------------------------------------------------
5th Floor 18,968 30th Floor 30,174
- ------------------------------------------------------------------------------------------------
6th Floor 27,002 31st Floor 31,165
- ------------------------------------------------------------------------------------------------
7th Floor 30,170 32nd Floor 31,165
- ------------------------------------------------------------------------------------------------
8th Floor 30,170 33rd Floor 31,165
- ------------------------------------------------------------------------------------------------
9th Floor 30,170 34th Floor 31,165
- ------------------------------------------------------------------------------------------------
10th Floor 30,170 35th Floor 31,165
- ------------------------------------------------------------------------------------------------
11th Floor 30,170 36th Floor 31,165
- ------------------------------------------------------------------------------------------------
12th Floor 30,170 37th Floor 31,166
- ------------------------------------------------------------------------------------------------
14th Floor 30,170 38th Floor 31,189
- ------------------------------------------------------------------------------------------------
15th Floor 30,170 39th Floor 30,814
- ------------------------------------------------------------------------------------------------
16th Floor 30,170 40th Floor 30,787
- ------------------------------------------------------------------------------------------------
17th Floor 30,170 41st Floor 31,749
- ------------------------------------------------------------------------------------------------
18th Floor 30,143 42nd Floor 31,749
- ------------------------------------------------------------------------------------------------
19th Floor 29,806 43rd Floor 31,749
- ------------------------------------------------------------------------------------------------
20th Floor 29,804 44th Floor 31,749
- ------------------------------------------------------------------------------------------------
21st Floor 30,696 45th Floor 31,749
- ------------------------------------------------------------------------------------------------
22nd Floor 30,696 46th Floor 28,338
- ------------------------------------------------------------------------------------------------
23rd Floor 30,696 47th Floor 28,338
- ------------------------------------------------------------------------------------------------
24th Floor 30,672 48th Floor 19,978
- ------------------------------------------------------------------------------------------------
25th Floor 30,717 49th Floor 19,702
- ------------------------------------------------------------------------------------------------
26th Floor 30,717 50th Floor 12,253
- ------------------------------------------------------------------------------------------------
27th Floor 30,717
- ------------------------------------------------------------------------------------------------
Lobby:
- ------
------------------------------ ------------------
Retail space 11,775
------------------------------ ------------------
Concourse:
- ----------
2
------------------------------ ------------------
Retail space 12,626
------------------------------ ------------------
------------------------------ ------------------
Storage space 1,667
------------------------------ ------------------
Subject to the terms, covenants, provisions and conditions of this lease,
Landlord hereby grants to Tenant the exclusive right to use the Premises and
to control the operation and management thereof.
1.03. The term of this lease shall commence on the date of this
lease (herein called the "Commencement Date") and subject to the rights of
Tenant to elect to extend the term of this lease pursuant to the provisions of
Article 36 in which case the term of this lease shall end as of the last day
of the applicable Extension Term, the term of this lease shall end at 11:59
p.m. on May 11, 2020 (the later of such dates is herein called the "Expiration
Date") or on such earlier date upon which the term of this lease shall expire
or be canceled or terminated pursuant to any of the conditions or covenants of
this lease or pursuant to law.
1.04. The rents shall be and consist of the following amounts with
respect to the Premises:
(a) fixed rent (herein called "Fixed Rent") for the Premises
at the monthly rates set forth on Schedule 1 annexed hereto, which Fixed Rent
shall be payable commencing on the Commencement Date, and thereafter in
monthly installments in advance on the first day of each and every calendar
month during the term of this lease, to be paid in lawful money of the United
States to Landlord at its office, or such other place as Landlord shall
designate on at least thirty (30) days advance written notice to Tenant, and
(b) additional rent (herein called "Additional Charges") shall
consist of any sums of money (other than Fixed Rent) that may become due from
and payable by Tenant directly to Landlord pursuant to any express provision
of this lease.
1.05. The number of rentable square feet set forth in Section 1.02
for each Office Floor and for the retail and storage space located in the
Lobby and Concourse shall be the basis for computing (i) Fixed Rent abatements
or reductions in Fixed Rent pursuant to any of the provisions of this lease,
which to the extent applicable shall be computed in accordance with Schedule
1, (ii) the rentable area of any Extension Premises comprising full floors or
of any Surrender Space comprising full floors and the computation of the
Surrender Fee with respect thereto, and (iii) Fixed Rent and Tenant's Share
under the Amended and Restated Lease. The rentable square footage of any
partial floor, to the extent it needs to be determined with respect to any of
the matters set forth in the preceding sentence, shall be computed using the
REBNY Standard and applying a twenty-one percent (21%) loss factor thereto.
For purposes of this lease, the term "REBNY Standard" shall mean establishing
the useable area of a particular area by using the "Recommended Method of
Floor Measurement for Office Buildings" effective
3
January 1, 1987 found in the Real Estate Board of New York, Inc. Diary and
Manual dated 1989.
1.06. Tenant covenants and agrees to pay Fixed Rent and Additional
Charges promptly when due without notice or demand therefor, except as such
notice or demand may be expressly provided for in this lease, and without any
abatement, deduction or setoff for any reason whatsoever, except as may be
expressly provided in this lease. Fixed Rent shall be paid by electronic funds
transfer to an account designated from time to time by Landlord on at least
thirty (30) days advance written notice to Tenant. Additional Charges shall be
paid by good and sufficient check (subject to collection) drawn on a New York
City bank which is a member of the New York Clearing House Association or a
successor thereto.
1.07. If the term of this lease commences on a day other than the
first day of a calendar month, or if the Expiration Date occurs on a day other
than the last day of a calendar month, the Fixed Rent and Additional Charges
for the applicable partial calendar month shall be prorated in the manner
provided in Section 1.09.
1.08. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Fixed Rent shall be deemed to be other than a
payment on account, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance or pursue any other remedy in this lease or at
law provided.
1.09. Any apportionments or prorations of Fixed Rent or Additional
Charges to be made under this lease shall be computed on the basis of a
365-day year (based on the actual number of days in the period in question).
1.10. If any of the Fixed Rent or Additional Charges payable under
the terms and provisions of this lease shall be or become uncollectible,
reduced or required to be refunded because of any act or law enacted by a
governmental authority, Tenant shall enter into such agreement(s) and take
such other steps (without additional expense to Tenant) as Landlord may
reasonably request and as may be legally permissible to permit Landlord to
collect the maximum rents which from time to time during the continuance of
such legal rent restriction may be legally permissible (but not in excess of
the amounts reserved therefor under this lease). Upon the termination of such
legal rent restriction, (a) the Fixed Rent and/or Additional Charges shall
become and thereafter be payable in accordance with the amounts reserved
herein for the periods following such termination, and (b) Tenant shall pay to
Landlord promptly upon being billed, to the maximum extent legally
permissible, an amount equal to (i) the Fixed Rent and/or Additional Charges
which would have been paid pursuant to this lease but for such legal rent
restriction less (ii) the rents paid by Tenant during the period such legal
rent restriction was in effect. The provisions of this Section 1.10 shall have
no applicability with respect to Benefits, or any program, law, rule or
regulation of any governmental authority, quasi-governmental
4
authority or public or private utility or similar entity designed to induce
tenants to enter into, renew, expand or otherwise modify leases, perform
tenant improvements or utilize energy-efficient appliances, or any other
tenant-inducement program, law, rule or regulation; provided, however, that
the provisions of this sentence shall not be construed in any manner to reduce
the Fixed Rent payable under this lease unless and to the extent that Landlord
is reimbursed or otherwise compensated for such reduction on a
dollar-for-dollar basis by any governmental authority, quasi-governmental
authority or public or private utility or similar or dissimilar entity.
1.11. Landlord shall be entitled to all rights and remedies provided
herein or by law for a default, after the expiration of any applicable notice
and cure period, in the payment of Additional Charges as are available to
Landlord for a default, after the expiration of any applicable notice and cure
period, in the payment of Fixed Rent.
ARTICLE 2
Delivery and Use of Premises
----------------------------
2.01. (a) Tenant acknowledges that Tenant has inspected the Premises
and is fully familiar with the condition thereof. Tenant has accepted each
floor of the Premises in their "as is" condition, and Landlord shall not be
required to perform any work, install any fixtures or equipment or render any
services to make the Premises ready or suitable for Tenant's occupancy.
(b) Tenant hereby waives any right to rescind this lease under
the provisions of Section 223(a) of the Real Property Law of the State of New
York, and agrees that the provisions of this Section 2.01(b) are intended to
constitute "an express provision to the contrary" within the meaning of said
Section 223(a).
2.02. (a) Subject to any applicable Legal Requirements, the Premises
may be used by Tenant and any persons claiming by, through or under Tenant
(including, without limitation, any subtenants of Tenant) for any lawful
purposes, including, without limitation, administrative, executive and general
offices and retail use (including, without limitation, a retail bank and
automated teller machines), all of which are permitted by the Certificate of
Occupancy for the Building (as the same may be amended in accordance with the
terms hereof).
Notwithstanding the foregoing, Landlord makes no warranty or representation as
to the suitability of all or any portion of the Premises for any use,
including, without limitation, as a place of public assembly requiring a
public assembly permit or a change in the Certificate of Occupancy for the
Building or as to whether there will be adequate means of ingress and/or
egress or adequate restroom facilities in the event that Tenant requires such
a public assembly permit or such a change, and Landlord shall have no
liability to
5
Tenant in connection therewith (provided, however, that Landlord shall
reasonably cooperate with Tenant's application for any such public assembly
permit or change in the Certificate of Occupancy, subject to Tenant's
obligation to reimburse Landlord for its out-of-pocket expenses, as more
particularly set forth below), nor shall Landlord have any obligation to
perform any alterations in or to the Premises in order to render any floor
suitable for any use, including, without limitation, the issuance of a public
assembly permit or for a change in the Certificate of Occupancy.
(b) Landlord agrees that throughout the term of this lease,
Landlord shall not change the Certificate of Occupancy for the Building in a
manner which shall (i) adversely affect Tenant's use of the Premises for
general, administrative and executive offices or any of the specific uses
expressly permitted pursuant to this Section 2.02, including, without
limitation, the ancillary and incidental uses described in Section 2.02(a) of
the Amended and Restated Lease, or (ii) affect Tenant's ability to obtain a
valid construction permit for any Alterations in the Premises, or (iii) permit
a use that is not ancillary to general, executive and administrative offices
or is for a Prohibited Use, unless in each such case consented to by Tenant
(which consent may be granted or withheld by Tenant in its sole discretion).
At Tenant's request, Landlord agrees to cooperate reasonably with Tenant, at
Tenant's sole cost and expense, in connection with any reasonable changes to
the Certificate of Occupancy for the Building required by Tenant for any
reasonable use of the Premises by Tenant, provided such use is permitted
pursuant to the terms of this lease.
2.03. If any governmental license or permit (other than a
Certificate of Occupancy for the Building) shall be required for the proper
and lawful conduct of Tenant's business in the Premises or any part thereof,
Tenant, at its expense, shall duly procure and thereafter maintain such
license or permit and submit the same to Landlord for inspection within thirty
(30) days after Landlord's request therefor. Tenant shall at all times comply
in all material respects with the terms and conditions of each such license or
permit. Additionally, should Alterations or Tenant's use of the Premises for
other than executive and general offices or retail use require any
modification or amendment of any Certificate of Occupancy for the Building,
Tenant shall, at its expense, take all commercially reasonable actions
necessary to procure any such modification or amendment, provided that such
action shall not subject Landlord or any of its principals to any civil or
criminal liability therefor (except to the extent that Tenant agrees to
indemnify and hold harmless Landlord and/or its principals from any such civil
liability), and shall reimburse Landlord (as Additional Charges) for all
reasonable out-of-pocket costs and expenses Landlord incurs in effecting said
modifications or amendments within thirty (30) days after demand therefor
accompanied by reasonably satisfactory documentation of such costs and
expenses. Landlord shall cooperate with Tenant in connection with Tenant's
obtaining of any such governmental license or permit (including any permit
required in connection with Tenant's Alterations) or any application by Tenant
for any amendment or modification to the Certificate of Occupancy for the
Building, and Landlord shall reasonably promptly execute and deliver any
6
applications, reports or related documents as may be requested by Tenant in
connection therewith, provided that Tenant shall reimburse Landlord (as
Additional Charges) for the reasonable out-of-pocket costs and expenses
incurred by Landlord in connection with such cooperation within thirty (30)
days after demand therefor, accompanied by reasonably satisfactory
documentation of such costs and expenses, and further provided that Tenant
shall indemnify and hold harmless Landlord from and against any claims arising
in connection with such cooperation, other than any such claims arising from
any incorrect information provided by Landlord in connection therewith or any
conditions at or in the Building which are Landlord's responsibility
hereunder. The foregoing provisions are not intended to be deemed Landlord's
consent to any use of the Premises not otherwise permitted hereunder nor to
require Landlord to effect such modifications or amendments of any Certificate
of Occupancy (without limiting Landlord's obligations to cooperate with Tenant
in connection with any such modifications or amendments as hereinabove set
forth).
Notwithstanding anything to the contrary contained herein, Tenant shall not at
any time use or occupy the Premises or suffer or permit anyone to use or
occupy the Premises, or do anything in the Premises, or suffer or permit
anything to be done in, brought into or kept on the Premises, which shall (a)
violate the Certificate of Occupancy for the Building; (b) cause injury to the
Building or any equipment, facilities or systems therein; or (c) constitute a
violation of any Legal Requirements.
2.04. Notwithstanding anything to the contrary contained in this
lease, neither Landlord nor Tenant shall lease or sublease any space in the
Building (including the Premises) to, or otherwise permit the use of any
portion of the space in or on the Real Property or the Building by any tenants
or occupants who would use the space for any of the following uses: (i)
offices of any governmental agency or quasi-governmental agency, including
with respect to any foreign government or the United Nations, an embassy or
consulate office, or any agency or department of the foregoing; (ii) medical,
dental or other therapeutic or diagnostic services as opposed to medical or
health facilities referred to in Section 2.02(a)(viii) which are ancillary and
incidental to Tenant's primary use of the Premises, (iii) abortion clinics;
(iv) manufacture, distribution or sale of pornography; (v) dry cleaning plants
(as opposed to dry cleaning and laundry stores which do not perform, on site,
dry cleaning services); (vi) establishments whose primary sales on their
premises are alcoholic beverages; (vii) foreign governments and any entity
that is entitled to sovereign immunity; (viii) military recruitment office;
(ix) retail use on any Office Floor with off-street public traffic; (x)
residential purposes, (xi) school or classroom (but not training and classroom
facilities that are ancillary to the use of the Premises for the uses
permitted hereunder); (xii) manufacturing, and (xiii) any use that would
violate any Legal Requirement or the Certificate of Occupancy for the Building
or that is illegal. Each of the uses which are precluded by this Section 2.04
are herein called a "Prohibited Use". Notwithstanding any of the foregoing, in
no event shall any use of the Premises existing as of the date hereof by any
Citibank Tenant or permitted under any Current Occupancy Agreement (so long as
any such Currency Occupancy Agreement is in effect,
7
including any amendment, modification or renewal thereof) constitute a
Prohibited Use with respect to the portion of the Premises so used unless such
use is illegal. Any dispute between Landlord and Tenant as to whether or not a
proposed use constitutes a Prohibited Use shall be resolved by arbitration in
accordance with the provisions of Article 37.
ARTICLE 3
Taxes and Operating Expenses
----------------------------
3.01. The terms defined below shall for the purposes of this lease
have the meanings herein specified:
(a) "Landlord Compliance Capital Item" shall mean any repair
or alteration which should be capitalized in accordance with generally
accepted accounting principles, consistently applied (herein called "GAAP")
which is required to comply with any Legal Requirement in respect of the
Premises or the use and occupation thereof, and which is not included within
the definition of Tenant Compliance Capital Item. Notwithstanding anything to
the contrary contained in this lease: (i) in all instances in this lease where
an item is required to be amortized in accordance with GAAP, it is agreed that
such item shall be amortized over its useful life (which useful life shall be
determined in accordance with GAAP if and to the extent that GAAP provides a
basis for determining such useful life), without reference to any provision of
GAAP or otherwise permitting the acceleration of any such amortization to a
period of amortization less than the useful life of the item in question, (ii)
the useful life of any such item shall be deemed to commence when such item
has been installed and has been made operational, and (iii) any dispute
between Landlord and Tenant over the useful life of an item shall be submitted
to expedited arbitration in accordance with the provisions of Article 37.
(b) "Landlord R&M Capital Item" shall mean any repair or
replacement in respect of the Premises or the use and occupation thereof
(other than any Tenant R&M Capital Item) which should be capitalized in
accordance with GAAP and which is made at any time following the second (2nd)
anniversary of the Commencement Date.
(c) "Landlord Reimbursement Amounts" shall mean the amounts of
any Landlord Reimbursement Items.
(d) "Landlord Reimbursement Items" shall mean, collectively,
Reimbursement Operating Expenses, Reimbursement Taxes, Tenant-Funded Residual
Cap Ex Amounts (to the extent not received by or on behalf of Tenant for such
purpose from casualty insurance or condemnation proceeds) and any other items
that are designated as Landlord Reimbursement Items in any other provision of
this lease.
8
(e) "Net Taxes Additional Charges" shall mean the aggregate of
Tax Payments less Reimbursement Taxes.
(f) "Operating Expenses" shall mean all amounts paid by Tenant
in connection with the repair, replacement, maintenance, operation, and/or the
security of the Real Property, except to the extent that such costs constitute
Taxes.
(g) "Real Property" shall mean, collectively, the Building and
all fixtures, facilities, machinery and equipment used in the operation
thereof, including, but not limited to, all cables, fans, pumps, boilers,
heating and cooling equipment, wiring and electrical fixtures and metering,
control and distribution equipment, component parts of the HVAC, electrical,
plumbing, elevator and any life or property protection systems (including,
without limitation, sprinkler systems), window washing equipment and snow
removal equipment), the Land, any property beneath the Land, the curbs,
sidewalks and plazas on and/or immediately adjoining the Land, and all
easements, air rights, development rights and other appurtenances benefiting
the Building or the Land or both the Land and the Building, including, without
limitation, that certain (i) Subway Agreement dated as of July 8, 1986 by and
among Tenant, Perennially Green, Inc. and The New York City Transit Authority
acting for itself and on behalf of The City of New York, as amended and
assigned through the date hereof and as may be hereinafter further amended
(the "Subway Agreement"), (ii) Revocable Consent Agreement dated November 6,
1996, as amended, given by The City of New York Department of Transportation
and accepted by Tenant, and (iii) Agreement dated ____, 1990 between Tenant
and The City of New York, as modified by that certain Revocable Consent
Agreement dated _____, 2000 (the agreements set forth in items (i)-(iii) are
herein collectively called the "Existing Agreements").
(h) "Reassessment Event" shall mean only the following events:
(A) a voluntary or involuntary sale, exchange, partition (e.g., condominium
conversion, it being understood and agreed the foregoing is not intended to
permit Landlord to do so) or other transfer of an equity interest in the Land
and/or Building or a lease or sublease of the entire Land and/or Building (or
a material portion of the entire Land and/or the Building) to a party not
intending to use the space so leased for its own occupancy or the occupancy of
its Affiliates (herein called a "Non-Occupancy Lease"), or an option or
agreement to do any of the foregoing, or (B) the voluntary or involuntary
sale, exchange, or transfer (whether in a single transaction or a series of
related transactions) of any direct or indirect beneficial interest in the
entity constituting Landlord or the lessee under any Non-Occupancy Lease or an
option or agreement to do any of the foregoing, or (C) the financing and/or
refinancing of any indebtedness (whether in a single transaction or a series
of related transactions) which financing or refinancing is secured or
collateralized (in whole or in part) by a mortgage or other lien or security
interest upon the Land and/or Building or any Non-Occupancy Lease.
9
(i) "Reimbursement Operating Expenses" shall mean that
portion, if any, of the Operating Expenses paid by Tenant pursuant to the
terms hereof which represents:
(1) with respect to any Landlord Compliance Capital Item or
Landlord R&M Capital Item which has a useful life determined
in accordance with GAAP that extends beyond the Expiration
Date or if Tenant has exercised the Surrender Option, has a
useful life determined in accordance with GAAP that extends
beyond the Surrender Date (herein collectively called an
"Extended Landlord Capital Item"), that portion of the cost of
any such Extended Landlord Capital Item that is allocable to
the portion of its useful life occurring after the Expiration
Date or the Surrender Date, as the case may be, amortized on a
straight-line basis in accordance with GAAP; provided,
however, that
(i) with respect to any Extended Landlord Capital Item
performed during the initial term of this lease, if
Tenant has exercised the Surrender Option, then the
portion of the cost of any such Extended Landlord
Capital Item that relates to the portion of its useful
life occurring after the Surrender Date that is
allocable to the Surrender Space will constitute
Reimbursement Operating Expenses; and
(ii) with respect to any Extended Landlord Capital Item
performed during the initial term of this lease or
during any Extension Term, if Tenant has exercised an
Extension Option with respect to less than the entire
Premises, then the portion of the cost of any such
Extended Landlord Capital Item that relates to the
portion of its useful life occurring after the
Expiration Date that is allocable to the portion of the
Premises with respect to which Tenant has not exercised
the Extension Option will constitute Reimbursement
Operating Expenses, and
(iii) with respect to any Extended Landlord Capital Item
performed during the initial term or any of the
Extension Terms where there remain no further Extension
Terms, or Tenant has not exercised an option for the
forthcoming Extension Term, then the portion of the cost
of such Extended Landlord Capital Item that relates to
the portion of its useful life occurring after the
Expiration Date will constitute Reimbursement Operating
Expenses.
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To illustrate and without limitation:
if Tenant shall have exercised the
Surrender Option with respect to 20% of
the Premises and on the first day of
the year immediately preceding the
Surrender Date Tenant pays $10,000 to
replace a component of the Building's
base building air conditioning system
which constitutes a Landlord Compliance
Capital Item or a Landlord R&M Capital
Item and has a useful life of ten (10)
years, the sum of $1,800 will
constitute Reimbursement Operating
Expenses as it relates to the Surrender
Space, representing 20% of the $9,000
portion of such cost attributable to
the period following the Surrender
Date;
if Tenant shall have exercised the
First Five Year Option with respect to
50% of the Premises and on the first
day of the last year of the initial
term of this lease, Tenant pays $10,000
to replace a component of the
Building's base building air
conditioning system which constitutes a
Landlord Compliance Capital Item or a
Landlord R&M Capital Item and has a
useful life of ten (10) years, the sum
of $4,500 will constitute Reimbursement
Operating Expenses, representing 50% of
the $9,000 portion of such cost
attributable to the period following
the expiration of the initial term of
the lease; and
if with two (2) years remaining in the
Fifth Extension Term, Tenant pays
$10,000 to replace a component of the
Building's base building air
conditioning system which constitutes a
Landlord Compliance Capital Item or a
Landlord R&M Capital Item and has a
useful life of ten (10) years, the sum
of $8,000 will constitute Reimbursement
Operating Expenses.
(2) with respect to items other than Extended Landlord Capital
Items which are prepaid for a term which extends beyond the
Expiration Date or the Surrender Date, as the case may be,
(herein called "Non-Capital Extended Landlord Items"), such as
an annual contract to clean snow and ice from in front of the
Building paid in advance, that portion of the cost of any such
Non-Capital Extended Landlord Item that is allocable to the
period occurring after the Expiration Date or in the case of
any Surrender Space, the Surrender Date, as the case may be
(e.g., if Tenant pays $12,000
11
with respect to such an annual contract that covers the last
five (5) months of the term of this lease and the seven (7)
months following thereafter, the sum of $7,000 will constitute
Reimbursement Operating Expenses);
(3) amounts paid by Tenant which are thereafter reimbursed or
credited to Landlord, whether by insurance or casualty or
condemnation proceeds, warrantees or otherwise, together with
interest thereon to the extent received by Landlord (except to
the extent, but only to the extent, that Tenant is an indirect
beneficiary of such reimbursement or credit); and
(4) expenses paid by Tenant and reimbursed directly to Landlord by
third parties.
(j) "Reimbursement Taxes" shall mean any taxes that are
payable by Landlord and are paid by Tenant on behalf of Landlord pursuant to
this lease which are excluded from the definition of Taxes or which are
allocable to the period occurring after the Expiration Date or in the case of
any Surrender Space, allocable to the period occurring after the Surrender
Date.
(k) "Taxes" shall mean (i) the real estate taxes, vault taxes,
assessments and special assessments, and business improvement district or
similar charges levied, assessed or imposed upon or with respect to the Real
Property by any federal, state, municipal or other governments or governmental
bodies or authorities (after giving effect to any tax credits, exemptions and
abatements) and (ii) all taxes assessed or imposed with respect to the rentals
payable hereunder other than general income and gross receipts taxes. If at
any time during the term of this lease the methods of taxation prevailing on
the date hereof shall be altered so that in lieu of, or as an addition to or
as a substitute for, the whole or any part of such real estate taxes,
assessments and special assessments now imposed on real estate, there shall be
levied, assessed or imposed upon or with respect to the Real Property (A) a
tax, assessment, levy, imposition, license fee or charge wholly or partially
as a capital levy or otherwise on the rents received therefrom, or (B) any
other such additional or substitute tax, assessment, levy, imposition, fee or
charge, then all such taxes, assessments, levies, impositions, fees or charges
or the part thereof so measured or based shall be deemed to be included within
the term "Taxes" for the purposes hereof; provided, however, that any such
taxes, assessments, levies, impositions, fees or charges which are "in
addition to" (as opposed to "in lieu of" or "as a substitute for") taxes
otherwise includable in this definition of Taxes shall only be deemed Taxes if
such amounts, from and after the time of their imposition, shall generally be
treated as Taxes in other leases entered into by Landlord and by landlords of
Comparable Buildings with tenants leasing in excess of 200,000 rentable square
feet. Any dispute between Landlord and Tenant as to whether any taxes,
assessments, levies, impositions, fees or charges should be included in Taxes
12
as amounts which are includable on the basis that they are "in addition to"
Taxes in accordance with the proviso at the end of the immediately preceding
sentence shall be determined by expedited arbitration in accordance with the
provisions of Article 37. Notwithstanding anything to the contrary contained
herein, the term "Taxes" shall exclude any taxes imposed in connection with a
transfer of the Real Property or any refinancing thereof, and shall further
exclude any net income, franchise or "value added" tax, inheritance tax or
estate tax imposed or constituting a lien upon Landlord or all or any part of
the Building or the Land, except to the extent, but only to the extent, that
any of the foregoing are hereafter assessed against owners or lessors of real
property in their capacity as such (as opposed to any such taxes which are of
general applicability) in lieu of, or as a substitute for, the whole or any
part of such real estate taxes, assessments and special assessments now
imposed on real estate. Notwithstanding anything to the contrary contained in
this lease, if an assessed valuation of the Land or Building shall include an
assessed valuation amount allocable to (x) an addition of new space in the
Building (without suggesting that Landlord shall have the right to add new
space to the Building without Tenant's written consent, which consent Tenant
shall have the right to withhold in its sole discretion), or (x) to an
addition of an amenity in the Building which is not available for the use or
benefit of Tenant (without suggesting that Landlord shall have the right to
add any such amenity to the Building without Tenant's written consent, which
consent Tenant shall have the right to withhold in its sole discretion), or
(z) a Reassessment Event, then in any such case which occurs after the date of
this lease, then the computation of Taxes shall not include any amount which
would otherwise constitute Taxes payable by reason of the addition of such new
space or amenity or Reassessment Event, as the case may be.
(l) "Tax Year" shall mean each period of twelve (12) months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this lease, or such other period of twelve (12) months
occurring during the term of this lease as hereafter may be duly adopted as
the fiscal year for real estate tax purposes of the City of New York.
(m) "Tenant Compliance Capital Item" shall mean any repair,
replacement or alteration which should be capitalized in accordance with GAAP
and which is required to comply with any Legal Requirement in respect of the
Premises arising from (a) Tenant's particular manner of use of the Premises
(other than arising out of the mere use of the Premises as executive and
general offices or retail purposes or which are of a building wide
application), (b) the particular manner of conduct of Tenant's business or
operation of its installations, equipment or other property therein (other
than arising out of the mere use of the Premises as executive and general
offices or retail purposes or which are of a building wide application), (c)
any cause or condition created by or at the instance of Tenant (other than the
mere use of the Premises as executive and general offices or retail purposes
or which are of a building wide application), (d) the breach of any of
Tenant's obligations hereunder, or (e) the negligence of Tenant or any of its
agents (provided and to the extent applicable that
13
Landlord has purchased the insurance required to be carried by Landlord
pursuant to Article 9 and the insurance carrier fails or refuses to provide
coverage with respect to such negligence, and provided further that Landlord
shall file a claim with its insurance carrier for the cost of any such repair,
replacement or alteration, diligently prosecute such claim and pay over to
Tenant any amounts recovered from such insurance carrier in connection
therewith, not to exceed the amounts actually paid by Tenant with respect to
such repair, replacement or alteration); it being understood and agreed that
unless the need for same arises out of one or more of the causes set forth in
clauses (a) through (e) of above, the term "Tenant Compliance Capital Item"
shall not include (w) structural repairs or alterations in or to the Premises
(other than Leasehold Improvements), (x) repairs or alterations to the
vertical portions of Building Systems or facilities serving the Premises or to
any portions of Building Systems (but shall include repairs to horizontal
extensions of, or Alterations to, such Building Systems or facilities that do
serve the Premises, such as electrical or HVAC distribution within Office
Floors), or (y) repairs or alterations to the exterior walls or the windows of
the Building or the portions of any window sills outside such windows, in any
such case which should be capitalized in accordance with GAAP and which are
required to comply with any Legal Requirement.
(n) "Tenant-Funded Residual Cap Ex Amounts" shall mean those
portions, if any, of the cost of any Landlord Compliance Capital Item or
Landlord R&M Capital Item paid for by Tenant as Operating Expenses and not
otherwise included in Reimbursement Operating Expenses, which is allocable to
the useful life of such Landlord Compliance Capital Item or Landlord R&M
Capital Item occurring after (i) the early termination of this lease (subject
to the provisions of Section 3.05(b)) or (ii) the non-occurrence of the
Extension Term after Tenant shall have exercised an Extension Option with
respect thereto, in any of the cases described above for any reason
whatsoever.
(o) "Tenant R&M Capital Item" shall mean any repair or
replacement in and to the Premises which should be capitalized in accordance
with GAAP arising from (a) the performance, existence or removal of Leasehold
Improvements, (b) the installation, use or operation of Tenant's Property, (c)
the moving of Tenant's Property in or out of the Building, (d) the act,
omission (where an affirmative duty to act exists), misuse or neglect of
Tenant or any of its subtenants or its or their employees, agents, contractors
or invitees (provided and to the extent that Landlord has purchased the
insurance required to be carried by Landlord pursuant to Article 9 and the
insurance carrier fails or refuses to provide coverage with respect to such
act, omission, misuse or neglect, and provided further that Landlord shall
file a claim with its insurance carrier for the cost of any such repair or
replacement, diligently prosecute such claim and pay over to Tenant any
amounts recovered from such insurance carrier in connection therewith, not to
exceed the amounts actually paid by Tenant with respect to such repair or
replacement), (e) Tenant's particular manner of use of the Premises (other
than arising out of the mere use of the Premises as executive and general
offices or retail purpose) or (f) design flaws in any of Tenant's plans and
specifications for Leasehold Improvements.
14
Tenant R&M Capital Item shall not include (i) repairs to or replacements of
any structural elements of the Building which should be capitalized in
accordance with GAAP, (ii) repairs to or replacements of the vertical portions
of Building Systems or facilities serving the Premises which should be
capitalized in accordance with GAAP (i.e., excluding repairs to or
replacements of horizontal extensions of or Alterations to such Building
Systems or facilities, such as electrical or HVAC distribution within an
Office Floor) or (iii) repairs to or replacements of the exterior walls or the
windows of the Building, or the portions of any window sills outside such
windows, in any case except to the extent, but only to the extent, the need
for such repairs or replacements arises out of one or more of the causes set
forth in clauses (a) through (f) above. Furthermore, Tenant R&M Capital Item
shall not include any item of repair or replacement the need for which arises
from Landlord's negligence or willful misconduct (provided that Tenant has
purchased the insurance required to be carried by Tenant pursuant to Article 9
and the insurance carrier fails or refuses to provide coverage with respect to
such negligence, and provided further that Tenant shall file a claim with its
insurance carrier for the cost of any such repair or replacement, diligently
prosecute such claim and pay over to Landlord any amounts recovered from such
insurance carrier in connection therewith, not to exceed the amounts actually
paid by Landlord with respect to such repair, replacement or alteration), and
the entire cost of any such item shall constitute a Landlord Reimbursement
Item except to the extent that Tenant is paid any insurance proceeds in
connection therewith.
3.02. (a) Tenant shall pay directly to the City of New York or other
applicable taxing authority, as Additional Charges, an amount (herein called
the "Tax Payment") equal to one hundred percent (100%) of the Taxes payable
for each Tax Year or part thereof which shall occur during the term of this
lease. Subject to Section 3.02(c), the Tax Payments shall be made as and when
they are due and payable without penalty (but with interest to the extent
permissible) to the City of New York and Tenant shall contemporaneously
provide Landlord with evidence of such payment; provided, however, Tenant may
pay Taxes in installments (together with interest on any deferred payments) if
permitted by the applicable authorities.
(b) If Landlord or Tenant shall receive any refund or credit
with respect to any Tax Payment made by Tenant, the entire amount of such
refund or credit shall be payable to Tenant, except to the extent, but only to
the extent, if any, that such refund or credit is with respect to
Reimbursement Taxes which have been paid to Tenant.
(c) (i) Subject to compliance with the requirements of Section
3.02(c)(ii), Tenant shall have the exclusive right to seek reductions in the
real estate taxes and/or the assessed valuation of the Real Property and
prosecute any action or proceeding in connection therewith by appropriate
proceedings diligently conducted in good faith, in accordance with the Charter
and Administrative Code of New York City. Notwithstanding the foregoing,
during the last two (2) years of the term of this lease (taking into account
any Extension Option exercised by Tenant) Tenant shall exercise
15
such right with respect to said last two (2) years (herein called a "Required
Cert Proceeding"); provided, however, that Tenant shall not be required to do
so for any such year if Tenant obtains and provides to Landlord with respect
to such year a letter from a recognized certiorari attorney or consultant
that, in such person's opinion, it would not be advisable or productive to
bring any such application or proceeding (without taking into account any
considerations with respect to any other properties owned by Tenant or any
affiliate of Tenant in the City of New York). In connection with any Required
Cert Proceeding, Landlord shall have the right to attend all meetings between
Tenant and Tenant's certiorari attorney and/or consultant, and Tenant shall
act reasonably in accepting Landlord's recommendations in connection with any
such Required Cert Proceeding. If Tenant elects to exercise such rights (or if
Tenant is required to exercise such rights pursuant to the foregoing
provisions of this Section), Landlord will offer no objection and, at the
request of Tenant, will cooperate in all reasonable respects with Tenant in
effecting any such reduction, abatement or refund. Landlord shall not be
required to join in any proceedings referred to in this Section unless the
provisions of any law, rule or regulation at the time in effect shall require
that such proceedings be brought by and/or in the name of Landlord or any
owner of the Real Property, in which event Landlord shall join in such
proceedings or permit the same to be brought in its name, subject to the
following: (1) Landlord's sole obligation in that regard shall be to execute
documents, and undertake other ministerial acts, which must be executed by
Landlord or any owner of the Real Property (and Landlord shall never be
obligated to execute any such documents unless the information set forth
therein is accurate in all material respects and such documents are otherwise
in form reasonably acceptable to it); (2) any document submitted by Tenant to
Landlord shall be deemed accompanied by Tenant's certification that the
information set forth in such document is accurate in all respects; and (3)
Tenant shall indemnify, defend and save Landlord free and harmless from and
against any claims, liabilities, costs and expenses (including, without
limitation, reasonable counsel fees) incurred in connection with, or otherwise
resulting from such proceedings (including, without limitation, those incurred
in connection with, or otherwise resulting from, Landlord's execution of any
such documents or Landlord's taking of any such ministerial acts).
(ii) Tenant shall have the right to contest, at its sole
cost and expense, the amount or validity, in whole or in part, of
any Taxes by appropriate proceedings diligently conducted in good
faith, if, and only as long as:
(A) Neither the Real Property nor any part
thereof, could be, by reason of such postponement or deferment, in
danger of being forfeited and Landlord is not in danger of being
subjected to criminal liability or penalty or civil liability or
penalty by reason of nonpayment thereof, and
(B) Tenant shall have timely paid the Taxes in
full prior to such challenge; provided, however, that to the extent
Legal
16
Requirements permit Tenant to challenge any real estate taxes prior
to the payment of the same, then Tenant may so challenge such Taxes
prior to the payment thereof.
3.03. (a) Subject to the applicable terms and conditions of this
lease, Tenant shall (or shall cause its managing agent to), at its sole cost
and expense (but subject to Landlord's obligations under this Article 3),
manage and operate the Real Property, pay all Operating Expenses, and, in
accordance with the First-Class Landlord Standard and the maintenance program
attached hereto as Exhibit C, maintain the Real Property and make repairs and
replacements thereto (including, without limitation, any such repairs or
replacements that constitute Landlord Compliance Capital Items or Landlord R&M
Capital Items, but subject to reimbursement of all or a portion of the cost
thereof in accordance with the provisions of this Article 3). Subject to the
applicable terms and conditions of this lease, Tenant shall also, at its sole
cost and expense (but subject to Landlord's obligations under this Article 3),
provide such services to the Premises as may be required by Tenant and any
persons claiming by, through or under Tenant. Tenant shall pay directly to the
applicable vendors, as and when same become due and payable without penalty,
the Operating Expenses incurred by Tenant in complying with its obligations
under this Section 3.03(a).
(b) To the extent requested by Landlord, Tenant will schedule
meetings with Landlord at the Building (but not more frequently than once per
month) in which Tenant (and/or Tenant's managing agent) will advise Landlord
as to matters related to the management, operation and maintenance of the
Building. Furthermore, Landlord and persons authorized by Landlord shall have
the right, at scheduled times to be mutually agreed to by Tenant and Landlord
(but not more frequently than once per month) or in the case of an emergency,
to enter and/or pass through the Premises to inspect the Premises provided
Landlord shall use reasonable efforts to minimize any interference with
Tenant's business operations and shall be accompanied by a designated
representative of Tenant if Tenant shall have made such representative
available. Notwithstanding the foregoing, Landlord acknowledges that Tenant
may, from time to time, have certain security or confidentiality requirements
such that portions of the Premises shall be locked and/or inaccessible to
persons unauthorized by Tenant and such areas will not be made available to
Landlord except in the case of an emergency. The provisions of this Section
3.03(b) shall not restrict Landlord's right to access the Premises in
accordance with Section 16.01 and Section 16.02.
(c) Tenant shall not place or install (or permit to be placed
or installed) any plaque or signage of any kind at the Real Property that
identifies the managing agent for the Real Property.
(d) In connection with the anticipated expiration of the
current management contract for the Building in calendar year 2006, if Tenant
request proposals from unaffiliated third parties respecting the management of
the Building (whether by
17
itself or as part of a portfolio of properties), Tenant shall invite Landlord
to participate in the bid process but shall have no obligation whatsoever to
select Landlord.
(e) Tenant hereby covenants that all service, supply,
management, leasing, franchise, maintenance, security, and all other
agreements or contracts (including any amendment, modification, or amendment
and restatement of any of the foregoing) entered into in connection with the
use, operation, management, leasing, maintenance, and repair of the Real
Property (but excluding any contract or agreement that would solely relate to
Tenant's premises if the Amended and Restated Lease was in effect) and in
effect during the year immediately preceding the day following the Surrender
Date, shall be terminable by Tenant on no more than thirty (30) days prior
notice.
3.04. (a) Except in the case of an emergency, or as otherwise may be
required by Legal Requirements, Tenant, before proceeding with any repair,
alteration or improvement which Tenant intends to treat as an Extended
Landlord Capital Item, shall give a notice to Landlord (herein called an
"Extended Landlord Capital Item Notice"), setting forth (i) an explanation of
the facts which lead Tenant to determine that a first-class owner of a
Comparable Building would perform such Extended Landlord Capital Item at such
time (herein called the "First-Class Landlord Standard"), (ii) the estimated
cost of such Extended Landlord Capital Item (herein called the ("Extended Item
Cost"), and (iii) Tenant's determination of the useful life of such Extended
Landlord Capital Item (herein called the "Useful Life Estimate"). If Tenant
proceeds to perform an Extended Landlord Capital Item on an emergency basis or
as otherwise set forth above, Tenant shall promptly give an Extended Landlord
Capital Item Notice in connection therewith. Landlord shall have the right,
which may be exercised within ten (10) Business Days following the giving of
an Extended Landlord Capital Item Notice, to give a notice to Tenant (herein
called an "Extended Item Dispute Notice"), disputing (i) that the First-Class
Landlord Standard has been met, (ii) the Extended Item Cost and/or (iii) the
Useful Life Estimate. In the event that Landlord fails to give an Extended
Item Dispute Notice within such ten (10) Business Day period, Tenant shall
have the right to give a second notice to Landlord, which notice shall state
that if Landlord fails to give an Extended Item Dispute Notice within five (5)
Business Days after the giving of such second notice to Tenant, time being of
the essence with respect to the giving of the Extended Item Dispute Notice,
then Landlord shall be deemed to have waived its right to dispute the three
items set forth in the Extended Landlord Capital Item Notice. In the event
that Landlord fails to give an Extended Item Dispute Notice within such five
(5) Business Day period, or in the event that Landlord gives a timely Extended
Item Dispute Notice which fails to dispute one or more of the three items set
forth in the Extended Landlord Capital Item Notice, Landlord shall be deemed
to have waived its right to dispute either all of such items or the items
which Landlord failed to dispute in its Extended Item Dispute Notice, as the
case may be. If Tenant shall in good faith competitively bid the Extended
Landlord Capital Item to at least three (3) independent non-affiliated bidders
(but Tenant shall have no obligation hereunder to bid such work)
18
and include all such bids with the Extended Landlord Capital Item Notice, the
next-to-lowest bid obtained shall be deemed to be reasonably prudent and
economical (provided however that, subject to Landlord's dispute rights set
forth herein, it shall not be construed that a bid that is higher than such
next-to-lowest bid is automatically deemed not to be reasonably prudent or
economical). Tenant shall have the right, subject to the provisions of Article
11 and the provisions of this Section 3.04 setting forth Landlord's dispute
rights, to proceed with the performance of an Extended Landlord Capital Item
notwithstanding that Landlord may have given an Extended Item Dispute Notice
and the dispute set forth therein has not been resolved, or prior to the
expiration of the time period in which Landlord has the right to give an
Extended Item Dispute Notice.
(b) If Landlord gives a timely Extended Item Dispute Notice
and the parties are unable to resolve the dispute within five (5) Business
Days after the giving of the Extended Item Dispute Notice, either party, at
any time thereafter, may submit the dispute to a binding, expedited
arbitration in accordance with the provisions of Article 37. If an arbitrator
appointed in accordance with Article 37 determines that Tenant failed to meet
the First-Class Landlord Standard and that the repair, improvement or
alteration in question was unnecessary, then the repair, improvement or
alteration in question shall not be treated as an Extended Landlord Capital
Item, and Landlord shall not be required to reimburse Tenant for any portion
of the cost of such repair, improvement or alteration. If an arbitrator
appointed in accordance with Article 37 determines that Tenant failed to meet
the First-Class Landlord Standard, but that a less expensive repair,
improvement or alteration would have been made by a first-class owner of a
Comparable Building, then such arbitrator shall set an Extended Item Cost and
Useful Life Estimate to be used by the parties to calculate the appropriate
amount of Reimbursement Operating Expenses in connection therewith. If an
arbitrator appointed in accordance with Article 37 determines that Tenant
succeeded in meeting the First-Class Landlord Standard, but disagrees with the
Extended Item Cost and/or the Useful Life Estimate contained in the Extended
Landlord Capital Item Notice, then such arbitrator shall set an Extended Item
Cost and/or Useful Life Estimate to be used by the parties to calculate the
appropriate amount of Reimbursement Operating Expenses in connection
therewith.
(c) With respect to any repair, alteration or improvement
performed by Tenant which is treated as an Extended Landlord Capital Item,
Tenant shall provide to Landlord, within a reasonable time after completion of
such repair, alteration or improvement, (i) reasonable evidence of payment in
full for such repair, alteration or improvement together with an amortization
schedule for such item prepared in accordance with Section 3.01(i)(1), (ii)
copies of any sign-offs required to be issued by the New York City Department
of Buildings in connection therewith, (iii) lien waivers from the contractors
who shall have performed such repair, alteration or improvement, and (iv) a
certificate signed by Tenant's architect certifying as to the completion of
same; provided however that Landlord's obligation to pay any Landlord
Reimbursement Amounts payable by Landlord hereunder with respect to any such
repair, alteration or
19
improvement shall not be conditioned upon Landlord's receipt of any of the
foregoing items.
3.05. (a) At any time from and after the Expiration Date (or in the
case Tenant exercises the Surrender Option, at any time following the
Surrender Date with respect to the portion of Landlord Reimbursement Amounts
that are allocable to the Surrender Space, or in the case Tenant exercises an
Extension Option for less than the entire Premises, at any time following the
commencement date of the applicable Extension Term with respect to the portion
of Landlord Reimbursement Amounts that are allocable to the portion of the
Premises that was not extended), Tenant shall have the right to issue invoices
to Landlord for Landlord Reimbursement Amounts (each, a "Landlord
Reimbursement Notice"). Subject to the provisions of Section 3.04 and this
Section 3.05, Landlord shall pay to Tenant the Landlord Reimbursement Amounts
shown on any Landlord Reimbursement Notice within twenty (20) days after the
giving of such Landlord Reimbursement Notice. Subject to the provisions of
Section 3.04 and this Section 3.05, in the event that Landlord fails to pay
any Landlord Reimbursement Amounts within such twenty (20) day period, such
Landlord Reimbursement Amounts shall bear interest at the Interest Rate from
the date on which the Landlord Reimbursement Notice is deemed given in
accordance with the provisions of Article 29.
(b) In the event that this lease shall be terminated under the
provisions of Article 22, or in the event that Landlord shall reenter the
Premises under the provisions of Article 23, or in the event of the
termination of this lease, or of reentry, by or under any summary dispossess
or other proceeding or action or any provision of law by reason of default
hereunder on the part of Tenant, any Landlord Reimbursement Amounts that are
then or shall thereafter become due and payable to Tenant hereunder shall be
applied as a credit against any sums, including, without limitation, damages,
due Landlord hereunder (but only to the extent that Landlord otherwise
recovers the full measure of the damages to which it is entitled under this
lease).
(c) Landlord shall have the right, upon reasonable prior
notice to Tenant, which may be given by Landlord within ninety (90) days
following the giving of a Landlord Reimbursement Notice (such notice being
herein called the "Audit Notice"; and such period being herein called the
"Audit Period"), to have Landlord's designated Audit Representative (as
designated in such Audit Notice) examine Tenant's books and records
(collectively "Records") with respect to the Landlord Reimbursement Item set
forth in such Landlord Reimbursement Notice (provided that any such audit
shall be completed within the Audit Period) at a location designated by
Tenant, and, within ten (10) Business Days after completion of such audit
(herein called the "Dispute Period"), to give a notice to Tenant (herein
called a "Reimbursement Dispute Notice"), time being of the essence with
respect to the giving of both the Audit Notice and the Reimbursement Dispute
Notice, disputing (i) the appropriateness of any Landlord Reimbursement Item
set forth in a Landlord Reimbursement Notice or (ii) the calculation of any
Landlord Reimbursement Amount set forth in any Landlord Reimbursement
20
Notice; provided, that, in no event shall Landlord be entitled to dispute any
matter relating to any Extended Landlord Capital Item that Landlord was
entitled to dispute under Section 3.04 and which Landlord did not dispute, was
deemed to have waived or was otherwise resolved in Tenant's favor. For example
and without limitation, if Landlord failed to dispute an Extended Item Cost
set forth in a Extended Landlord Capital Item Notice, Landlord shall only have
the right to dispute that portion of such Extended Item Cost set forth in a
Landlord Reimbursement Notice that exceeds the Extended Item Cost set forth in
the Extended Landlord Capital Item Notice for the particular item in question.
In making such examination, Landlord agrees, and shall cause its Audit
Representative to agree, to keep confidential (A) any and all information
contained in such Records and (B) the circumstances and details pertaining to
such examination and any dispute or settlement between Landlord and Tenant
arising out of such examination, except as may be required (1) by applicable
Legal Requirements or (2) by a court of competent jurisdiction or arbitrator
or in connection with any action or proceeding before a court of competent
jurisdiction or arbitrator, or (3) to Landlord's attorneys, accountants and
other professionals in connection with any dispute between Landlord and
Tenant; and Landlord will confirm and cause its Audit Representative to
confirm such agreement in a separate written agreement, if requested by
Tenant. In the event that Landlord fails to give a timely Reimbursement
Dispute Notice, or gives a timely Reimbursement Dispute Notice which fails to
dispute one or more of the items set forth in the Landlord Reimbursement
Notice, Landlord shall be deemed to have waived its right to dispute either
all of such items or the items which Landlord failed to dispute in its
Reimbursement Dispute Notice (the "Undisputed Items"), as the case may be, and
notwithstanding the delivery by Landlord of a Reimbursement Dispute Notice,
Landlord shall pay the Landlord Reimbursement Amounts with respect to any
Undisputed Items within the period required by Section 3.05(a). If Landlord
gives a timely Reimbursement Dispute Notice and the parties are unable to
resolve the dispute within five (5) Business Days after the giving of the
Reimbursement Dispute Notice, either party, at any time thereafter, may submit
the dispute to a binding, expedited arbitration in accordance with the
provisions of Article 37. For purposes hereof, the term "Audit Representative"
shall mean either (x) a firm of Certified Public Accountants licensed to do
business in the State of New York and having not less than ten (10) partners,
principals or members, (y) an employee of Landlord or (z) a locally-recognized
professional having not less than ten (10) years of expertise in reviewing
and/or auditing operating expense statements of first-class office buildings
in midtown Manhattan. The Audit Representative shall not be retained by
Landlord on a contingency fee basis.
(d) If and to the extent that (x) Landlord shall fail to pay
any Landlord Reimbursement Amount within the Audit Period and Landlord shall
not have given a timely Audit Notice in connection therewith, or (y) Landlord
shall fail to pay any Landlord Reimbursement Amount within the Dispute Period
and Landlord shall not have given a timely Reimbursement Dispute Notice in
connection therewith, or (y) Tenant shall prevail in any arbitration with
respect to any Landlord Reimbursement Amount and Landlord fails to pay such
sum within twenty (20) days thereafter, then to the extent
21
applicable, Tenant shall have the right to offset such Landlord Reimbursement
Amount against the rent thereafter coming due under the Amended and Restated
Lease, together with interest at the Interest Rate from the date of the
Landlord Reimbursement Notice until the date such offset is taken.
(e) In addition to any other right herein set forth Tenant
shall have the right to pursue all rights and remedies available to it under
this lease, at law or in equity arising of Landlord's failure to make such
payments of Landlord Reimbursement Amounts on a timely basis.
3.06. The obligations of Landlord and Tenant under this Article 3
shall survive the expiration or earlier termination of this lease as well as
the restatement of this lease pursuant to the Amended and Restated Lease.
ARTICLE 4
Surrender Option
----------------
4.01. Upon not less than fifteen (15) months prior written notice to
Landlord (each herein called a "Surrender Notice") which may be given one or
more times during the period commencing on September 20, 2009 up to and
including September 30, 2011 (herein called the "Surrender Notice Period"),
Tenant may elect to surrender portions of the Premises (each such portion of
the Premises so surrendered is herein called "Surrender Space") consisting of
two (2) or more full Office Floors on or above the 6th floor of the Building
and containing not more than 280,326 rentable square feet in the aggregate,
all of which shall consist of full Office Floors. For example and without
limitation, Tenant may initially elect to surrender three full Office Floors
containing 90,510 rentable square feet of the Premises, and thereafter send
one or more Tranche 1 Surrender Notices during the Surrender Notice Period
surrendering additional full Office Floors (but not less than two (2) full
Office Floors in any Surrender Notice) comprising up to an additional 189,816
rentable square feet (i.e., the Surrender Space shall not exceed 280,326
rentable square feet in the aggregate, inclusive of any space surrendered
under the Original Lease). Any Surrender Notice shall identify the Surrender
Space and indicate the date on which such Surrender Space will be surrendered,
which date(s) may be no earlier than December 20, 2010, no later than December
31, 2012 and must correspond with the last day of a month (any such date is
herein called a "Surrender Date"). Any Surrender Space that is identified in a
particular Surrender Notice must be contiguous but such space need not be
contiguous with any Surrender Space identified in a subsequent Surrender Space
Notice; provided, that, Tenant shall give consideration to keeping Surrender
Space contiguous within all or any of the four elevator banks but shall have
absolutely no obligation whatsoever to do so. Notwithstanding any of the
foregoing, or anything to the contrary contained in the Amended and Restated
Lease, if all or any portion of the Surrender Space or Building Systems which
service the Surrender Space shall be partially or totally damaged or
22
destroyed by fire or other casualty prior to the Surrender Date, then the
Surrender Date with respect to any full floor portion of the Surrender Space
so affected shall be postponed until such time as Tenant fully satisfies its
restoration obligations with respect thereto in accordance with Section 19.02
and such affected portion of the Surrender Space is no longer untenantable (as
such term is defined in Section 19.04.)
4.02. In the event of the giving of any Surrender Notice and
provided the Surrender Fee has been paid to Landlord in accordance with
Section 4.04, then, effective as of the Surrender Date:
(a) this lease shall automatically, without further action or
execution by the parties, be deemed to be restated and amended as of the
Surrender Date, to reflect all of the terms and conditions set forth in the
form of Restated and Amended Lease annexed hereto as Exhibit J (the "Amended
and Restated Lease") modified only to complete, in accordance with the terms
hereof, those items left blank by necessity on the Amended and Restated Lease,
such as the description of the Premises, Tenant's Share and the amount of
Fixed Rent. Upon the request of either party, Landlord and Tenant shall sign
and deliver the Amended and Restated Lease annexed hereto, with the completion
of items as aforesaid; provided, however, that without limiting the remedies
available to either party for the other party's failure or refusal to so sign
and deliver said Amended and Restated Lease, such failure by either party
shall not in any way affect the aforesaid automatic restatement and amendment
of this lease;
(b) Tenant shall surrender the Surrender Space in the
condition required under Section 21.01 together with all equipment, tools and
supplies then currently used in the operation of the Real Property (as opposed
to those used in the operation of Tenant's business at the Premises) as well
as all lobby fixtures (but excluding any art work). Upon reasonable request by
Landlord, Tenant shall execute and deliver to Landlord any instrument
reasonably requested by Landlord to evidence the transfer of Tenant's right,
title and interest in any such equipment, tools, supplies and fixtures
(collectively, "ETS&F") to Landlord; it being understood and agreed that
Tenant is not making any guarantees, representations or warranties with
respect to the ETS&F and Landlord shall accept the ETS&F "as is" and with all
faults and defects and without any liability to Tenant whatsoever with respect
thereto. However, to the extent assignable and in Tenant's possession, on or
prior to the Surrender Date, Tenant shall deliver to Landlord all third party
guaranties, warranties and manuals relating to the ETS&F. Tenant shall be
entitled to retain the use of any horizontal and vertical cabling, conduit
and/or any mechanical and electrical equipment located in the common and/or
non-rentable areas of the Building (or such other areas outside of the common
and/or non-rentable areas of the Building so long as same do not adversely
affect the use of the Surrender Space) which is used in operating the portion
of the Premises not so surrendered; and
23
(c) Tenant shall, at its sole cost and expense (but subject to
its right to off-set the cost thereof against the Surrender Fee in accordance
with Section 4.04), install separate submeters (i) on each Office Floor of the
Building and any equipment that exclusively services any such Office Floor,
and (ii) for each separately demised retail and licensed space in or on the
Building and any equipment that exclusively services any such areas, so that
consumption of electricity in the Building can be measured (i) on a floor by
floor basis with respect to each Office Floor and (ii) separately for each
separately demised retail and licensed space in or on the Building, all in
substantial conformance with the methodology set forth in that certain
Comprehensive Sub-Metering System Installation Proposal dated April 6, 2005
from MCE Metering Services, Inc. or such other reasonable system recommended
by Landlord provided the cost to install and implement such system does not
exceed $500,000 unless Landlord agrees to incur such excess cost and such
system provides equal or better functionality at similar on-going operating
costs (such work herein called the "Submetering Work", and the cost thereof is
herein called the "Submetering Cost").
4.03. Landlord and Tenant agree that, as of expiration of the term
of this lease or as of the Surrender Date, as applicable, Landlord may either
(x) offer the same employment by Landlord (or by the property manager engaged
by Landlord) to any or all employees set forth on Schedule 2 (as such list may
be updated from time to time by Tenant so as to appropriately reflect the
employees employed as of the end of the term of this lease or as of the
Surrender Date, as the case may be) who are union employees under their then
current employment contracts or agreements, including any collective
bargaining agreements or (y) terminate the employment of any or all such
employees at the Real Property; provided, that, Landlord shall give
consideration to (but in no event be bound by) the recommendations of Tenant
with respect to the retention of any such employees. Landlord acknowledges
that, (i) if Landlord terminates any of such union employees or (ii) if
Landlord terminates any of the cleaning contractor, building engineer or
carpenter of the Building or requires those companies to reduce their
employees at the Real Property from those listed on Schedule 2 and, as a
result, any of the union employees engaged by such companies are terminated,
then certain termination benefits may be payable with respect to such
terminated employees. Landlord agrees that it shall be liable for the payment
of all such termination benefits and hereby agrees to indemnify and hold
harmless Tenant and any other Tenant Party from and against any loss, cost,
damage, liability or expense (including, without limitations, reasonable
attorneys' fees, court costs and disbursements) incurred by Tenant or any
other Tenant Party arising from or by reason of Landlord's failure to pay such
termination benefits as and when due and payable; provided, that, Tenant shall
be responsible for the payment of termination benefits payable to any of such
employees who provided services that solely benefited Tenant (as opposed to
the Building or Real Property as a whole), and Tenant shall indemnify and hold
Landlord harmless from and against any loss, cost, damage, liability or
expense (including, without limitations, reasonable attorneys' fees, court
costs and disbursements) incurred by Landlord arising from or by reason of
Tenant's failure to pay such termination benefits as and when due and payable.
Notwithstanding anything to the
24
contrary contained in this Section 4.03, Landlord and Tenant agree that Tenant
shall not have any liability hereunder with respect to the termination of
employment of any employees who do not spend the predominance of their time
providing services to the base building operations at the Real Property.
4.04. As a condition to the effectiveness of the exercise of the
Surrender Option and the termination of this lease as it relates to the
Surrender Space as of the Surrender Date, Tenant shall pay to Landlord an
amount equal to (1) the product of (x) the then annual Fixed Rent per rentable
square foot attributable to the Surrender Space, and (y) the rentable square
feet of the Surrender Space, less (2) the Submetering Cost (not to exceed
$500,000.00) (such amount is herein called the "Surrender Fee"). One-half of
the Surrender Fee (without taking into account the off-set of the Submetering
Cost) shall be payable by Tenant to Landlord upon the exercise of the
Surrender Option and the other half (after taking into account the off-set of
the Submetering Cost) upon the Surrender Date. To the extent the Submetering
Cost is not fully applied against the Surrender Fee as of the Surrender Date
(i.e., the Submetering Cost, subject to the $500,000.00 cap, exceeds the
Surrender Fee, such excess herein called "Unapplied Submetering Cost"), the
Unapplied Submetering Cost may be offset against the Surrender Fees payable
under the Amended and Restated Lease with respect to all additional Tranche 1
Surrender Space and Tranche 2 Surrender Space (as such terms are defined in
the Amended and Restated Lease). The Surrender Fee shall be accounted for by
the parties and considered for all purposes as a fee for the termination of
this lease as it relates to the Surrender Space and not as payment or
consideration for the use or occupancy of the Premises. Landlord shall have
the right to dispute the amount of Submetering Cost as being prudent (but not
the scope of the Submetering Work set forth in Section 4.02(c)) and economical
by submitting the matter to a binding, expedited arbitration in accordance
with the provisions of Article 37. If Tenant shall in good faith competitively
bid the Submetering Work to at least three (3) independent non-affiliated
bidders (but Tenant shall have no obligation hereunder to bid such work), the
next-to-lowest bid obtained shall be deemed to be reasonably prudent and
economical (provided however that, subject to Landlord's dispute rights set
forth herein, it shall not be construed that a bid that is higher than such
next-to-lowest bid is automatically deemed not to be reasonably prudent or
economical).
4.05. The provisions of this Article 4 shall survive the termination
of this lease and of any restatement of this lease into the Amended and
Restated Lease.
ARTICLE 5
Subordination
-------------
5.01. Subject to the provisions of any Conforming SNDA between
Tenant and any Superior Mortgagee, this lease, and all rights of Tenant
hereunder, are and shall be subject and subordinate to all mortgages which may
now or hereafter affect
25
the Premises, whether or not such mortgages shall also cover other lands
and/or buildings and/or leases, to each and every advance made or hereafter to
be made under such mortgages, and to all renewals, modifications, replacements
and extensions of such mortgages and spreaders and consolidations of such
mortgages. Any mortgage to which this lease is, at the time referred to,
subject and subordinate is herein called "Superior Mortgage" and the holder of
a Superior Mortgage is herein called "Superior Mortgagee".
5.02. Landlord hereby represents and warrants that there is no
Superior Mortgage as of the date hereof.
5.03. (a) Intentionally Omitted.
(b) With respect to any and all future Superior Mortgages, the
provisions of Section 5.01 shall be conditioned upon the execution and
delivery by and between Tenant and any such Superior Mortgagee of a
subordination, non-disturbance and attornment agreement substantially in the
form of Exhibit D annexed hereto with respect to a Superior Mortgagee (herein
called a "Superior Mortgagee SNDA Agreement") with such commercially
reasonable modifications as such Superior Mortgagee shall require, provided
that such modifications do not increase Tenant's monetary obligations as set
forth in this lease or in Exhibit D, modify the term of this lease, or
otherwise increase Tenant's obligations or liabilities or decrease or
adversely affect Tenant's rights as set forth in this lease or in Exhibit D to
more than a de minimis extent. Any dispute by Tenant that the form of the
Superior Mortgagee SNDA Agreement utilized by the Superior Mortgagee does not
meet the requirements set forth in this Section 5.03(b) shall be resolved by
arbitration pursuant to Article 37.
5.04. Tenant's interest in this lease, as this lease may be
modified, amended, restated or supplemented, shall not be subject or
subordinate to any other lease respecting all or any portion of the Real
Property, including, without limitation, any ground leases.
ARTICLE 6
Quiet Enjoyment
---------------
6.01. So long as Tenant is not in default hereunder beyond the
expiration of any applicable notice and cure periods, Tenant shall peaceably
and quietly have, hold and enjoy the Premises without hindrance, ejection or
molestation by Landlord or any person lawfully claiming through or under
Landlord, subject, nevertheless, to the provisions of this lease and to
Superior Mortgages. This covenant shall be construed as a covenant running
with the Land, and is not, nor shall it be construed as, a personal covenant
of Landlord, except to the extent of Landlord's interest in the Real Property
and only so long as such interest shall continue, and thereafter Landlord
shall be relieved of
26
all liability hereunder thereafter arising and this covenant shall be binding
only upon subsequent successors in interest of Landlord's interest in this
lease, to the extent of their respective interests, as and when they shall
acquire the same, and so long as they shall retain such interest, but nothing
contained herein shall be deemed to relieve Landlord of any liability of
Landlord which has accrued or arisen through the date on which Landlord
transfers its interest in the Premises to a third party.
ARTICLE 7
Assignment, Subletting and Mortgaging
-------------------------------------
7.01. Subject to the provisions of this Article 7, Tenant may (a)
assign or otherwise transfer this lease or the term and estate hereby granted
without Landlord's consent, provided that no assignee of this lease shall be a
person that is entitled to sovereign immunity, and/or (b) for so long as a
Citibank Tenant is the tenant under this lease (but not otherwise), mortgage,
pledge, encumber or otherwise hypothecate this lease or the Premises or any
part thereof in any manner whatsoever (including, without limitation, entering
into any Leasehold Mortgage) without Landlord's consent and/or (c) sublet the
Premises or any part thereof (including, without limitation, any portion of
the roof) and allow the same to be used, occupied and/or utilized by anyone
other than Tenant at any time and from time to time without Landlord's
consent, provided and upon the condition that (i) this lease is in full force
and effect, (ii) the sublease conforms with the provisions of Sections 7.06
and 7.07, (iii) no subtenant shall be a person that is entitled to sovereign
immunity and (iv) no sublease shall be for a Prohibited Use. A list of
subleases and other third party agreements that encumber the Real Property as
of the date hereof is attached hereto as Schedule 3 (herein called "Current
Occupancy Agreements"). Landlord acknowledges that Tenant is entitled to all
revenue generated from the Current Occupancy Agreements as well as from any
other subleases, licenses, assignments or other agreements entered into by
Tenant during the term of this lease with respect to all or any portion of the
Real Property and Tenant acknowledges that it is responsible for all
obligations of the lessor under the Current Occupancy Agreements, whether
arising before or after the date of this lease. Anything contained in this
Article 7 to the contrary notwithstanding, in no event shall Tenant or any
subtenant (of any tier) of Tenant market all or any portion of the Office
Floors to third parties for sublease, nor enter into any third-party sublease
of all or any portion of an Office Floor for the twelve (12) month period
commencing immediately after (a) the date on which the Surrender Notice was
given and/or (b) the date on which an Extension Election Notice with respect
to the Option Two Extension Premises or the Option Three Extension Premises
was given; it being understood and agreed that the foregoing shall not apply
to any subleases to Affiliates of Tenant or with respect to any of the Current
Occupancy Agreements.
7.02. For purposes of this lease, the following terms shall have the
following meanings:
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"Affiliate" shall mean, with respect to any person or entity, any
other person or entity which, directly or indirectly, controls, is
controlled by, or is under common control with, the person or entity in
question.
"control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used
with respect to any person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through the ownership of
voting securities, by contract or otherwise. Notwithstanding the
foregoing, a person shall be deemed to have "control" of a public
corporation if it is the largest shareholder of such corporation and owns
or has voting control over not less than twenty-five percent (25%) of all
of the then voting stock of such corporation.
"Corporate Successor" shall mean either (i) any corporation or other
entity which is a successor to a Citibank Tenant by merger, consolidation
or reorganization or (ii) a purchaser of all or substantially all of the
assets of a Citibank Tenant.
"Named Tenant" shall mean Citibank, N.A.
"Citibank Tenant" shall mean any tenant under this lease from time
to time that is either (i) the Named Tenant, (ii) an Affiliate of the
Named Tenant, (iii) an immediate or remote Corporate Successor of either
the Named Tenant or an Affiliate of the Named Tenant or (iv) an Affiliate
of any such immediate or remote Corporate Successor.
7.03. If this lease be assigned, Landlord may collect rent from the
assignee. If the Premises or any part thereof are sublet or used or occupied
by anybody other than Tenant, whether or not in violation of this lease,
Landlord may, after Tenant has defaulted in its obligations hereunder beyond
notice and the expiration of any applicable cure periods, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Fixed Rent and Additional Charges herein reserved, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver
of any of the provisions of Section 7.01 or any other provision of this lease,
or the acceptance of the assignee, subtenant or occupant as tenant, or a
release of Tenant from the performance by Tenant of Tenant's obligations under
this lease.
7.04. Any assignment or transfer of this lease shall be made only
if, and shall not be effective until, the assignee (except in the case where
Tenant and such assignee are the same legal entity) shall execute, acknowledge
and deliver to Landlord an agreement whereby the assignee shall assume, from
and after the effective date of such assignment (or, in the case of an entity
which has purchased all or substantially all of Tenant's assets or which is a
successor to Tenant by merger, acquisition, consolidation or change of
control, from and after the Commencement Date) the obligations of this lease
28
on the part of Tenant to be performed or observed and whereby the assignee
shall agree that the provisions of this Article 7 shall, notwithstanding such
assignment or transfer, continue to be binding upon such assignee in respect
of all future assignments and transfers. The Named Tenant and any subsequent
assignor of this lease covenants that, notwithstanding any assignment or
transfer, whether or not in violation of the provisions of this lease, and
notwithstanding the acceptance of any of the Fixed Rent and/or Additional
Charges by Landlord from an assignee, transferee, or any other party, the
Named Tenant (and any subsequent assignor of this lease) shall remain fully
liable for the payment of the Fixed Rent and Additional Charges and for the
other obligations of this lease on the part of Tenant to be performed or
observed.
7.05. (a) The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this lease on Tenant's part to be performed or observed
shall not be discharged, released or impaired in any respect by any agreement
or stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this lease; provided however, that in the case of
any modification of this lease after an assignment of this lease which
increases the obligations of or decreases the rights of Tenant, the Named
Tenant and any subsequent assignor of this lease shall not be liable for any
such increase or decrease unless it has given its written consent thereto
(which consent may be granted or withheld in such party's sole discretion),
provided and on the condition that the Tenant under this lease at the time of
such modification is not an Affiliate of the Named Tenant or such subsequent
assignor, as the case may be, and Landlord has been notified in writing
thereof. Citibank, N.A. hereby expressly waives the right to assert any legal
or equitable principle that would permit Citibank, N.A. to claim that it is
not primarily liable as Tenant under this lease at any time following an
assignment of this lease by Citibank, N.A., except to the extent Landlord
agreed in writing to release Citibank, N.A. from liability under this lease or
otherwise agreed in writing that Citibank, N.A. would not be primarily liable
under this lease; it being understood and agreed that the foregoing shall not
vitiate the provisions of the preceding sentence respecting any modification
of this lease made after an assignment of this lease.
(b) Except as otherwise provided in this Article, the listing
of any name other than that of Tenant, whether on the doors of the Premises or
the Building directory, or otherwise, shall not operate to vest any right or
interest in this lease or in the Premises.
(c) Any assignment, sublease, license or other transfer, and
any mortgage, pledge, encumbrance or other hypothecation, made in violation of
the provisions of this Article 7 shall be null and void.
7.06. No sublease shall be for a term (including any renewal rights
contained in the sublease) extending beyond the Expiration Date.
29
7.07. With respect to each and every sublease or subletting under
the provisions of this lease entered into after the date hereof (other than
the Current Occupancy Agreements, including any amendments or modifications
thereto, whether entered into prior to, or following, the date hereof), it is
further agreed that:
(a) No such sublease shall be valid, and no subtenant shall
take possession of the Premises or any part thereof, until an executed
counterpart of the Sublease Document has been delivered to Landlord;
(b) Each such sublease shall provide that, subject to the
provisions of any Landlord's Nondisturbance Agreement between Landlord and the
subtenant thereunder, such sublease shall be subject and subordinate to this
lease and to any matters to which this lease is or shall be subordinate, and
that in the event of termination, reentry or dispossess by Landlord under this
lease Landlord may, at its option, take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, and such subtenant
shall, at Landlord's option, attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not be (i) liable for
any previous act or omission of Tenant under such sublease, (ii) subject to
any credit, offset, claim, counterclaim, demand or defense which such
subtenant may have against Tenant, (iii) bound by any previous modification of
such sublease not consented to by Landlord or by any previous payment of any
amount due under this lease more than one (1) month in advance of the due date
thereof, (iv) bound by any covenant of Tenant to undertake or complete any
construction of the Premises or any portion thereof, (v) required to account
for any security deposit of the subtenant other than any security deposit
actually delivered to Landlord by Tenant, (vi) responsible for any monies
(including without limitation any work allowance) owing by Tenant to the
credit of subtenant, (vii) bound by any obligation to make any payment to such
subtenant or grant any credits, except for services, repairs, maintenance and
restoration provided for under the sublease to be performed after the date of
such attornment, or (viii) required to remove any person occupying the
Premises or any part thereof (the matters described in the foregoing clauses
(i) through (viii) being herein collectively called the "Excluded
Obligations");
(c) The provisions of Section 18.02 shall apply in connection
with any claim made by any subtenant against Landlord or any Landlord Party in
connection with the Excluded Obligations; and
(d) Each sublease shall provide that the subtenant may not
assign its rights thereunder or further sublet the space demised under the
sublease, in whole or in part, except in compliance with all of the terms and
provisions of this Article 7. A sublease meeting all of the requirements set
forth in this Section is herein called a "Sublease Document".
7.08. Each subletting shall be subject to all of the covenants,
agreements, terms, provisions and conditions contained in this lease. Tenant
shall and will remain
30
fully liable for the payment of the Fixed Rent and Additional Charges due and
to become due hereunder and for the performance of all the covenants,
agreements, terms, provisions and conditions contained in this lease on the
part of Tenant to be performed and all acts and omissions of any licensee or
subtenant or anyone claiming under or through any subtenant which shall be in
violation of any of the obligations of this lease, and any such violation
shall be deemed to be a violation by Tenant. Tenant further agrees that
notwithstanding any such subletting, no other and further subletting of the
Premises by Tenant or any person claiming through or under Tenant shall or
will be made except upon compliance with and subject to the provisions of this
Article.
7.09. (a) For purposes hereof, the term "Landlord's Non-Disturbance
Agreement" shall mean a Non-Disturbance Agreement substantially in the form
annexed hereto as Exhibit G.
(b) Landlord shall, within ten (10) Business Days after
Tenant's request accompanied by an executed counterpart of a Qualifying
Sublease, deliver a Landlord's Non-Disturbance Agreement to Tenant and the
subtenant under such Qualifying Sublease.
(c) For purposes hereof, the term "Qualifying Sublease" shall
mean a direct sublease:
(i) which is with a subtenant which is not entitled to
sovereign immunity, and whose intended use of the Premises, or the
relevant part thereof, will not violate the terms of this lease and is in
keeping with the standards of the Building which are consistent with
first class office buildings located in Manhattan that are comparable to
the Building (herein called "Comparable Buildings");
(ii) which is with a subtenant which has, or whose
guarantor of such subtenant's obligations under such Qualifying Sublease
(which guarantee shall be in a form reasonably acceptable to Landlord)
has, as of the date of execution of such Qualifying Sublease, a net
worth, exclusive of good will, computed in accordance with GAAP, equal to
or greater than ten (10) times the annual Minimum Sublease Rent and
Landlord has been provided with proof thereof reasonably satisfactory to
Landlord;
(iii) which meets all of the applicable requirements of
this Article 7 (including, without limitation, the provisions of Section
7.07);
(iv) which demises not less than one full Office Floor;
provided, that the requirements of this subclause (iv) shall not apply in
the case of any retail space, the cafeteria and/or fitness center;
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(v) which is for a sublease term of not less than five
(5) years;
(vi) which provides for rentals which on a rentable
square foot basis are equal to or in excess of the Fixed Rent, Operating
Expenses and Net Taxes Additional Charges for such period (herein called
the "Minimum Sublease Rent"), or, in the alternative, provides for a
rental rate that is less than the Minimum Sublease Rent, but will
automatically be increased to an amount that is equal to all of the same
economic terms and conditions (including, without limitation, Fixed Rent,
Operating Expenses and Net Taxes Additional Charges) that would have been
applicable as between Landlord and Tenant hereunder with respect to the
space demised by such Qualifying Sublease for the period commencing on
such date of attornment and ending on the expiration date of such
Qualifying Sublease; and
(vii) grants to the subtenant no greater rights and
imposes on the subtenant no lesser obligations than the rights granted to
and obligations imposed on Tenant, respectively, pursuant to the form of
Amended and Restated Lease, grants no lesser rights to Tenant, as
sublessor, and imposes no greater obligations on Tenant, as sublessor,
than the rights granted to and obligations imposed on Landlord pursuant
to the form of Amended and Restated Lease.
ARTICLE 8
Compliance with Laws
--------------------
8.01. Each of Tenant and Landlord shall give prompt notice to the
other of any notice it receives of the violation of any Legal Requirements
with respect to the Premises or the use or occupancy thereof. Tenant shall be
responsible for compliance with all Legal Requirements in respect of the Real
Property, whether or not such compliance requires work which is structural or
non-structural, ordinary or extraordinary, foreseen or unforeseen; provided,
however, Landlord shall be responsible for any such compliance as it relates
to Landlord's Restoration Obligations, if any, under Article 19. Tenant shall
pay all the reasonable out-of-pocket costs and all the reasonable
out-of-pocket expenses, and all the fines, penalties and damages which may be
imposed upon Landlord by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section 8.01.
However, Tenant need not comply with any such Legal Requirement so long as
Tenant shall be contesting the validity thereof, or the applicability thereof
to the Premises, in accordance with Section 8.02. Landlord shall pay all the
reasonable out-of-pocket costs and all the reasonable out-of-pocket expenses,
and all the fines, penalties and damages which may be imposed upon Tenant by
reason of or arising out of Landlord's failure to fully and promptly comply
with and observe the provisions of this Section 8.01. However, Landlord need
not
32
comply with any such Legal Requirement so long as Landlord shall be contesting
the validity thereof, or the applicability thereof to the Premises, in
accordance with Section 8.02.
8.02. (a) Tenant, at its expense, after notice to Landlord, may
contest, by appropriate proceedings prosecuted diligently and in good faith,
the validity, or applicability to the Premises, of any Legal Requirement,
provided that (a) Landlord shall not be subject to a bona fide threat of
criminal penalty or to prosecution for a crime, or any other fine or charge
(unless Tenant agrees in writing to indemnify, defend and hold Landlord
harmless from and against such non-criminal fine or charge), nor shall the
Premises or any part thereof, be subject to a bona fide threat of being
condemned or vacated, nor shall the Building or Land, or any part thereof, be
subjected to a bona fide threat of any lien (unless Tenant shall remove such
lien by bonding or otherwise) or encumbrance, by reason of non-compliance or
otherwise by reason of such contest; (b) except as otherwise provided in this
Section 8.02, before the commencement of such contest, Tenant shall furnish to
Landlord a cash deposit or other security in amount, form and substance
reasonably satisfactory to Landlord and shall indemnify Landlord against the
reasonable cost thereof and against all liability for damages, interest,
penalties and expenses (including reasonable attorneys' fees and expenses),
resulting from or incurred in connection with such contest or non-compliance
(provided, however, that Tenant shall not be required to furnish any such cash
deposit or other security if Tenant is a Citibank Tenant or if a non-Citibank
Tenant or the guarantor of a non-Citibank Tenant shall then have a net worth,
exclusive of good will, determined in accordance with GAAP of not less ten
(10) times the potential cost of non-compliance, as reasonably determined by
Landlord); and (c) Tenant shall keep Landlord advised as to the status of such
proceedings. Without limiting the application of the above, Landlord shall be
deemed subject to a bona fide threat of prosecution for a crime if Landlord or
any officer, director, partner, shareholder or employee of any of Landlord, as
an individual, is charged with a crime of any kind or degree whatever, unless
such charge is withdrawn or disposed of before Landlord or such officer,
director, partner, shareholder or employee (as the case may be) is required to
plead or answer thereto.
(b) Landlord, at its expense, after notice to Tenant, may
contest, by appropriate proceedings prosecuted diligently and in good faith,
the validity, or applicability to the Premises, of any Legal Requirement,
provided that (a) Tenant shall not be subject to a bona fide threat of
criminal penalty or to prosecution for a crime, or any other fine or charge
(unless Landlord agrees in writing to indemnify, defend and hold Tenant
harmless from and against such non-criminal fine or charge), nor shall the
Premises or any part thereof, be subject to a bona fide threat of being
condemned or vacated, nor shall the Building or Land, or any part thereof, be
subjected to a bona fide threat of any lien (unless Landlord shall remove such
lien by bonding or otherwise) or encumbrance, by reason of non-compliance or
otherwise by reason of such contest; (b) except as otherwise provided in this
Section 8.02, before the commencement of such contest, Landlord shall furnish
to Tenant a cash deposit or other security in amount, form
33
and substance reasonably satisfactory to Tenant and shall indemnify Tenant
against the reasonable cost thereof and against all liability for damages,
interest, penalties and expenses (including reasonable attorneys' fees and
expenses), resulting from or incurred in connection with such contest or
non-compliance (provided, however, that Landlord shall not be required to
furnish any such cash deposit or other security if Landlord shall then have a
net worth, exclusive of good will and its interest in the Real Property,
determined in accordance with GAAP of not less ten (10) times the potential
cost of non-compliance, as reasonably determined by Tenant); and (c) Landlord
shall keep Tenant advised as to the status of such proceedings. Without
limiting the application of the above, Tenant shall be deemed subject to a
bona fide threat of prosecution for a crime if Citibank Tenant or any officer,
director, partner, shareholder or employee of any of Citibank Tenant, as an
individual, is charged with a crime of any kind or degree whatever, unless
such charge is withdrawn or disposed of before Citibank Tenant or such
officer, director, partner, shareholder or employee (as the case may be) is
required to plead or answer thereto.
8.03. Notwithstanding anything to the contrary contained herein,
Tenant shall not be deemed to be in default of Tenant's obligations under this
lease if Tenant shall fail to comply with any such Legal Requirement if, and
only if:
(a) such Legal Requirement obligation is limited to the
interior of the Premises, is not related to Hazardous
Materials, is not structural in nature and the failure
to comply with such Legal Requirement will not have an
adverse effect on Building Systems or on the health or
safety of any occupant of or visitor to the Building;
and
(b) the failure to comply with such Legal Requirement will
not (i) subject Landlord or any Superior Mortgagee to
prosecution for a crime or any other fine or charge
(unless Tenant agrees in writing to indemnify, defend
and hold such parties harmless from and against any such
fine or charge and actually pays any such fine or
charge), (ii) subject the Premises or any part thereof
to being condemned or vacated, or (iii) subject the
Building or Land, or any part thereof, to any lien or
encumbrance which is not removed or bonded within the
time period required under this lease.
34
ARTICLE 9
Insurance
---------
9.01. Tenant shall not knowingly violate, or knowingly permit the
violation of, any condition imposed by any insurance policy then issued in
respect of the Real Property and shall not do, or permit anything to be done,
or keep or permit anything to be kept in the Premises which would subject
Landlord or any Superior Mortgagee to any liability or responsibility for
personal injury or death or property damage, or which would result in
insurance companies of good standing refusing to insure the Real Property, or
which would result in the cancellation of or the assertion of any defense by
the insurer in whole or in part to claims under any policy of insurance in
respect of the Real Property; provided, however, that in no event shall the
mere use of the Premises for customary and ordinary office purposes or for any
of the current retail uses at the Premises or any other current use or uses of
the Real Property, as opposed to the manner of such use, constitute a breach
by Tenant of the provisions of this Section 9.01.
9.02. (a) If, by reason of any failure of Tenant to comply with the
provisions of this lease, the premiums on Landlord's insurance that it is
required to maintain hereunder shall be higher than they otherwise would be,
and Landlord shall notify Tenant of such fact and, if Tenant shall not, as
soon as reasonably practicable, but in no event more than twenty (20) days
thereafter, rectify such failure so as to prevent the imposition of such
increase in premiums, then Tenant shall pay to Landlord within thirty (30)
days after demand accompanied by reasonable supporting documentation, for that
part of such premiums which shall have been charged to Landlord due to such
failure on the part of Tenant.
(b) If, by reason of any failure of Landlord to comply with
any provision of this lease, the premiums on Tenant's insurance that it is
required to maintain hereunder shall be higher than they otherwise would be,
and Tenant shall notify Landlord of such fact and, if Landlord shall not, as
soon as reasonably practicable, but in no event more than twenty (20) days
thereafter, rectify such failure so as to prevent the imposition of such
increase in premiums, then Landlord shall reimburse Tenant for that part of
such insurance premiums which shall have been charged to Tenant due to such
failure on the part of Landlord within thirty (30) days after demand
accompanied by reasonable supporting documentation.
(c) A schedule or "make up" of rates for the Real Property or
the Premises, as the case may be, issued by the New York Fire Insurance Rating
Organization or other similar body making rates for insurance for the Real
Property or the Premises, as the case may be, shall be prima facie evidence
(absent manifest error) of the facts therein stated and of the several items
and charges in the insurance rate then applicable to the Real Property or the
Premises, as the case may be.
35
9.03. Tenant, at its expense, shall maintain at all times during the
term of this lease (a) except if Tenant exercised the Insurance Election
pursuant to Section 9.09, "all risk" property insurance covering the Base
Elements to a limit of not less than the full replacement value thereof (as
from time to time reasonably designated by Tenant and promptly following
Landlord's request, Tenant will advise Landlord of Tenant's designation of
full replacement value), such insurance to include a replacement cost
endorsement, (b) boiler and machinery insurance to the extent Tenant maintains
and operates such machinery with minimum limits of $100,000,000 per accident,
(c) "all risk" property insurance covering all present and future Tenant's
Property and Leasehold Improvements to a limit of not less than the full
replacement value thereof, (d) workers' compensation in statutory limits and
employers' liability in minimum limits of $1,000,000 per occurrence, (e)
commercial general liability insurance, including contractual liability, in
respect of the Premises and the conduct of operation of business therein, with
limits of not less than One Hundred Million Dollars ($100,000,000) combined
single limit for bodily injury and property damage liability in any one
occurrence, and (f) when Alterations are in progress, the insurance specified
in Section 11.03. The limits of such insurance shall not limit the liability
of Tenant hereunder or any covenant of Tenant hereunder to act with diligence
with respect thereto. Tenant shall name Landlord (and any party as Landlord
may reasonably request in writing) as an additional insured with respect to
all of such insurance (other than required under item (d) above) and if Tenant
is not self insuring, with the right to make claims under the insurance
contract, provided that Landlord provides Tenant with at least seven (7) days
notice in advance of making any such claim and further provided that Landlord
will not adversely effect any prosecution of claim by Tenant thereunder, and
shall deliver to Landlord and any additional insureds, prior to the
Commencement Date, certificates of insurance issued by the insurance company
or its authorized agent together with, in the case of commercial general
liability insurance, additional insured endorsements. Such insurance may be
carried under umbrella or excess policies, or in a blanket policy covering the
Premises and other locations of Tenant, if any. Tenant shall procure and pay
for renewals of such insurance from time to time before the expiration
thereof, and Tenant, upon Landlord's request, shall deliver to Landlord and
any additional insureds a certificate of such renewal policy. All such
policies shall be issued by companies of recognized responsibility licensed to
do business in New York State and rated by Best's Insurance Reports or any
successor publication of comparable standing and carrying a rating of A- VIII
or better or the then equivalent of such rating, and all such policies shall
contain a provision whereby the same cannot be canceled or materially modified
unless Landlord and any additional insureds are given at least thirty (30)
days prior written notice of such cancellation or material modification. All
proceeds from any insurance coverages maintained by Tenant under this Article
9 (other than from commercial general liability insurance, if any) shall be
payable solely to Tenant. The parties shall cooperate with each other in
connection with prosecution of claims to recover the insurance proceeds for
covered losses and with the collection of any insurance monies that may be due
in the event of loss and shall execute and deliver to each other such proofs
of loss
36
and other instruments which may be reasonably required to recover any such
insurance monies.
9.04. Landlord agrees to have included in each of the insurance
policies insuring against loss, damage or destruction by fire or other
casualty required to be carried pursuant to the provisions of Section 9.09, a
waiver of the insurer's right of subrogation against Tenant during the term of
this lease or, if such waiver should be unobtainable or unenforceable, (i) an
express agreement that such policy shall not be invalidated if the assured
waives the right of recovery against any party responsible for a casualty
covered by the policy before the casualty or (ii) any other form of permission
for the release of Tenant. Tenant agrees to have included in each of its
insurance policies insuring the Tenant's Property and Leasehold Improvements
(and to the extent Tenant does not make the election under Section 9.09, the
Base Elements) against loss, damage or destruction by fire or other casualty,
a waiver of the insurer's right of subrogation against Landlord during the
term of this lease or, if such waiver should be unobtainable or unenforceable,
(A) an express agreement that such policy shall not be invalidated if the
assured waives the right of recovery against any party responsible for a
casualty covered by the policy before the casualty or (B) any other form of
permission for the release of Landlord. If such waiver, agreement or
permission shall not be, or shall cease to be, obtainable from any party's
then current insurance company, the insured party shall so notify the other
party promptly after learning thereof, and shall use commercially reasonable
efforts to obtain the same from another insurance company described in Section
9.03 hereof. Landlord hereby releases Tenant, and Tenant hereby releases
Landlord, with respect to any claim (including a claim for negligence) which
it might otherwise have against such party, for loss, damage or destruction
with respect to its property occurring during the term of this lease to the
extent to which it is, or is required to be, insured under a policy or
policies containing a waiver of subrogation or permission to release
liability, as provided in the preceding subdivisions of this Section. Nothing
contained in this Section shall be deemed to relieve Landlord or Tenant of any
duty imposed elsewhere in this lease to repair, restore or rebuild or to
nullify, to the extent applicable, any abatement of rents provided for
elsewhere in this lease.
9.05. Landlord may from time to time require that the amount of the
insurance to be maintained by Tenant under Section 9.03 be reasonably
increased, so that the amount thereof adequately protects Landlord's
interests; provided, however, that the amount to which such insurance
requirements may be increased shall not exceed an amount then being required
by landlords of Comparable Buildings. In the event that Tenant disputes the
reasonableness of any such required increase in the amount of the insurance to
be maintained by Tenant under Section 9.03, Tenant shall have the right to
submit such dispute to expedited arbitration under Article 37.
9.06. If Citibank, N.A. or its Corporate Successor exercises the
Insurance Election pursuant to the provisions of Section 9.09 hereof, Landlord
shall thereafter maintain in respect of the Base Elements at all times during
the term of this
37
lease, (a) "all risk" property insurance covering the Base Elements to a limit
of not less than the full replacement value thereof (as from time to time
reasonably designated by Landlord), such insurance to include a replacement
cost endorsement, (b) boiler and machinery insurance to the extent Landlord
maintains and operates such machinery with minimum limits of $100,000,000 per
accident, (c) business interruption or loss of rents insurance, and (d) any
other insurance required to be carried by Tenant pursuant to Section 9.07 and,
as its relates to Landlord's Restoration Obligation, Section 11.03. Landlord
shall name Tenant (and any party as Tenant may reasonably request in writing)
as an additional insured with respect to all such insurance and shall deliver
to Tenant and any additional insureds, within thirty (30) days of Tenant's
exercise of the Insurance Election, certificates of insurance issued by the
insurance company or its authorized agent with respect thereto. Such insurance
may be carried under umbrella or excess policies, or in a blanket policy
covering the Premises and other locations of Landlord, if any, provided that
each such policy shall in all respects comply with this Article 9 and shall
specify that the portion of the total coverage of such policy that is
allocated to the Premises is in the amounts required pursuant to this Section
9.03. Landlord shall procure and pay for renewals of such insurance from time
to time before the expiration thereof, and Landlord, upon Tenant's request,
shall deliver to Tenant and any additional insureds a certificate of such
renewal policy. All such policies shall be issued by companies of recognized
responsibility licensed to do business in New York State and rated by Best's
Insurance Reports or any successor publication of comparable standing and
carrying a rating of A- VIII or better or the then equivalent of such rating,
and all such policies shall contain a provision whereby the same cannot be
canceled or modified unless any additional insureds are given at least thirty
(30) days' prior written notice of such cancellation or modification.
9.07. Notwithstanding anything to the contrary contained herein, the
party hereunder that is obligated to insure the Base Elements shall obtain
terrorism insurance in such amounts and types of coverage that are
commercially available; provided that such amounts and types of coverage are
consistent with those that are then generally required of, or carried by,
owners of Comparable Buildings that are Real Estate Investment Trusts and
taking into account the tenancy of such buildings (including the Building);
provided, that, if Tenant is self insuring with respect to the Base Elements,
Tenant shall only be required to obtain terrorism insurance to the extent
available at commercially reasonable rates.
9.08. Notwithstanding anything to the contrary contained in this
lease, Citibank, N.A. or its Corporate Successor shall have the option, either
alone or in conjunction with Citigroup Inc., Tenant's ultimate parent
corporation, or any subsidiaries or affiliates of Citigroup Inc., to maintain
self insurance and/or provide or maintain any insurance required by this lease
under blanket insurance policies maintained by Tenant or Citigroup Inc., or
provide or maintain insurance through such alternative risk management
programs as Citigroup Inc. may provide or participate in from time to time
(such types of insurance programs being herein collectively and severally
referred to as
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"self insurance"), provided (i) the same does not thereby decrease the
insurance coverage or limits sets forth in Section 9.03 and (ii) Citibank,
N.A. or its Corporate Successor has a long term credit rating of at least A
(or its equivalent) by Standard & Poors, or any successor in interest, and
Moody's, or any successor in interest (herein called the "Rating Threshold").
Tenant hereby advises Landlord that as of the date hereof, and until further
notice from Tenant, Tenant elects to self insure. Any self insurance shall be
deemed to contain all of the terms and conditions applicable to such insurance
required to be maintained by Tenant under this lease, including, without
limitation, a full waiver of subrogation, as required in Section 9.04. If
Tenant elects to self-insure, then, with respect to any claims which may
result from incidents occurring during the term of this lease, the obligations
of Tenant to Landlord under this lease with respect thereto shall survive the
expiration or earlier termination of this lease to the same extent as the
insurance required would survive. For any period that the Rating Threshold is
not satisfied (but only during such period), Tenant shall not be entitled to
self insure as provided in this Section 9.08, and Tenant shall, within thirty
(30) days following the date on which Citibank, N.A. fails to meet the Rating
Threshold, obtain the insurance required to be maintained by Tenant under
Section 9.03 through one or more carriers each having a long term credit
rating of at least A (or its equivalent) by Standard & Poors, or any successor
in interest, and Moody's, or any successor in interest. At Landlord's option,
Tenant shall obtain such insurance through carrier(s) having a long term
credit rating of AA (or its equivalent) by Standard & Poors, or any successor
in interest, and Moody's, or any successor in interest; provided, however,
Landlord shall be obligated to pay Tenant for the incremental cost of such
insurance in excess of $225,000 per annum, as such $225,000 threshold may be
increased on an annual basis by the actual increase in costs to Tenant to
obtain such additional coverage but in no event shall any such increase exceed
five percent (5%) in any year. Tenant shall provide Landlord with reasonable
evidence of such coverage and the cost thereof.
9.09. At any time during the last two years of the term of this
lease (unless Citibank, N.A. or its Corporate Successor has delivered a
Surrender Notice) prior to the occurrence of a casualty described in Article
19 (or after the occurrence of a casualty to which the damage resulting
therefrom has been restored pursuant to the terms of this lease) and subject
to the provisions of this Section 9.09, Citibank, N.A. or its Corporate
Successor may elect (herein called the "Insurance Election") to require
Landlord to maintain the insurance coverages set forth in Section 9.06 and
Section 9.07 (in accordance with the standards set forth therein) by
delivering written notice to that effect to Landlord (herein called an
"Insurance Notice"). Not later than thirty (30) days after Landlord's receipt
of an Insurance Notice, Landlord will provide to Tenant a quote from
Landlord's insurance carrier specifying the cost (including, without
limitation, applicable deductibles) of obtaining the insurance coverages
required under Section 9.06 and Section 9.07 (the "Insurance Quote"). Not
later than thirty (30) days (or such shorter period reasonably designated by
Landlord as is then commercially reasonable taking into account the then
market conditions) after Tenant's receipt of the Insurance Quote, Tenant shall
notify Landlord of Tenant's election (1) to accept the Insurance
39
Quote, in which case, Tenant's obligation to reimburse Landlord for insurance
costs under this Section 9.09 shall be capped at the Insurance Quote (the
"Insurance Cap"), as such Insurance Cap may increased by the actual increase
in such insurance costs to Landlord; or (2) to rescind its exercise of its
Insurance Election, in which case the Insurance Election shall be deemed
rescinded ab initio. If Tenant fails to notify Landlord within said thirty
(30) day period (or such shorter period reasonably designated by Landlord as
is then commercially reasonable taking into account the then market
conditions) of Tenant's election, Tenant shall be deemed to have rescinded its
previously made Insurance Election ab initio. If Tenant elects to accept the
Insurance Quote or Landlord and Tenant otherwise mutually agree to the amount
of such insurance costs that Tenant shall be responsible for, then in any such
case, Landlord shall, within ten (10) days of any such election or agreement
by Landlord and Tenant, as the case may be, obtain the requisite insurance
coverages set forth in Section 9.06 and Section 9.07 and Tenant shall maintain
such coverage until the expiration of said ten (10) day period. Within thirty
(30) days of presentation of an invoice therefor (together with reasonable
supporting documentation evidencing same), Tenant shall reimburse Landlord for
the insurance expenses incurred by Landlord in keeping in full force and
effect the insurance that Landlord is required to carry in accordance with
Sections 9.06 and 9.07; provided that, Tenant shall have no obligation to
reimburse Landlord any amounts in excess of the Insurance Cap or for any
prepaid portion of such insurance that extends beyond the term of this lease.
Tenant shall have the same right to audit and dispute such insurance costs as
is available to Tenant under Section 3.03 of the Amended and Restated Lease,
and for purposes hereof said Section shall be deemed incorporated herein by
reference.
9.10. For so long as Tenant self insures, Tenant shall reimburse
Landlord for Landlord's actual cost in obtaining additional insurance;
provided, that, in no event shall such reimbursement exceed $225,000 per
annum, as such $225,000 threshold may be increased on an annual basis by the
percentage of actual increase in Landlord's actual cost for obtaining
substantially similar coverage but in no event shall any such increase exceed
five percent (5%) in any year. Landlord shall provide Tenant with reasonable
evidence of such coverage and the cost thereof.
ARTICLE 10
Landlord Transfer Restrictions
------------------------------
10.01. Except for Permitted Transfers (which shall be permitted
prior to the second anniversary of the Commencement Date (the "Second
Anniversary") without Tenant's consent), prior to the Second Anniversary
neither the Real Property (nor any portion thereof) nor any interest of
Landlord in this lease shall be sold, assigned, or otherwise transferred,
whether by operation of law or otherwise, nor shall any of the issued or
outstanding capital stock, membership interest, partnership interest or any
equity interest of any Landlord Entity, be (voluntarily or involuntarily)
sold, assigned or
40
transferred, whether by operation of law or otherwise, nor shall there be any
merger or consolidation of any such corporation or other entity into or with
another corporation or other entity (other than another Landlord Entity) nor
shall additional stock or other interests in any Landlord Entity be issued if
the issuance of such additional stock or other interests will result in a
change of the controlling stock or other interest of ownership of such
corporation, nor shall any general partner's interest in a partnership which
is Tenant be (voluntarily or involuntarily) sold, assigned or transferred
(each of the foregoing transactions being herein referred to as a "Transfer").
10.02. For purposes of this Lease:
(a) "Landlord Entity" means (i) the entity which is Landlord
(provided such entity has no significant assets other than the Real Property)
and (ii) any other entity which has no significant assets other than a direct
or indirect interest in Reckson Court Square, LLC as of the date of this
lease.
(b) "Permitted Transfer" means (i) any Transfer of a direct or
indirect interest in any Landlord Entity by will or intestacy, (ii) any
Transfer of a direct or indirect interest in any Landlord Entity listed on a
national securities exchange (as defined in the Securities Exchange Act of
1934, as amended) or traded in the "over the counter" market with quotations
reported by the National Association of Securities Dealers, (iii) (A) any
Transfer of a direct or indirect non-controlling interest (which for purposes
hereof shall mean an interest of not more than 75% and which at the time of
the Transfer does not have day-to-day management of the entity in question,
but may have rights with respect to voting on major decisions of such entity)
in any Landlord Entity (a "Non-Controlling Interest") to an Institutional
Investor (provided, that the foregoing shall not be deemed to prohibit any
subsequent assumption by the Institutional Investor of management rights by
the exercise of rights which are customary in joint ventures with
Institutional Investors) and (B) any Transfer of a Non-Controlling Interest by
one Institutional Investor to another, (iv) any collateral assignment of any
interest in any Landlord Entity as security for a loan, (v) (A) any Transfer
of the Real Property, of any portion thereof or of any interest in any
Landlord Entity, at a foreclosure sale or by transfer or assignment in lieu of
foreclosure, and (B) any Transfer subsequent to a Transfer described in clause
(A), except that for purposes of Article 44 only, such subsequent Transfers
shall only constitute Permitted Transfers through and including the first
Transfer by the foreclosing lender which results in the Real Property being
owned by a party which is not an Affiliate of such lender and which had no
interest in the foreclosed loan, (vi) any Transfer of the Real Property, of
any portion thereof or of any interest in any Landlord Entity to an Affiliate
of Landlord, (vii) any Transfer of ownership interests in any Landlord Entity
among the persons who own interests in such Landlord Entity.
(c) "Institutional Investor" means any one or more of the
following entities (or any department, agency, subsidiary or Affiliate of any
of the
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following entities) whether acting for their own account or in a fiduciary or
representative capacity (including for parties which are not themselves
Institutional Investors): (i) a savings bank, a savings and loan association,
a commercial bank, an investment bank, a trust company, an insurance company,
a commercial credit corporation, a real estate investment trust, a mutual
fund, a government entity, an investment company, a money management firm,
opportunity fund or "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act of 1933, as amended, or an institutional
"accredited investor" within the meaning of Regulation D under the Securities
Act of 1933, as amended, in each case having total assets (in name or under
management) in excess of $500,000,000, (ii) a religious, educational or
eleemosynary institution, a union, federal, governmental, state, municipal or
secular employees' welfare, benefit, pension or retirement fund, in each case
having total assets of at least $500,000,000 or (iii) any other entity engaged
regularly in the business of financing, owning or investing in real estate
and/or leases having total assets (in name or under management) of at least
$500,000,000.
10.03. Any Transfer by Landlord (other than Permitted Transfers)
shall be subject to Tenant's right of first offer set forth in Article 44.
ARTICLE 11
Alterations
-----------
11.01. Except as otherwise specifically provided in this lease,
Tenant shall make no improvements, changes or alterations in or to the
Premises (herein called "Alterations") of any nature without Landlord's prior
written approval, which approval, when required in accordance with the
provisions of this lease, shall be granted or withheld in accordance with the
provisions hereinafter set forth. If Landlord shall fail to respond to
Tenant's written request for approval of any Alterations, which request shall
be accompanied by drawings, plans and specifications in accordance with the
provisions of Section 11.02(a) (herein called an "Initial Alterations
Request"), within ten (10) days after such Initial Alterations Request is made
by Tenant, with Landlord's approval or disapproval with detailed comments
thereon explaining the reasons for such disapproval, then Tenant shall have
the right to give to Landlord a second notice (herein called a "Second
Alterations Request"), and if Landlord shall fail to respond to such Second
Alterations Request within five (5) Business Days after Landlord's receipt
thereof with Landlord's approval or disapproval with detailed comments thereon
explaining the reasons for such disapproval, then such Second Alterations
Request shall be deemed approved by Landlord, provided that such Initial
Alterations Request and Second Alterations Request shall have specifically
referred to this Section 11.01 and specifically stated that Landlord must
respond within such ten (10) day and five (5) Business Day periods or such
Second Alterations Request for approval shall be deemed approved. With respect
to any Alteration which has been approved (or deemed approved) by Landlord,
Landlord shall sign, to the extent required, all applicable applications for
42
building permits together with its approval (or deemed approval) of the
subject Alteration (if such applications were submitted with Tenant's
Alteration request) or, if such applications were not submitted with Tenant's
Alteration request, within two (2) Business Days following Tenant's submission
of such applications.
Notwithstanding anything to the contrary set forth above and provided Tenant
shall be in compliance with the applicable provisions of this Article 11,
Tenant or any permitted subtenant or other permitted occupant of the Premises,
may at its sole expense, without Landlord's prior approval, undertake
Non-Material Alterations. A "Material Alteration" is an Alteration which (1)
materially affects (x) the exterior (including the appearance) of the Building
or (y) the appearance of the areas below the 6th floor of the Building that
would constitute public areas of the Building (i.e., the lobby, plaza and
rotunda) if the Amended and Restated Lease were in effect (herein called
"Deemed Common Areas") or (2) (x) materially adversely affects the mechanical,
electrical, sanitary, heating, ventilating, air-conditioning or other service
systems of the Building except to the extent any of the foregoing would
exclusively serve Tenant's premises in the Building if the Amended and
Restated Lease were in effect (e.g., supplemental air conditioning unit), or
(y) affects the structural integrity of the Building or (z) if following the
Surrender Date or the commencement date of any Extension Term for which Tenant
leases less than the entire Premises, would reduce the useable area of the
Building by more than a de minimis extent (other than rentable area of the
Premises continued to be leased by Tenant). Any Alteration which is not a
Material Alteration is herein called a "Non-Material Alteration". Landlord
agrees not to unreasonably withhold or delay its consent to any Material
Alteration. For purposes hereof, Landlord shall not be deemed to be acting
unreasonably if it withholds consent to a Material Alteration which: (i)
affects the exterior appearance of the Building or the appearance of the
Deemed Common Areas, (ii) would have an a material adverse affect on the
heating, ventilation and air-conditioning, mechanical, electrical, fire and
life safety or plumbing facilities of the Building, or (iii) would have a
material adverse affect on the structural integrity or strength of the
Building, or (iv) would materially reduce the rentable area of the Building as
set forth in clause (2)(y) above. Within the first eighteen (18) months of the
term of this lease, Tenant shall commence and thereafter diligently prosecute
to completion, upgrades to the Building's elevators and escalators estimated
to cost $6,500,000 in the aggregate. Notwithstanding anything to the contrary
contained in this Section 11.01, the aforementioned upgrades shall not
constitute a Material Alteration. Furthermore, Tenant intends (but shall have
no obligation) to make certain Alterations respecting the "hardening" of the
Building, including, (i) installing window film, (ii) reinforcement of the
splice joints in the lobby of the Building, and (iii) installing a catch cable
system (herein collectively called the "Hardening Alterations").
Notwithstanding anything to the contrary contained in this Section 11.01, the
Hardening Alterations shall not constitute Material Alterations; provided,
that, (i) with respect to the window film, same do not have a material
aesthetic impact on the Building, and (ii) if in Landlord's good faith
judgment it finds the catch cable system aesthetically objectionable upon
Tenant's presentation of its proposed design of the catch cable system prior
to installation, Tenant
43
may (v) modify the design to adequately address Landlord's concerns [whereupon
Landlord's approval shall not be unreasonably withheld], and Tenant shall not
be required to remove or further modify same on or prior to the end of the
term of this lease (or in the case Tenant exercises the Surrender Election, on
or prior to the Surrender Date) as the case may be, or (w) Tenant may proceed
with the installation without Landlord's approval, in which case, on or prior
to the end of term of this lease (or in the case Tenant exercises the
Surrender Election, on or prior to the Surrender Date), Tenant shall (but only
if at such time Landlord still finds the catch cable system in its then
current state aesthetically objectionable), at Tenant's option and at its sole
cost and expense (x) remove the catch cable system and repair, restore or
replace the affected windows to the condition existing prior to the
installation of the catch cable system or (y) replace the catch cable system
with an alternative system that is acceptable to Landlord taking into account
the security requirements of Tenant.
11.02. Before proceeding with any Alteration, Tenant shall (i) at
Tenant's expense, file all required architectural, mechanical, electrical and
engineering drawings (which drawings shall be prepared by architects and
engineers validly and currently licensed by New York State, who may be
employees of Tenant) and obtain all permits required by law, if any, and (ii)
submit to Landlord, for Landlord's approval, copies of such drawings, plans
and specifications for the work to be done together with Tenant's estimated
cost thereof (but such submission shall, in the case of Non-Material
Alterations, or in the case of revisions to Non-Material Alterations or to
portions of previously approved Alterations which portions of such Alterations
do not constitute Material Alterations, not be for Landlord's approval but
rather for the purpose of confirming, in Landlord's reasonable judgment, that
the proposed Alteration or revision is, in fact, a Non-Material Alteration or
a revision of the type set forth above in this clause (ii), provided that no
such submission shall be required if the provisions of the next succeeding
sentence are applicable), and Tenant, subject to the deemed approval
provisions set forth in Section 11.01, shall not proceed with such work until
it obtains (but only to the extent same is required hereunder), Landlord's
written approval of such drawings, plans and specifications. Notwithstanding
anything to the contrary contained herein, Tenant shall not be required to
submit plans and/or specifications with respect to Alterations that do not
require a building permit as a matter of Legal Requirements or that are of a
merely decorative nature or of such a minor nature (such as putting up a
partition to divide one office into two work spaces) that it would not be
customary industry practice in Comparable Buildings to prepare plans and/or
specifications for such work. Landlord, at no third-party out-of-pocket cost
to Landlord, will cooperate with Tenant's efforts to obtain the permits
necessary to perform such Alterations, and Tenant shall indemnify and hold
harmless Landlord from and against any claims arising in connection with such
cooperation. Notwithstanding anything to the contrary contained herein,
Landlord's review of any and all drawings, plans and specifications submitted
to Landlord as set forth in Section 11.02 shall be at Landlord's sole cost and
expense.
44
11.03. Tenant, at its expense, shall obtain (and, reasonably
promptly after obtaining same, furnish true and complete copies to Landlord
of) all necessary governmental permits and certificates for the commencement
and prosecution of Alterations, and shall cause Alterations to be performed in
compliance therewith, with all applicable Legal Requirements and with all
applicable requirements of insurance bodies and with plans and specifications
approved by Landlord (to the extent such approval is required hereunder).
Landlord shall, to the extent reasonably necessary, cooperate with Tenant in
connection with such filings, approvals and permits, and shall execute
reasonably promptly (and shall endeavor to do so within two (2) Business Days
after request) any applications as may be required in connection therewith,
provided that Tenant shall reimburse Landlord (as Additional Charges) for the
reasonable out-of-pocket costs and expenses incurred by Landlord in connection
with such cooperation within thirty (30) days after demand therefor,
accompanied by reasonably satisfactory documentation of such costs and
expenses, and further provided that Tenant shall indemnify and hold harmless
Landlord from and against any claims arising in connection with such
cooperation, other than any such claims arising from any incorrect information
provided by Landlord in connection therewith or Landlord's negligence, willful
misconduct or breach of this lease. Throughout the performance of Alterations,
Tenant, at its expense, (or in the case Tenant has exercised the Insurance
Election, Landlord in respect to Landlord's Restoration Obligation), shall
carry, or cause to be carried for any occurrence in or about the Premises, (a)
all risks builders risk insurance written on a completed valued basis (with no
restrictions on occupancy during construction) for the full replacement cost
value of such Alterations, (b) Commercial General Liability including
contractual liability and completed operations coverage with minimum limits of
$1,000,000 per occurrence, (c) workers' compensation for all persons employed
in connection with such Alterations in statutory limits and Employers'
Liability with minimum limits of $1,000,000, (d) Automobile Liability with
minimum limits of $1,000,000 covering any auto owned or operated in connection
with such Alterations, (e) Umbrella or Excess liability with minimum limits of
$25,000,000 and (f) to the extent such Alterations involve any engineering and
design, professional liability (E&O) insurance with a minimum of $1,000,000.
11.04. Landlord agrees that it will not knowingly do or permit
anything to be done in or about the Premises that would violate Tenant's (or
Tenant's contractors) union contracts, or create any work stoppage, picketing,
labor disruption or dispute or disharmony or any interference with the
business of Tenant or any Alterations being performed by Tenant in accordance
with the terms and conditions of this lease. Landlord shall immediately stop
such activity if Tenant notifies Landlord in writing that continuing such
activity would violate Tenant's (or Tenant's contractors) union contracts, or
has caused any work stoppage, picketing, labor disruption or dispute or
disharmony or any interference (beyond a de minimis extent) with the business
of Tenant or any Alterations being performed by Tenant in accordance with the
terms and conditions of this lease.
45
11.05. Tenant, at its expense, and with diligence and dispatch,
shall procure the cancellation or discharge of all notices of violation
arising from or otherwise connected with the performance by or on behalf of
Tenant of Alterations, or any other work, labor, services or materials done
for or supplied to Tenant, or any person claiming through or under Tenant
(other than by Landlord or its employees, agents or contractors), which shall
be issued by the Department of Buildings of the City of New York or any other
public authority having or asserting jurisdiction. Tenant shall defend,
indemnify and save harmless Landlord from and against any and all mechanic's
and other liens and encumbrances filed in connection with Alterations, or any
other work, labor, services or materials done for or supplied to Tenant, or
any person claiming through or under Tenant (other than by Landlord or its
employees, agents or contractors), including, without limitation, security
interests in any materials, fixtures or articles so installed in and
constituting part of the Premises and against all reasonable costs, expenses
and liabilities incurred in connection with any such lien or encumbrance or
any action or proceeding brought thereon. Tenant, at its expense, shall
procure the satisfaction or discharge of record of all such liens and
encumbrances within thirty (30) days after notice of the filing thereof (or
bond or otherwise remove such lien or encumbrance if Tenant is contesting same
in accordance with the terms hereof). Provided that Tenant provides such
bonding during the pendency of any contest, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own expense, any
notice of violation, provided that Tenant shall comply with the provisions of
Section 8.02; provided further, however, that the foregoing provisions of this
sentence shall not obviate the need for such satisfaction or discharge of
record following the resolution of such contest.
11.06. Tenant will promptly upon the completion of an Alteration for
which Tenant is required to submit plans and specifications to Landlord in
accordance with the provisions of Section 11.02, deliver to Landlord
"as-built" drawings or approved shop drawings of any Alterations Tenant has
performed or caused to be performed in the Premises, and (a) if any
Alterations by Tenant are then proposed or in progress, Tenant's drawings and
specifications, if any, for such Alterations and (b) if any Alterations by
Landlord for Tenant were performed or are then proposed or in progress, the
"as-built" drawings or approved shop drawings, if any, or the drawings and
specifications, if any, as the case may be, for such Alterations, in Tenant's
possession. Notwithstanding anything to the contrary contained herein,
wherever this lease requires the submission of "as-built" drawings or approved
shop drawings by Tenant, Tenant may satisfy such obligation by submitting
final marked drawings except with respect to Alterations involving the
sprinkler/life safety systems of the Building.
11.07. Subject to the provisions of Article 43, all fixtures and
equipment (other than any furniture, fixtures and equipment constituting
Tenant's Property) installed or used by Tenant in the Premises shall not be
subject to UCC filings or other recorded liens. Notwithstanding anything to
the contrary contained in this Article 11 or elsewhere in this lease to the
contrary, Tenant shall have the right to obtain financing secured by security
interests in Tenant's furniture, fixtures and equipment constituting Tenant's
46
Property (herein called, "Tenant's Collateral") and the provider of such
financing shall have the right to file UCC financing statements in connection
therewith, provided and on condition that (a) Landlord shall be under no
obligation to preserve or protect Tenant's Collateral, (b) following an event
of default by Tenant hereunder the secured party shall be required to
reimburse Landlord for Landlord's actual out of pocket costs and expense of
storing Tenant's Collateral and repairing any damage to the Premises which
occurs during the removal of Tenant's Collateral, and (c) except in connection
with a Leasehold Mortgage, the description of the secured property in the UCC
financing statements shall specifically exclude Tenant's leasehold estate and
any so-called betterments and improvements to the Premises (in
contradistinction to Tenant's Collateral). Landlord agrees to execute and
deliver a so called "recognition agreement" with the holder of the security
interest in Tenant's Collateral acknowledging the foregoing, provided same is
in form and substance reasonably acceptable to Landlord and, if required, the
holder of any Superior Mortgage. In addition, Landlord agrees to execute and
deliver a document reasonably acceptable to Landlord to protect the position
of the holder of the security interest in Tenant's Collateral, sometimes
referred to as a so called "landlord's waiver," which includes provisions (i)
waiving any rights Landlord may have to Tenant's Collateral by reason of (A)
the manner in which Tenant's Collateral is attached to the Building, or (B)
any statute or rule of law which would, but for this provision, permit
Landlord to distrain or assert a lien or claim any other interest against any
such property by reason of any other provisions of this lease against Tenant's
Collateral for the nonpayment of any rent coming due under this lease, and
(ii) giving the right to the holder of the security interest in Tenant's
Collateral, prior to the expiration of this lease or in the event of the
earlier termination of this lease, prior to the later of the earlier
termination of this lease and fifteen (15) Business Days after Landlord's
notice to the holder of the security interest in Tenant's Collateral of
Landlord's intent to terminate this lease as a result of Tenant's default
hereunder, to remove Tenant's Collateral in the event of a default by Tenant
under any agreement between Tenant and the holder of the security interest in
Tenant's Collateral, provided Tenant shall remain liable to perform, in
accordance with the terms and conditions of this lease, or paying the costs
incurred by Landlord in performing, restoration and repairs to any damage to
the Premises resulting therefrom. Tenant shall reimburse Landlord as
Additional Charges for any and all actual out-of-pocket costs and expenses
incurred by Landlord in connection with Landlord's review of any of the
foregoing documents.
11.08. Tenant shall keep records for six (6) years of Tenant's
Alterations costing in excess of Five Hundred Thousand ($500,000.00) Dollars
and of the cost thereof. Tenant shall, within thirty (30) days after demand by
Landlord, furnish to Landlord copies of such records and cost if Landlord
shall require same in connection with any proceeding to reduce the assessed
valuation of the Real Property, or in connection with any proceeding
instituted pursuant to Article 8.
11.09. Tenant shall have the right, during the term of this lease,
to use all permits, licenses, certificates of occupancy, approvals,
architectural, mechanical,
47
electrical, structural and other plans, studies, drawings, specifications,
surveys, renderings, technical descriptions, warranties, development rights
and other intangible personal property that relate to the Premises.
11.10. Landlord may not make any Alterations to the Real Property,
or any portion thereof, without the prior written consent of Tenant, which
Tenant may grant or withhold in its sole and absolute discretion.
11.11. Any dispute between Landlord and Tenant relating to any
provision of this Article 11 shall be subject to resolution by arbitration in
accordance with the provisions of Article 37.
ARTICLE 12
Landlord's and Tenant's Property
--------------------------------
12.01. (a) Tenant shall have the exclusive right, during the term of
this lease, to use all equipment, machinery, inventory, appliances and other
tangible personal property located in the Premises as of the Commencement Date
and used in connection with the operation of the Premises. All fixtures,
equipment, improvements, ventilation and air-conditioning equipment and
appurtenances attached to or built into the Premises at the commencement of or
during the term of this lease, whether or not by or at the expense of Tenant
(excluding the Building Systems (which are and shall remain the property of
Landlord but which are subject to modification, change and/or replacement by
Tenant in accordance with the terms of this lease) and Tenant's Property
(which is and shall remain the property of Tenant)), shall be and remain a
part of the Premises, shall, upon the expiration or sooner termination of this
lease, be deemed the property of Landlord (without representation or warranty
by Tenant) and shall not be removed by Tenant, except as provided in Section
12.02. Notwithstanding the foregoing provisions, upon notice to Tenant no
later than eighteen (18) months after the Expiration Date, Landlord, subject
to the provisions of the last sentence of this Section 12.01(a), may require
Tenant to reimburse Landlord for the actual and commercially-reasonable
third-party out-of-pocket costs incurred by Landlord that are incremental to
the removal of Specialty Alterations (i.e., and not the demolition costs that
Landlord would have otherwise incurred) if Landlord shall have theretofore
elected to remove any Specialty Alterations made by Tenant and to repair and
restore in a good and workmanlike manner to good condition any damage to the
Premises or the Real Property caused by such removal (other than due to the
negligence of any Landlord Party or Landlord contractor); provided, however,
that if Tenant shall exercise its right pursuant to Article 36 to extend the
term of this lease with respect to less than the entire Premises (herein
called the "Partial Premises") or Tenant shall have exercised the Surrender
Option, then, with respect to any Specialty Alterations located in or serving
the Partial Premises or the Surrender Space, as the case may be, the rights of
Landlord contained in this sentence shall relate to the eighteen (18) month
period following the extended Expiration Date
48
with respect to such Partial Premises, or the eighteen (18) month period
following the Surrender Date with respect to the Surrender Space, as the case
may be, and Landlord shall not remove any such Specialty Alterations prior to
the extended Expiration Date with respect to such Partial Premises or the
Surrender Date with respect to the Surrender Premises, as the case may be. As
used herein, "Specialty Alterations" shall mean (i) slab cuts exceeding six
(6) inches in diameter, excluding up to two (2) interconnecting staircases per
floor (not to exceed a total of twenty (20) interconnecting staircases in the
aggregate) in addition to any interconnecting staircases existing in the core
of the Building, (ii) vertical transportation systems, such as dumbwaiters and
pneumatic conveyers, (iii) vaults, (iv) louvers and any other exterior
penetrations, including, without limitation, rooftop penetrations, (v) any
other Alteration affecting the exterior appearance of the Premises or the
Building, (vi) any Alteration made after the date hereof, which leaves any
Office Floor of the Premises with a supply of electricity less than that
customarily required by tenants leasing space in Comparable Buildings as of
the date hereof (but in no event, shall this provision be construed to permit
Landlord to pass along to Tenant the cost of bringing additional electric
service to the Building), (vii) rooftop installations, but not any wiring,
risers or conduits in connection therewith, and (viii) any Alteration made
after the date hereof, which leaves any Office Floor of the Premises with a
supply of chilled water less than that customarily required by tenants leasing
space in Comparable Buildings as of the date hereof (but in no event, shall
this provision be construed to permit Landlord to pass along to Tenant the
cost of increasing the Building's supply of chilled water), and (ix) any
Alteration which is required to be removed or restored in order for the
Certificate of Occupancy to be modified to permit the Building to be used in
the manner permitted by the Certificate of Occupancy in effect as of the date
hereof; provided, however, that, the term "Specialty Alterations" shall not
include any of the foregoing which are already in place as of the Commencement
Date or any upgrade, modification or replacement thereof. In addition, to the
extent that Landlord actually incurs any other commercially-reasonable
third-party out-of-pocket costs (including without limitation expediter fees)
in effectuating modifications to the Certificate of Occupancy as a result of
Tenant's amendments thereto subsequent to the date hereof, Landlord may
require Tenant to reimburse Landlord for such costs (subject to the same
conditions described in the third sentence of this Section 12.01(a)).
(b) Notwithstanding anything to the contrary contained in this
lease, Landlord and Tenant agree and acknowledge that, until the expiration or
sooner termination of this lease, Tenant, for federal, state and local income
taxes purposes and for all other purposes shall be deemed the owner of all
fixtures, equipment, improvements, ventilation and air conditioning equipment
and appurtenances attached to or built into the Premises by Tenant or any
Affiliate of Tenant as the owner of the Real Property prior to the
Commencement Date (other than the Building Systems) and Tenant may obtain the
benefit of such ownership, if any, allowed or allowable with respect thereto
hereunder, under applicable law and/or the Internal Revenue Code.
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12.02. All movable partitions, furniture systems, special cabinet
work, business and trade fixtures, machinery and equipment, communications
equipment (including, without limitation, telephone systems and security
systems) and office equipment, whether or not attached to or built into the
Premises, which are installed in the Premises by or for the account of Tenant
and can be removed without structural damage to the Building, and all
furniture, furnishings and other articles of movable personal property owned
by Tenant and located in the Premises (herein collectively called "Tenant's
Property") shall be and shall remain the property of Tenant and may be removed
by Tenant at any time during the term of this lease; provided that if any of
Tenant's Property is removed, Tenant shall repair or pay the cost of repairing
any damage to the Premises resulting from the installation and/or removal
thereof.
12.03. At or before the Expiration Date of this lease (or within
sixty (60) days after any earlier termination of this lease, or within sixty
(60) days of the Surrender Date with respect to the Surrender Space) Tenant,
at its expense, shall remove from the Premises (or the Surrender Space, as the
case may be) all of Tenant's furniture, equipment and other moveable personal
property not affixed or attached to the Premises (except for such items
thereof as Landlord shall have expressly permitted to remain, which property
shall become the property of Landlord), and Tenant shall repair any damage to
the Premises resulting from any installation and/or removal of Tenant's
Property; it being understood and agreed that notwithstanding anything to the
contrary contained in this lease, Tenant shall have no obligation to remove
any cabling or wiring installed by, or on behalf of Tenant, in the Premises,
whether before or following the Commencement Date.
12.04. Any other items of Tenant's Property which shall remain in
the Premises after the Expiration Date of this lease, or within sixty (60)
days following an earlier termination date, or within the Surrender Space for
a period of sixty (60) days following the Surrender Date, may at the option of
Landlord, be deemed to have been abandoned, and in such case such items may be
retained by Landlord as its property or disposed of by Landlord, without
accountability, in such manner as Landlord shall reasonably determine, and
Tenant shall reimburse Landlord for Landlord's reasonable, actual,
out-of-pocket expenses in connection therewith, net of any amounts recovered
by Landlord in respect of the disposition of such property, net of any amounts
recovered by Landlord in respect of the disposition of such property.
12.05. The provisions of this Article 12 shall survive the
expiration or other termination of this lease.
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ARTICLE 13
Repairs and Maintenance
-----------------------
13.01. Subject to the provisions of Article 3, Tenant shall, at its
expense, throughout the term of this lease, take good care of and maintain in
good order and condition the Real Property and the fixtures and improvements
therein, including, without limitation, the property which is deemed
Landlord's pursuant to Section 12.01 and Tenant's Property, in accordance with
the First-Class Landlord Standard. Subject to the provisions of Article 3 and
to the extent any obligation of Landlord to repair and restore the Premises
pursuant to Article 19, Tenant shall also be responsible for all repairs,
interior and exterior, structural and non-structural, ordinary and
extraordinary, foreseen or unforeseen, in and to the Real Property and the
facilities and systems thereof, which repairs shall be made in accordance with
the First-Class Landlord Standard.
ARTICLE 14
Electricity
-----------
14.01. Tenant shall contract directly with a utility company for the
provision of electricity for Tenant's use in the Premises and in connection
with installations made by Tenant in the Premises. In connection therewith,
Tenant shall have the right to use all electrical installations, risers,
switches, panels, transformers, meters and other related equipment located in
the Premises. Landlord shall cooperate with Tenant to arrange for the direct
billing of such electricity to Tenant by the utility company.
14.02. To the extent that any floor of the Premises is serviced by
an amount of electricity which exceeds the amount required by the New York
City Building Code or for any other reason that Tenant elects, Tenant shall
have the right to redistribute capacity to other floors of the Premises,
subject to Tenant's obligations pursuant to Section 12.01(a)(vii).
14.03. Any rebates paid to or discounts or other benefits received
by Landlord or Landlord's affiliates from Consolidated Edison (or any other
utility or governmental entity providing such rebates or discounts) as the
result of energy-saving fixtures and equipment installed in the Premises by
Tenant or otherwise relating to the Premises during the term of this lease
shall be paid to Tenant by Landlord promptly after receipt by Landlord
thereof. Landlord shall cooperate with Tenant in connection with applying to
Consolidated Edison (or any other utility or governmental entity providing
such rebates or discounts) for such rebates or discounts, but Landlord shall
incur no cost or expense in connection with such cooperation unless Tenant
agrees to reimburse Landlord for such monies.
51
ARTICLE 15
Services
--------
15.01. Landlord shall not be required to provide any services to
Tenant. Tenant, at its sole cost and expense, shall provide such services as
may be required by Tenant and any persons claiming by, through or under Tenant
in connection with its use and occupancy of the Premises including, without
limitation: (i) heat, ventilation and air conditioning; (ii) elevator service;
(iii) domestic hot and cold water; (iv) cleaning; and (v) electricity. In
connection therewith, Tenant shall have the exclusive right to use all
applicable elevators, loading docks, shafts, risers, HVAC units, ducts,
installations and other equipment located in the Premises.
ARTICLE 16
Access; Signage; Name of Building
---------------------------------
16.01. Landlord and persons authorized by Landlord shall have the
right, upon reasonable advance notice, to enter and/or pass through the
Premises at reasonable times to show the Premises to actual and prospective
Superior Mortgagees or investors, or prospective purchasers of the Premises,
and provided Landlord shall use reasonable efforts to minimize any
interference with Tenant's business operations and shall be accompanied by a
designated representative of Tenant if Tenant shall have made such
representative available. Notwithstanding the foregoing, Landlord acknowledges
that Tenant may, from time to time, have certain security or confidentiality
requirements such that portions of the Premises shall be locked and/or
inaccessible to persons unauthorized by Tenant and such areas will not be made
available to Landlord except in the case of an emergency.
16.02. During the period of fifteen (15) months prior to the
Expiration Date, Landlord and persons authorized by Landlord may exhibit the
Premises to prospective tenants at reasonable times. Landlord shall give
Tenant reasonable prior notice of any entry pursuant to this Section 16.02 and
shall use reasonable efforts to minimize any interference with Tenant's
business operations and use of the Premises and shall be accompanied by a
designated representative of Tenant if Tenant shall have made such
representative available to Landlord. Notwithstanding the foregoing, Landlord
acknowledges that Tenant may, from time to time, have certain security or
confidentiality requirements such that portions of the Premises shall be
locked and/or inaccessible to persons unauthorized by Tenant and such areas
will not be made available to Landlord except in the case of an emergency.
16.03. Tenant shall have access to the Premises on a twenty-four
(24) hour-per-day, seven (7) day-per-week basis.
52
16.04. Throughout the term of this lease, Tenant shall control, and
shall have all rights to, any and all signs, banners, flags, monuments, kiosks
or other means whatsoever of identifying any party, including, without
limitation, any occupant or owner of any portion of the Building placed in, on
or about the Building; provided, that, Tenant shall not change or install any
signage on the exterior of the Building, including the "Citi" signs located on
all or any of the four elevations of the roof-top set back on the 52nd floor
of the Building, to reflect the name of any entity other than a Citibank
Tenant and/or its Affiliates. Landlord shall promptly execute and deliver any
documents as may be required for Tenant to exercise the rights set forth in
this Section 16.04.
16.05. Landlord and Tenant hereby acknowledge that the Building is
currently designated and known as both "One Court Square" and "Citicorp At
Court Square". Landlord hereby agrees that it shall not change the name of the
Building or the designated address of the Building without the prior written
approval of Tenant (which approval may be granted or withheld in Tenant's sole
discretion). Tenant may, without Landlord's consent, change the name of the
Building to reflect the name of any Citibank Tenant and/or its Affiliates.
Notwithstanding anything to the contrary contained herein, Tenant shall have
the right to include in any Extension Election Notice given in accordance with
the provisions of Article 36 an election (herein called the "Naming Rights
Election") to relinquish all of Tenant's rights set forth in this Section
16.05 with respect to the naming of the Building or all or any portion (as
determined by Tenant) of Tenant's rights set forth in Section 16.04 to
exterior signage or both of said naming and signage rights (herein as
applicable called the "Naming Rights") in which event (i) the Naming Rights
shall expire and come to an end on the day immediately preceding the
commencement date of the Extension Term immediately following the giving of
such Extension Election Notice and (ii) the value of the Naming Rights
relinquished shall be taken into account in determining the Market Value Rent
for such Extension Term in accordance with the provisions of Section 36.06. In
the event that Tenant does not exercise the Naming Rights Election, the
applicable provisions of Article 36 hereof shall govern.
ARTICLE 17
Notice of Occurrences
---------------------
17.01. Tenant shall give prompt notice to Landlord of (a) any
occurrence in or about the Premises for which Landlord might be liable, (b)
any fire or other casualty in the Premises for which Landlord is required to
maintain insurance or is otherwise material, and (c) any material damage to or
defect in any part or appurtenance of the Building's sanitary, electrical,
heating, ventilating, air-conditioning, elevator or other systems located in
or passing through the Premises or any part thereof, if and to the extent that
Tenant shall have knowledge of any of the foregoing matters.
53
ARTICLE 18
Non-Liability and Indemnification
---------------------------------
18.01. (a) Neither Landlord (except to the extent expressly set
forth in this lease), any affiliate of Landlord or any Superior Mortgagee, nor
any direct or indirect partner, member, trustee, managing agent, beneficiary,
director, officer, shareholder, principal, agent, servant or employee of
Landlord or of any affiliate of Landlord or any Superior Mortgagee (in any
case whether disclosed or undisclosed) ) (each of the foregoing being
sometimes referred to herein as a "Landlord Party"), shall be liable to Tenant
for any loss, injury or damage to Tenant or to any other person, or to its or
their property, irrespective of the cause of such injury, damage or loss, nor
shall the aforesaid parties be liable for any damage to property of Tenant or
of others entrusted to employees of Landlord, nor for loss of or damage to any
such property by theft or otherwise; provided, however, that subject to the
provisions of Section 9.04 and Section 35.03, nothing contained in this
Section 18.01(a) shall be construed to exculpate Landlord for loss, injury or
damage to the extent caused by or resulting from the negligence of Landlord,
its agents, servants, employees and contractors in accessing the Premises.
Further, no Landlord Party shall be liable, even if negligent, for indirect,
consequential, special, punitive, exemplary, incidental or other like damages
arising out of any loss of use of the Premises or any equipment, facilities or
other Tenant's Property therein by Tenant or any person claiming through or
under Tenant.
(b) Neither Tenant (except to the extent expressly set forth
in this lease), any Affiliate of Tenant, nor any direct or indirect partner,
member, trustee, managing agent, beneficiary, director, officer, shareholder,
principal, agent, servant or employee of Tenant (in any case whether disclosed
or undisclosed) (each of the foregoing being sometimes referred to herein as a
"Tenant Party"), shall be liable to Landlord for any loss, injury or damage to
Landlord or to any other person, or to its or their property, irrespective of
the cause of such injury, damage or loss, nor shall the aforesaid parties be
liable for any damage to property of Landlord or of others entrusted to
employees of Tenant, nor for loss of or damage to any such property by theft
or otherwise; provided, however, that subject to the provisions of Section
9.04, nothing contained in this Section 18.01(b) shall be construed to
exculpate Tenant for loss, injury or damage to the extent caused by or
resulting from the negligence of Tenant, its agents, servants, employees and
contractors in the operation or maintenance of the Premises. Further, no
Tenant Party shall be liable, even if negligent, for indirect, consequential,
special, punitive, exemplary, incidental or other like damages arising out of
any loss of use of Premises or any equipment, facilities or other property of
Landlord by Landlord or any person claiming through or under Landlord
(including, without limitation, damages for lost profits or opportunities, or
the loss by foreclosure, deed in lieu, or otherwise, of all or any portion of
Landlord's interest in the Premises).
54
18.02. Subject to the terms of Section 9.04 relating to waivers of
subrogation (to the extent that such waivers of subrogation shall be
applicable in any case), Tenant shall indemnify and hold harmless each
Landlord Party from and against any and all claims arising from or in
connection with (a) the occupancy, conduct or management of the Real Property
or of any business therein, or any work or thing whatsoever done, or any
condition created (other than by Landlord, its agents, employees or
contractors) in or about the Real Property during the term of this lease; (b)
any act, omission (where there is an affirmative duty to act) or negligence of
Tenant or any of its subtenants or licensees or its or their partners,
directors, principals, shareholders, officers, agents, employees or
contractors; (c) any accident, injury or damage whatever (except to the extent
caused by the negligence or willful misconduct of Landlord or its agents,
employees, or contractors) occurring in, at or upon the Real Property; and (d)
any breach or default by Tenant in the full and prompt payment and performance
of Tenant's obligations under this lease. In case any action or proceeding be
brought against Landlord and/or any Landlord Parties by reason of any such
claim, Tenant, upon notice from Landlord or such Landlord Party, shall resist
and defend such action or proceeding by counsel reasonably satisfactory to
Landlord and such Landlord Party. Provided that Tenant complies with the
requirements of this Section with respect to any third-party claim, Tenant
shall not be liable for the costs of any separate counsel employed by Landlord
or any Landlord Party with respect thereto. If the issuer of any insurance
policy maintained by Tenant and meeting the applicable requirements of this
lease shall assume the defense of any such third-party claim, then Landlord
and such Landlord Party shall permit such insurance carrier to defend the
claim with its counsel and (i) neither Landlord nor any Landlord Party shall
settle such claim without the consent of the insurance carrier (unless such
settlement would relieve Landlord or such Landlord Party of all liability for
which Tenant or its insurance carrier may be liable hereunder and Tenant and
its insurance carrier shall have no liability for such settlement), (ii)
Tenant shall have the right to settle such claim without the consent of
Landlord if Landlord and each Landlord Party and their respective insurance
carriers would be relieved of all liability in connection therewith, (iii)
Landlord and each applicable Landlord Party shall reasonably cooperate, at
Tenant's expense, with the insurance carrier in its defense of any such claim,
and (iv) Tenant shall not be liable for the costs of any separate counsel
employed by Landlord or any Landlord Party. In no event shall Tenant be liable
for indirect, consequential, special, punitive, exemplary, incidental or other
like damages (including, without limitation, damages for lost profits or
opportunities, or the loss by foreclosure, deed in lieu, or otherwise, of all
or any portion of Landlord's interest in the Premises). The provisions of the
preceding four sentences shall apply with full force and effect to any
obligation of Tenant contained in this lease to indemnify Landlord and/or all
Landlord Parties, without respect to whether such indemnification obligation
is set forth in this Article 18 or elsewhere in this lease.
18.03. Notwithstanding anything contained in Section 18.01 to the
contrary and subject to the terms of Section 9.04 relating to waivers of
subrogation (to the extent that such waivers of subrogation shall be
applicable in any case), Landlord shall
55
indemnify and hold harmless each Tenant Party from and against (a) any and all
third-party claims arising from or in connection with any act, omission (where
there is an affirmative duty to act) or negligence of Landlord and its
partners, directors, principals, shareholders, officers, agents, employees or
contractors, and (b) any breach or default by Landlord in the full and prompt
performance of Landlord's obligations under this lease; together with all
reasonable out-of-pocket costs, expenses and liabilities incurred in or in
connection with each such claim or action or proceeding brought thereon,
including, without limitation, all reasonable out-of-pocket attorneys' fees
and expenses. In no event shall Landlord be liable for indirect,
consequential, special, punitive, exemplary, incidental or other like damages
(including, without limitation, damages for lost profits or opportunities, or
the loss by foreclosure, deed in lieu, or otherwise, of all or any portion of
Tenant's interest in the Premises). If any such third-party claim is asserted
against Tenant and/or any Tenant Party, Tenant shall give Landlord prompt
notice thereof and Landlord shall resist and defend such third-party claim
(including any action or proceeding thereon) by counsel reasonably
satisfactory to Tenant. Provided that Landlord complies with the requirements
of this Section with respect to any third-party claim, Landlord shall not be
liable for the costs of any separate counsel employed by Tenant or any Tenant
Party with respect thereto. If the issuer of any insurance policy maintained
by Landlord and meeting the applicable requirements of this lease shall assume
the defense of any such third-party claim, then Tenant shall permit such
insurance carrier to defend the claim with its counsel and (i) neither Tenant
nor any Tenant Party shall settle such claim without the consent of the
insurance carrier (unless such settlement would relieve Tenant or such Tenant
Party of all liability for which Landlord or its insurance carrier may be
liable hereunder and Landlord and its insurance carrier shall have no
liability for such settlement), (ii) Landlord shall have the right to settle
such claim without the consent of Tenant if Tenant, each Tenant Party and
their respective insurance carriers would be relieved of all liability in
connection therewith, (iii) Tenant and each applicable Tenant Party shall
reasonably cooperate, at Landlord's expense, with the insurance carrier in its
defense of any such claim, and (iv) Landlord shall not be liable for the costs
of any separate counsel employed by Tenant or any Tenant Party. The provisions
of this Section 18.03 shall apply with full force and effect to any obligation
of Landlord contained in this lease to indemnify Tenant and/or a Tenant Party,
without respect to whether such indemnification obligation is set forth in
this Article 18 or elsewhere in this lease.
ARTICLE 19
Damage or Destruction
---------------------
19.01. For purposes of this lease, the following terms shall have
the following meanings:
56
(a) the term "Leasehold Improvements" shall mean all
improvements heretofore or hereafter made to portions of the Premises other
than portions of the Premises constituting Base Elements.
(b) the term "Base Elements" shall mean the structure, core
and shell of the Building and the Building's Systems.
(c) the term "Building Systems" shall mean (1) the elevators
and escalators of the Building; (2) the window washing and waste compacting
and removal equipment of the Building; (3) the core toilets and utility
closets of the Building, and all fixtures and equipment installed therein; and
(4) the electrical, HVAC, mechanical, chilled water, condenser water,
plumbing, domestic water, sanitary, sprinkler, fire control, alarm and
prevention, BMS, life safety and security systems and other facilities of the
Building (together with all related equipment), brought to and including, but
not beyond, the point on each floor of the Building at which such systems
connect to horizontal distribution facilities; provided, however that,
notwithstanding anything contained in this clause (4) to the contrary, the
following shall be considered part of the Building Systems: (x) the entire
main distribution loop of the sprinkler system on each floor of the Building
and (y) the entire perimeter HVAC system on each floor of the Building.
19.02. If the Premises shall be partially or totally damaged or
destroyed by fire or other casualty (and if this lease shall not be terminated
as hereinafter provided in this Article 19), then:
(a) Tenant (or in the case, Tenant has exercised the Insurance
Election, Landlord, in which case, the obligations of Landlord under this
Section 19.02 may herein be called "Landlord's Restoration Obligation") shall
promptly settle any insurance claims and repair the damage to and restore and
rebuild the Base Elements (subject to changes thereto necessitated by Legal
Requirements) diligently and in a workmanlike manner (it being understood and
agreed that Tenant's obligations under this Section 19.02 to restore and
rebuild the Base Elements shall not be contingent upon receipt of proceeds or
settlement of any insurance claims nor shall Tenant's restoration obligations
be contingent in any way on any alleged breach of non-performance by Landlord
under the lease or any alleged invalidity of any provision of the lease), and
(b) Tenant shall (i) at Tenant's option, restore all or such
portion of Tenant's Property as Tenant may elect to restore and (ii) at
Tenant's option, to be exercised separately with respect to each floor of the
Premises, either
(A) repair the damage to and restore such portion
of the Leasehold Improvements on such floor as shall, at a minimum,
result in a usable open floor plan, including, without limitation,
ceiling, lighting and floor coverings and any and all Leasehold
Improvements which are required to be installed therein to permit such
floor to be used in compliance with
57
applicable Legal Requirements (herein collectively called the
"Improvements Restoration Work"); or
(B) demolish the Leasehold Improvements located on
such floor (herein called the "Improvements Demolition Work"),
which Improvements Restoration Work or Improvements Demolition Work (as the
case may be) shall be performed diligently and in a workmanlike manner.
The Improvements Restoration Work and the Improvements Demolition Work shall
be deemed to constitute Alterations for the purposes of Article 11. The
proceeds of policies providing coverage for the Base Elements (but only if
Tenant has not exercised the Insurance Election) and Leasehold Improvements
shall be paid to Tenant, to be used by Tenant to restore and rebuild the Base
Elements and perform the Improvements Restoration Work and/or the Improvements
Demolition Work (as the case may be), to the extent Tenant is to perform the
same, and otherwise to be retained by Tenant. If Tenant shall have exercised
the Insurance Election and this lease shall be terminated by Tenant pursuant
to this Article 19, then, Landlord shall pay to Tenant the portions of any
proceeds of Landlord's insurance policies that are attributable to any
Tenant-Funded Residual Cap Ex Amounts.
19.03. If Tenant has not exercised the Insurance Election and all or
part of the Premises shall be damaged or destroyed or rendered completely or
partially untenantable or inaccessible on account of fire or other casualty
there shall be no abatement in Fixed Rent or Additional Charges under Article
3.
19.04. If Tenant has exercised the Insurance Election, then, in the
case of any damage or destruction mentioned in this Article 19 that occurs
during the period that Landlord is required to maintain insurance pursuant to
Section 9.06 and Section 9.07 that results in at least one full floor of the
Premises being rendered untenantable (and such affected portion of the
Premises cannot be made tenantable within sixty (60) days from the date of
such casualty), then effective as of the date of such casualty this lease
shall automatically, without further action or execution by the parties, be
deemed to be restated and amended to reflect all of the terms and conditions
set forth in the form of Restated and Amended Lease as if the Surrender Date
had occurred, and the premises demised to Tenant thereunder shall exclude the
full floor portions of the Premises so rendered untenantable (with appropriate
reductions in the Fixed Rent and Tenant's proportionate share in operating
expenses and real estate taxes). In the event of any damage or destruction
mentioned in this Article 19 that occurs during the period that Landlord is
required to maintain insurance pursuant to Section 9.06 and Section 9.07 that
affects (x) one or more partial Office Floors and/or all or any portion of the
retail and/or storage areas of the Premises in the Lobby and/or Concourse of
the Building and/or all or any portion of the Deemed Common Areas and/or (y)
one or more full Office Floors for which it is determined that same can be
restored and made tenantable in less than the sixty (60) day period referred
to above (irrespective of whether such restoration is
58
completed with said sixty (60) days), then, in any such case, the respective
repair and restoration obligations of Landlord and Tenant with respect thereto
shall be as set forth in the Amended and Restated Lease (irrespective of the
fact that the Amended and Restated Lease is not then in effect) and Tenant
shall be entitled to an abatement in rent with respect thereto in accordance
with the terms of the Amended and Restated Lease (irrespective of the fact
that the Amended and Restated Lease is not then in effect). For purposes of
this Article 19, the term "untenantable" shall mean inaccessible or unusable
for the normal conduct of Tenant's (or any of its subtenant's) business in a
manner which is consistent with Tenant's (or such subtenant's) use prior to
the occurrence of the casualty in question and Tenant ceases the operation of
its business within the Premises (or the portion thereof deemed
"untenantable", as the case may be) other than to the limited extent of
Tenant's security personnel for the preservation of Tenant's property,
Tenant's insurance adjusters, and/or a minimal number of Tenant's employees
for file retrieval, planning of temporary relocation and other disaster
recovery functions (collectively, "Disaster Functions"). In the event that a
portion of any floor of the Premises is rendered untenantable and in Tenant's
good faith judgment Tenant cannot use the tenantable portion of such floor for
the conduct of Tenant's (or any of its subtenant's) business in a manner which
is consistent with Tenant's (or such subtenant's) use prior to the occurrence
of such casualty and Tenant (or such subtenant) ceases the operation of its
business within the entire floor (except for Disaster Functions), such entire
floor shall be deemed to be untenantable. In the event that a portion of the
Premises is rendered untenantable and in Tenant's good faith judgment Tenant
cannot use the tenantable portion of the Premises for the conduct of Tenant's
business in a manner which is consistent with Tenant's use prior to the
occurrence of such casualty and Tenant ceases the operation of its business
within the entire Premises (except for Disaster Functions), the entire
Premises shall be deemed to be untenantable.
19.05. Landlord and Tenant shall cooperate with each other in
connection with the settlement of any insurance claims and the collection of
any insurance proceeds payable in respect of any casualty to the Building
and/or Leasehold Improvements and/or Tenant's Property and in the performance
of their respective restoration obligations, and shall comply with all
reasonable requests made by the other in connection therewith, including,
without limitation, the execution of any affidavits required by the applicable
insurance companies.
19.06. Except to the extent expressly set forth in this Article 19,
Tenant shall not be entitled to terminate this lease and Landlord shall have
no liability to Tenant for inconvenience, loss of business or annoyance
arising from any repair or restoration of any portion of the Premises pursuant
to this Article 19.
19.07. Except to the extent Tenant has exercised the Insurance
Election, Landlord will not be obligated to carry insurance of any kind on the
Base Elements, Tenant's Property or on Tenant's Leasehold Improvements and
shall not be obligated to
59
repair any damage to or replace any of the foregoing and, Tenant agrees to
look solely to its insurance for recovery of any damage to or loss of any of
the foregoing.
19.08. The provisions of this Article 19 shall be deemed an express
agreement governing any case of damage or destruction of the Premises by fire
or other casualty, and Section 227 of the Real Property Law of the State of
New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
ARTICLE 20
Eminent Domain
--------------
20.01. If the whole of the Building or the Premises shall be taken
by condemnation or in any other manner for any public or quasi-public use or
purpose, this lease and the term and estate hereby granted shall terminate as
of the date of vesting of title on such taking (herein called the "Date of the
Taking"), and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of such date.
20.02. If twenty-five (25%) percent or more of the Premises shall be
so taken and the remaining area of the Premises shall not be sufficient, in
Tenant's reasonable judgment, for Tenant to continue the normal operation of
its business, or if permanent access to the Premises or Building shall be
taken, Tenant may terminate this lease by giving Landlord notice to that
effect within ninety (90) days after the Date of the Taking. This lease shall
terminate on the date set forth in such notice from Tenant to Landlord, which
date shall be no more than ninety (90) days after the date such notice is
given, and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of such termination date, except that with respect to any portion
of the Premises which is the subject of the taking, if earlier, as of the Date
of the Taking. Upon such partial taking and this lease continuing in force as
to any part of the Premises, the Fixed Rent and Additional Charges shall be
adjusted according to the rentable area remaining.
20.03. Landlord shall be entitled to receive the entire award or
payment in connection with any taking without deduction therefrom for any
estate vested in Tenant by this lease and Tenant shall receive no part of such
award except as hereinafter expressly provided in this Article 20. Tenant
hereby expressly assigns to Landlord all of its right, title and interest in
and to every such award or payment; provided, however, that Tenant shall have
the right to make a claim for the value of Tenant's moving expenses, and for
any of Tenant's Property and any of Tenant's furniture, fixtures and equipment
taken and, if the provisions of Section 20.05 apply, for the cost of Tenant's
restoration obligations thereunder.
60
20.04. (a) If the temporary use or occupancy of all or any part of
the Premises shall be taken by condemnation or in any other manner for any
public or quasi-public use or purpose during the term of this lease, Tenant
shall be entitled to receive the entire award or payment for such taking.
Unless this lease shall be terminated as provided in Section 20.04(b) or
Section 20.04(c), this lease shall be and remain unaffected by such taking and
Tenant shall continue to be responsible for all of its obligations hereunder
insofar as such obligations are not affected by such taking and shall continue
to pay in full the Fixed Rent and Additional Charges when due. If the period
of temporary use or occupancy shall extend beyond the Expiration Date of this
lease, that part of the award which represents compensation for the use and
occupancy of the Premises (or a part thereof) shall be divided between
Landlord and Tenant so that Tenant shall receive so much thereof as represents
the period up to and including such Expiration Date and Landlord shall receive
so much thereof as represents the period after such Expiration Date. All
monies paid as, or as part of, an award for temporary use and occupancy for a
period beyond the date to which the Fixed Rent and Additional Charges have
been paid shall be received, held and applied by Landlord as a trust fund for
payment of the Fixed Rent and Additional Charges becoming due hereunder.
(b) If the period of any taking of the temporary use and
occupancy of fifty percent (50%) or more of the rentable area of any Office
Floor or fifty percent (50%) or more of the rentable area of the entire
Premises (a "Temporary Taking Period") shall exceed twelve (12) months, Tenant
may terminate this lease with respect to (x) the portion of such Office Floor
or the portion of the entire Premises so taken, (y) the entirety of any such
Office Floor or (z) the entirety of the Premises, as the case may be. In the
event that Tenant becomes entitled to terminate this lease in whole or in part
pursuant to the preceding sentence, Tenant may do so by giving a notice to
such effect to Landlord at any time following the date on which Tenant becomes
so entitled but prior to the date on which the Temporary Taking Period ends,
and unless the Temporary Taking Period shall end prior to the expiration of
thirty (30) days from Tenant's giving of such notice, this lease and the term
and estate hereby granted (with respect to the entire Premises or the portion
thereof designated in Tenant's notice) shall terminate as of such thirtieth
(30th) day with the same force and effect as if such date were the Expiration
Date specified herein with respect to the entire Premises or such portion
thereof.
(c) In the event that it shall be determined or the parties
shall receive notice that the Temporary Taking Period with respect to fifty
percent (50%) or more of the rentable area of any Office Floor or fifty
percent (50%) or more of the rentable area of the entire Premises is expected
to exceed the shorter of (x) eighteen (18) months and (y) the remainder of the
term of this lease (as the same may have theretofore been extended in
accordance with Article 36), Tenant shall have the right, within sixty (60)
days after the date of such determination or notice, as applicable, to
terminate this lease with respect to (i) the portion of such Office Floor or
the portion of the entire Premises so taken, (ii) the entirety of any such
Office Floor or (iii) the entirety of the Premises, as the case may be, and on
the date set forth in such notice, which shall not in
61
any event be more than ninety (90) days after the giving of such notice, this
lease will terminate (with respect to the entire Premises or the portion
thereof designated in Tenant's notice) as if such date were the Expiration
Date specified herein with respect to the entire Premises or such portion
thereof.
20.05. In the event of a taking of less than the whole of the
Building and/or the Land which does not result in termination of this lease,
or in the event of a taking for a temporary use or occupancy of all or any
part of the Premises which does not result in a termination of this lease, (a)
Tenant, at its expense, and whether or not any award or awards shall be
sufficient for the purpose, shall proceed with reasonable diligence to repair
the remaining parts of the Building and the Premises to substantially their
former condition to the extent that the same may be feasible (subject to
reasonable changes which Tenant shall deem desirable) and so as to constitute
a complete and rentable Building and (b) Tenant, at its expense, shall proceed
with reasonable diligence (i) at Tenant's option, to repair all or such
portions of Tenant's Property as Tenant may elect to repair and (ii) at
Tenant's option, to be exercised separately with respect to each floor of the
Premises, either:
(A) repair the remaining parts of the Leasehold
Improvements on such floor as shall, at a minimum, result in a usable
open floor plan, including, without limitation, ceiling, lighting and
floor coverings and any and all parts of the Leasehold Improvements which
are required to be installed therein to permit such floor to be used in
compliance with applicable Legal Requirements; or
(B) demolish the Leasehold Improvements located on
such floor.
Notwithstanding anything to the contrary contained herein, in the
event of any taking pursuant to this Section 20.3, the entire award received
by Landlord pursuant to Section 20.3 shall be held in trust by Landlord for
the benefit of Tenant and paid to Tenant for application to the cost of
restoration of the Base Elements in accordance with this Section 20.5 and
subject to the provisions of Section 20.3, the balance of such award, if any
remaining after such application, shall belong to Landlord.
20.06. The provisions of Section 35.04 regarding Force Majeure
Causes shall have no applicability to the provisions of this Article 20, and
in no event will any of the time periods set forth in this Article 20 be
extended as the result of Force Majeure Causes.
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ARTICLE 21
Surrender
---------
21.01. On the Expiration Date or upon any earlier termination of
this lease, or upon any reentry by Landlord upon the Premises, Tenant shall
quit and surrender the Premises to Landlord "broom-clean" and in good order,
condition and repair, except for ordinary wear and tear and such damage or
destruction as Landlord is required to repair or restore under this lease,
free and clear of all lettings, occupancies, liens and encumbrances caused or
created by Tenant or any person claiming through or under Tenant, other than
those agreements of record (the "Recorded Agreements") which Landlord took
subject to at the time of its acquisition of the Real Property (as same are
expressly set forth in Schedule 3.1(b) to the Purchase and Sale Agreement
dated as of May 4, 2005 between Tenant, as seller, and Landlord, as purchaser)
or permitted under Article 33, or otherwise consented to by Landlord and
Tenant shall remove all of the Tenant's Property therefrom except as otherwise
expressly provided in this lease. The provisions of this Section 21.01 shall
survive the expiration or earlier termination of this lease.
21.02. On or promptly following the Expiration Date or any earlier
termination of this lease, or any reentry by Landlord upon the Premises,
Tenant shall also deliver to Landlord all keys, cardkeys and lock combinations
for the Premises, originals or copies of all operating manuals, operating
records and maintenance records and logs relating to the Premises, and
originals or copies of all permits, licenses, certificates of occupancy,
approvals, architectural, mechanical, electrical, structural and other plans,
studies, drawings, specifications, surveys, renderings and technical
descriptions that relate to the ownership and use of the Premises, to the
extent the same are in Tenant's possession and to the extent (but only to the
extent) the same are transferable and do not contain any proprietary or
confidential information. The provisions of this Section 21.02 shall survive
the expiration or earlier termination of this lease.
21.03. No act or thing done by Landlord or its agents shall be
deemed an acceptance of a surrender of the Premises, and no agreement to
accept such surrender shall be valid unless in writing and signed by Landlord
and consented to by each Superior Mortgagee whose lease or mortgage, as the
case may be, provides that no such surrender may be accepted without its
consent.
ARTICLE 22
Conditions of Limitation
------------------------
22.01. This lease and the term and estate hereby granted are subject
to the limitation that whenever Tenant shall make an assignment for the
benefit of creditors, or shall file a voluntary petition under any bankruptcy
or insolvency law, or an involuntary
63
petition alleging an act of bankruptcy or insolvency shall be filed against
Tenant under any bankruptcy or insolvency law, or whenever a petition shall be
filed by or against Tenant under the reorganization provisions of the United
States Bankruptcy Code (herein called the "Bankruptcy Code") or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant under the arrangement provisions of the Bankruptcy Code or under the
provisions of any law of like import, or whenever a permanent receiver of
Tenant or of or for the property of Tenant shall be appointed, then Landlord
(a) if such event occurs without the acquiescence of Tenant at any time after
the event continues for one hundred eighty (180) days, or (b) in any other
case at any time after such event continues for sixty (60) days after written
notice thereof has been given by Landlord to Tenant and any Leasehold
Mortgagee whose name and address has been delivered to Landlord, may give
Tenant and any such Leasehold Mortgagee a notice of intention to end the term
of this lease at the expiration of ten (10) days from the date of service of
such notice of intention to Tenant and such Leasehold Mortgagee, and upon the
expiration of said ten (10) day period this lease and the term and estate
hereby granted, whether or not the term shall theretofore have commenced,
shall terminate with the same effect as if that day were the expiration date
of this lease, but Tenant shall remain liable for damages as provided in
Article 24.
22.02. This lease and the term and estate hereby granted are subject
to the further limitations that:
(a) if Tenant shall default in the payment of any Fixed Rent
or Additional Charges and such failure continues for (i) thirty (30) days
after written notice thereof has been given to Tenant and any Leasehold
Mortgagee whose name and address has been delivered to Landlord and (ii) an
additional thirty (30) days after written notice of such continued failure has
been given to Tenant and any such Leasehold Mortgagee, or
(b) if Tenant shall, whether by action or inaction, be in
default of any of its obligations under this lease (other than a default in
the payment of Fixed Rent or Additional Charges) and (i) such default shall
continue and not be remedied within thirty (30) days after Landlord shall have
given to Tenant and any Leasehold Mortgagee whose name and address has been
delivered to Landlord a written notice specifying the same, and (ii) such
default shall thereafter continue and not be remedied within an additional
thirty (30) days after Landlord shall have given to Tenant and any such
Leasehold Mortgagee an additional written notice specifying the same, or, in
the case of a default which cannot with due diligence be cured prior to the
expiration of such additional thirty (30) day period, if Tenant, or such
Leasehold Mortgagee shall not (A) prior to the expiration of such additional
thirty (30) day period advise Landlord of its intention to take all steps
reasonably necessary to remedy such default, (B) duly commence prior to the
expiration of such additional thirty (30) day period, and thereafter
diligently prosecute to completion, all steps reasonably necessary to remedy
the default and (C) complete such remedy within a reasonable time after the
date of said notice (or additional notice, as the case may be) of Landlord, or
64
(c) if any event shall occur or any contingency shall arise
whereby this lease or the estate hereby granted or the unexpired balance of
the term hereof would, by operation of law or otherwise, devolve upon or pass
to any person, firm or corporation other than Tenant, except as expressly
permitted by Article 7 or Article 43 and (i) such event or contingency shall
not be rescinded without adverse consequences, cost or liability to Landlord
within thirty (30) days after written notice thereof has been given by
Landlord to Tenant and any Leasehold Mortgagee whose name and address has been
delivered to Landlord and (ii) such event or contingency shall thereafter
continue not to be rescinded without adverse consequences, cost or liability
to Landlord within thirty (30) days after a second written notice thereof has
been given by Landlord to Tenant and any such Leasehold Mortgagee,
then in any of said cases Landlord may give to Tenant and any such Leasehold
Mortgagee a notice of intention to end the term of this lease at the
expiration of ten (10) days from the date of the service of such notice of
intention, and upon the expiration of said ten (10) days this lease and the
term and estate hereby granted, whether or not the term shall theretofore have
commenced, shall terminate with the same effect as if that day was the day
herein definitely fixed for the end and expiration of this lease, but Tenant
shall remain liable for damages as provided in Article 24. All notices given
to Tenant and any such Leasehold Mortgagee under this Section 22.02 shall
contain a statement in at least 12-point bold type and capital letters stating
"THIS IS A DEFAULT NOTICE" as a condition to the effectiveness thereof.
22.03. (a) If Tenant shall have assigned its interest in this lease,
and this lease shall thereafter be disaffirmed or rejected in any proceeding
under the Bankruptcy Code or under the provisions of any Federal, state or
foreign law of like import, or in the event of termination of this lease by
reason of any such proceeding, the assignor or any of its predecessors in
interest under this lease, upon request of Landlord given within ninety (90)
days after such disaffirmance or rejection shall (a) pay to Landlord all Fixed
Rent and Additional Charges then due and payable to Landlord under this lease
to and including the date of such disaffirmance or rejection and (b) enter
into a new lease as lessee with Landlord of the Premises for a term commencing
on the effective date of such disaffirmance or rejection and ending on the
Expiration Date, unless sooner terminated as in such lease provided, at the
same Fixed Rent and Additional Charges and upon the then executory terms,
covenants and conditions as are contained in this lease, except that (i) the
rights of the lessee under the new lease, shall be subject to any possessory
rights of the assignee in question under this lease and any rights of persons
claiming through or under such assignee, (ii) such new lease shall require all
defaults existing under this lease to be cured by the lessee with reasonable
diligence, and (iii) such new lease shall require the lessee to pay all
Additional Charges which, had this lease not been disaffirmed or rejected,
would have become due after the effective date of such disaffirmance or
rejection with respect to any prior period. If the lessee shall fail or refuse
to enter into the new lease within ten (10) days after Landlord's request to
do so, then in addition to all other rights and remedies by reason of such
default, under this
65
lease, at law or in equity, Landlord shall have the same rights and remedies
against the lessee as if the lessee had entered into such new lease and such
new lease had thereafter been terminated at the beginning of its term by
reason of the default of the lessee thereunder.
(b) If pursuant to the Bankruptcy Code Tenant is permitted to
assign this lease in disregard of the restrictions contained in Article 7 (or
if this lease shall be assumed by a trustee), the trustee or assignee shall
cure any default under this lease and shall provide adequate assurance of
future performance by the trustee or assignee including (i) of the source of
payment of rent and performance of other obligations under this lease and (ii)
that the use of the Premises shall in no way diminish the reputation of the
Building as a first-class office building or impose any additional burden upon
the Building or increase the services to be provided by Landlord. If all
defaults are not cured and such adequate assurance is not provided within
sixty (60) days after there has been an order for relief under the Bankruptcy
Code, then this lease shall be deemed rejected, Tenant or any other person in
possession shall vacate the Premises, and Landlord shall be entitled to retain
any rent or security deposit previously received from Tenant and shall have no
further liability to Tenant or any person claiming through Tenant or any
trustee. If Tenant's trustee, Tenant or Tenant as debtor-in-possession assumes
this lease and proposes to assign the same (pursuant to Title 11 U.S.C.
Section 365, as the same may be amended) to any person, including, without
limitation, any individual, partnership or corporate entity, who shall have
made a bona fide offer to accept an assignment of this lease on terms
acceptable to the trustee, Tenant or Tenant as debtor-in-possession, then
notice of such proposed assignment, setting forth (1) the name and address of
such person, (2) all of the terms and conditions of such offer, and (3) the
adequate assurance to be provided Landlord to assure such person's future
performance under this lease, including, without limitation, the assurances
referred to in Title 11 U.S.C. Section 365(b)(3) (as the same may be amended),
shall be given to Landlord by the trustee, Tenant or Tenant as
debtor-in-possession no later than twenty (20) days after receipt by the
trustee, Tenant or Tenant as debtor-in-possession of such offer, but in any
event no later than ten (10) days prior to the date that the trustee, Tenant
or Tenant as debtor-in-possession shall make application to a court of
competent jurisdiction for authority and approval to enter into such
assignment and assumption, and Landlord shall thereupon have the prior right
and option, to be exercised by notice to the trustee, Tenant or Tenant as
debtor-in-possession, given at any time prior to the effective date of such
proposed assignment, to accept an assignment of this lease upon the same terms
and conditions and for the same consideration, if any, as the bona fide offer
made by such person, less any brokerage commissions which may be payable out
of the consideration to be paid by such person for the assignment of this
lease.
66
ARTICLE 23
Reentry by Landlord
-------------------
23.01. If this lease shall terminate as provided in Article 22,
Landlord or Landlord's agents and employees may immediately or at any time
thereafter reenter the Premises, or any part thereof, either by summary
dispossess proceedings or by any suitable action or proceeding at law, or
otherwise as permitted by law (but in no event by forcible entry), without
being liable to indictment, prosecution or damages therefor (except to the
extent resulting from Landlord's negligence or willful misconduct), and may
repossess the same, and may remove any person therefrom, to the end that
Landlord may have, hold and enjoy the Premises. The word "reenter," as used
herein, is not restricted to its technical legal meaning. If this lease is
terminated under the provisions of Article 22, or if Landlord shall reenter
the Premises under the provisions of this Article, or in the event of the
termination of this lease, or of reentry, by or under any summary dispossess
or other proceeding or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the
Fixed Rent and any and all Additional Charges payable up to the time of such
termination of this lease (including without limitation any such Additional
Charges payable pursuant to Section 24.05 and Article 27), or of such recovery
of possession of the Premises by Landlord, as the case may be, and shall also
pay to Landlord damages as provided in Article 24.
23.02. In the event of a breach or threatened breach by Tenant of
any of its obligations under this lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any
remedy allowed at law or in equity as if specific remedies were not provided
for herein. In the event of a breach or threatened breach by Landlord of any
of its obligations under this lease, Tenant shall have the right of injunction
in addition to any other remedy which may be available to Tenant hereunder,
allowed at law or in equity. The remedies to which Tenant may resort hereunder
are cumulative and are not intended to be exclusive of any other remedies to
which Tenant may lawfully be entitled at any time and Tenant may invoke any
remedy allowed at law or in equity as if specific remedies were not provided
for herein.
23.03. If this lease shall terminate under the provisions of Article
22, or if Landlord shall reenter the Premises under the provisions of this
Article 23, or in the event of the termination of this lease, or of reentry,
by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all monies, if any, paid by Tenant to
Landlord, whether as advance rent, security or otherwise, but such monies
shall be credited by Landlord against any Fixed Rent or Additional Charges due
from Tenant at the time of such termination or reentry or, at Landlord's
option, against any damages
67
payable by Tenant under Article 24 or pursuant to law, with the balance, if
any, to be promptly refunded to Tenant.
ARTICLE 24
Damages
-------
24.01. If this lease is terminated under the provisions of Article
22, or if Landlord shall reenter the Premises under the provisions of Article
23, or in the event of the termination of this lease, or of reentry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this lease
or at the time of any such reentry by Landlord, as the case may be, represents
the then value of the excess, if any (assuming a discount at a rate per annum
equal to the interest rate then applicable to United States Treasury Bonds
having a term which most closely approximates the period commencing on the
date that this lease is so terminated, or the date on which Landlord re-enters
the Premises, as the case may be, and ending on the date on which this lease
was scheduled to expire but for such termination or reentry), of (i) the
aggregate amount of the Fixed Rent and the Net Taxes Additional Charges which
would have been payable by Tenant (conclusively presuming the average monthly
Net Taxes Additional Charges to be the same as were payable for the last
twelve (12) calendar months, or if less than twelve (12) calendar months have
then elapsed since the Commencement Date, all of the calendar months
immediately preceding such termination or reentry) for the period commencing
with such earlier termination of this lease or the date of any such reentry,
as the case may be, and ending with the date contemplated as the expiration
date hereof if this lease had not so terminated or if Landlord had not so
reentered the Premises, over (ii) the aggregate fair market rental value of
the Premises for the same period, or
(b) sums equal to the Fixed Rent and the Net Taxes Additional
Charges which would have been payable by Tenant had this lease not so
terminated, or had Landlord not so reentered the Premises, payable upon the
due dates therefor specified herein following such termination or such reentry
and until the date contemplated as the expiration date hereof if this lease
had not so terminated or if Landlord had not so reentered the Premises;
provided, however, that if Landlord shall relet the Premises during said
period, or receive any other income or consideration in connection with the
use or occupancy of the Premises or otherwise deriving therefrom (including
without limitation through the receipt of insurance or condemnation proceeds),
Landlord shall credit Tenant with the net rents received by Landlord from such
reletting (or the net amounts of such other income or consideration), such net
rents and other amounts to be determined by first deducting from the gross
rents from such reletting (or the gross amounts of such other income or
consideration) as and when received by Landlord the
68
reasonable and actual expenses incurred or paid by Landlord in terminating
this lease or in reentering the Premises and in securing possession thereof,
as well as the reasonable and actual expenses of reletting (including, without
limitation, altering and preparing the Premises for new tenants, brokers'
commissions, reasonable legal fees, and all other customary and reasonable
expenses properly chargeable against the Premises and the rental therefrom) or
of realizing such other income or consideration, it being understood that any
such reletting may be for a period shorter or longer than the remaining term
of this lease; but in no event shall Tenant be entitled to receive any excess
of such net rents or other amounts over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the collection of
damages pursuant to this subdivision to a credit in respect of any net rents
from a reletting or any net amounts of such other income or consideration,
except to the extent that such net rents or other amounts are actually
received by Landlord. If the Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square foot basis
shall be made of the rent received from such reletting and of the expenses of
reletting.
If the Premises or any part thereof be relet by Landlord for the unexpired
portion of the term of this lease, or any part thereof, before presentation of
proof of such damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value for the Premises, or part thereof, so relet during the term of
the reletting, provided that such reletting shall constitute a bona-fide
arm's-length third party transaction. Notwithstanding anything to the contrary
contained in this lease, Landlord shall use reasonable efforts to relet the
Premises, either in the name of Landlord or otherwise, to such tenant or
tenants, for such term or terms ending before, on or after the Expiration
Date, at such rental or rentals and upon such other conditions (that may
include concessions and free rent periods) as Landlord may reasonably
determine, provided, however, that Landlord shall not be liable in any way
whatsoever for its failure to relet the Premises or any part thereof, or if
the Premises or any part thereof are relet, for its failure to collect the
rent under such reletting, and no such failure to relet or failure to collect
rent shall release or affect Tenant's liability for damages or otherwise under
this lease.
If Landlord or any Affiliate of Landlord shall use or occupy the Premises or
any portion thereof following the termination of this lease under the
provisions of Article 22, the damages payable by Tenant pursuant to paragraph
(b) above shall be reduced by the fair market rental value of the Premises or
such portion thereof that is so occupied by Landlord or its Affiliate (or by
the excess, if any, of such fair market rental value over the amounts, if any,
actually paid by Landlord or such Affiliate in connection with such use or
occupancy).
Notwithstanding anything to the contrary contained herein, Landlord shall not
commence any action for, nor require Tenant to pay damages calculated in
accordance with the provisions of paragraph (a) above prior to the date upon
which any rights of any
69
Leasehold Mortgagee pursuant to Article 43 (if applicable) to cure Tenant's
default and to request and receive a new lease have expired.
24.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this lease would have expired if
it had not been so terminated under the provisions of Article 22, or had
Landlord not reentered the Premises. Nothing herein contained shall be
construed to limit or preclude recovery by Landlord against Tenant of any sums
or damages to which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder on the
part of Tenant. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as damages by reason
of the termination of this lease or reentry on the Premises for the default of
Tenant under this lease an amount equal to the maximum allowed by any statute
or rule of law in effect at the time when, and governing the proceedings in
which, such damages are to be proved whether or not such amount be greater
than any of the sums referred to in Section 24.01. Notwithstanding any
provisions of this lease to the contrary, Landlord shall not be liable to
Tenant, and Tenant shall not be liable to Landlord, for indirect,
consequential, special, punitive, exemplary, incidental or other like damages
(including, without limitation, damages to Landlord for lost profits or
opportunities, or the loss by foreclosure, deed in lieu, or otherwise, of all
or any portion of Landlord's interest in the Premises), even if arising from
any act, omission or negligence of such party or from the breach by such party
of its obligations under this lease.
24.03. Intentionally Omitted.
24.04. In addition, if this lease is terminated under the provisions
of Article 22, or if Landlord shall reenter the Premises under the provisions
of Article 23, Tenant agrees that:
(a) the Premises then shall be in the condition in which
Tenant has agreed to surrender the same to Landlord at the expiration of the
term hereof;
(b) Tenant shall have performed prior to any such termination
any covenant of Tenant contained in this lease for the making of any
Alterations or for restoring or rebuilding the Premises or any part thereof;
and
(c) for the breach of any covenant of Tenant set forth above
in this Section 24.04, Landlord shall be entitled immediately, without notice
or other action by Landlord, to recover, and Tenant shall pay, as and for
liquidated damages therefor, the cost of performing such covenant (as
estimated by a reputable independent contractor selected by Landlord).
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24.05. In addition to any other remedies Landlord may have under
this lease, and without reducing or adversely affecting any of Landlord's
rights and remedies under Article 22, if any installment of Fixed Rent or of
any Additional Charges payable hereunder by Tenant to Landlord is not paid
within five (5) Business Days after the due date thereof, the same shall bear
interest at the Interest Rate from the due date thereof until paid, and the
amount of such interest shall be an Additional Charge hereunder. For the
purposes of this Section 24.04, a rent bill sent by first class mail, to the
address to which notices are to be given under this lease, shall be deemed a
proper demand for the payment of the amounts set forth therein. To the extent
that Tenant is required under this lease to make any payments directly to
third parties on behalf of Landlord, Tenant shall be responsible for any late
charges or interest imposed by such third parties in the event that Tenant
does not make such payments in a timely manner.
ARTICLE 25
Affirmative Waivers
-------------------
25.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and
privilege which it, they or any of them might have under or by reason of any
present or future law, to redeem the Premises or to have a continuance of this
lease after being dispossessed or ejected therefrom by process of law or under
the terms of this lease or after the termination of this lease as provided in
this lease.
25.02. If Tenant shall be in default, after the expiration of any
applicable notice and grace periods, in the payment of Fixed Rent or
Additional Charges, Tenant waives Tenant's right, if any, to designate the
items to which any payments made by Tenant are to be credited, and Tenant
agrees that Landlord may apply any payments made by Tenant to such items as
Landlord sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items which any such payments shall be credited.
25.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises, including, without limitation, any claim of injury or damage, and
any emergency and other statutory remedy with respect thereto.
25.04. Tenant shall not interpose any counterclaim of any kind in
any action or proceeding commenced by Landlord to recover possession of the
Premises (other than compulsory counterclaims), provided that nothing herein
shall be deemed to preclude Tenant from bringing a separate action for any
claim that Tenant may have hereunder.
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ARTICLE 26
No Waivers
----------
26.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this lease, or to exercise any election herein contained, shall not be
construed as a waiver or relinquishment for the future of the performance of
such one or more obligations of this lease or of the right to exercise such
election, and such right to insist upon strict performance shall continue and
remain in full force and effect with respect to any subsequent breach, act or
omission. The receipt by Landlord or tender by Tenant of Fixed Rent or partial
payments thereof or Additional Charges or partial payments thereof with
knowledge of breach by Tenant or Landlord, as the case may be, of any
obligation of this lease shall not be deemed a waiver of such breach.
26.02. If there be any agreement between Landlord and Tenant
providing for the cancellation of this lease upon certain provisions or
contingencies and/or an agreement for the renewal hereof at the expiration of
the term, the right to such renewal or the execution of a renewal agreement
between Landlord and Tenant prior to the expiration of the term shall not be
considered an extension thereof or a vested right in Tenant to such further
term so as to prevent Landlord from canceling this lease and any such
extension thereof during the remainder of the original term; such privilege,
if and when so exercised by Landlord, shall cancel and terminate this lease
and any such renewal or extension; any right herein contained on the part of
Landlord to cancel this lease shall continue during any extension or renewal
hereof; any option on the part of Tenant herein contained for an extension or
renewal hereof shall not be deemed to give Tenant any option for a further
extension beyond the first renewal or extended term, unless such additional
options are expressly provided for herein.
ARTICLE 27
Curing Tenant's Defaults
------------------------
27.01. If Tenant shall default in the performance of any of Tenant's
obligations under this lease and such default continues after written notice
and the expiration of the applicable grace period, if any, Landlord or any
Superior Mortgagee without thereby waiving such default, may (but shall not be
obligated to) perform the same for the account and at the expense of Tenant
(provided such expense is commercially reasonable). If Landlord effects such
cure by bonding any lien which Tenant is required to bond, Tenant shall obtain
and substitute a bond for Landlord's bond at its sole cost and expense and
reimburse Landlord for the commercially reasonable cost of Landlord's bond.
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27.02. Bills for any reasonable actual out-of-pocket expenses
incurred by Landlord in connection with any such performance by it for the
account of Tenant, and bills for all reasonable actual out-of-pocket costs,
expenses and disbursements of every kind and nature whatsoever, including
reasonable counsel fees, involved in collecting or endeavoring to collect the
Fixed Rent or Additional Charges or any part thereof or enforcing or
endeavoring to enforce any rights against Tenant or Tenant's obligations
hereunder, under or in connection with this lease or pursuant to law,
including any such cost, expense and disbursement involved in instituting and
prosecuting summary proceedings or in recovering possession of the Premises
after default by Tenant or upon the expiration or sooner termination of this
lease, and interest on all sums advanced by Landlord under this Section 27.02
and/or Section 27.01 (at the Interest Rate or the maximum rate permitted by
law, whichever is less) may be sent by Landlord to Tenant monthly, or
immediately, at its option, and such amounts shall be due and payable (as
Additional Charges) in accordance with the terms of such bills, but not sooner
than thirty (30) days after the rendering of such bills, together with
reasonable documentation with respect to such expenses. Notwithstanding
anything to the contrary contained in this Section, Tenant shall have no
obligation to pay the costs, expenses or disbursements of Landlord in any
proceeding in which there shall have been rendered a final judgment against
Landlord, and the time for appealing such final judgment shall have expired
(the "Appeal Deadline") and within thirty (30) days following the Appeal
Deadline, Landlord shall reimburse to Tenant any amounts on account thereof
that were previously paid by Tenant to any such party together with interest
thereon at the Base Rate calculated from the date such amounts were paid by
Tenant until the date on which Tenant is so reimbursed in full.
ARTICLE 28
Broker
------
28.01 Landlord and Tenant each covenant, warrant and represent that,
except for Citigroup Global Markets, Inc. ("Broker") no broker was
instrumental in bringing about or consummating this lease and that it had no
conversations or negotiations with any broker concerning the leasing of the
Premises to Tenant. Tenant agrees to indemnify and hold harmless Landlord
against and from any claims for any brokerage commissions and all costs,
expenses and liabilities in connection therewith, including, without
limitation, reasonable attorneys' fees and expenses, arising out of any
conversations or negotiations had by Tenant with any broker (including
Broker). Landlord agrees to indemnify and hold harmless Tenant against and
from any claims for any brokerage commissions and all costs, expenses and
liabilities in connection therewith, including, without limitation, reasonable
attorneys' fees and expenses, arising out of conversations or negotiations had
by Landlord with any broker other than Broker. The provisions of this Article
28 shall survive the expiration or earlier termination of this Lease.
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ARTICLE 29
Notices
-------
29.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to this lease or pursuant to any applicable law or requirement of public
authority (collectively, "notices") shall be in writing (whether or not so
stated elsewhere in this lease) and shall be deemed to have been properly
given, rendered or made only if sent by (a) registered or certified mail,
return receipt requested, posted in a United States post office station or
letter box in the continental United States, (b) nationally recognized
overnight courier (e.g., Federal Express) with verification of delivery
requested or (c) personal delivery with verification of delivery requested, in
any of such cases addressed as follows:
If to Landlord as follows:
Reckson Court Square, LLC
c/o Reckson Associates Realty Corp.
1350 Avenue of the Americas
Suite 901
New York, New York 10019
Attn: Property Management
with a copy to:
Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Attn: General Counsel
If to Tenant as follows:
Citigroup Realty Services
One Court Square
Long Island City, New York 11120
Attn: Director of Real Estate
And
Citigroup Inc.
Corporate Law Department
909 Third Avenue, 15th Floor
New York, New York 10043
Attn: Associate General Counsel of Real Estate
74
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
Attn: Dean A. Stiffle, Esq.
and shall be deemed to have been given, rendered or made (i) if mailed, on the
second Business Day following the day so mailed, unless mailed to a location
outside of the State of New York, in which case it shall be deemed to have
been given, rendered or made on the third (3rd) Business Day after the day so
mailed, (ii) if sent by nationally recognized overnight courier, on the first
Business Day following the day sent or (iii) if sent by personal delivery,
when delivered and receipted by the party to whom addressed (or on the date
that such receipt is refused, if applicable). Either party may, by notice as
aforesaid, designate a different address or addresses for notices intended for
it. Rent bills may be given by ordinary mail to Tenant's first address above
only, or to such other address as Tenant shall specify. Tenant may send proofs
of payment of Additional Charges by ordinary mail to Landlord's first address
above only, or to such other address as Landlord shall specify.
29.02. Notices hereunder from Landlord may be given by Landlord's
managing agent, if one exists, or by Landlord's attorney. Notices hereunder
from Tenant may be given by Tenant's attorney.
29.03. In addition to the foregoing, Landlord or Tenant may, from
time to time, request in writing that the other party serve a copy of any
notice on one other person or entity designated in such request, and Landlord
shall also have the right to request in writing that Tenant serve a copy of
any notice on any Superior Mortgagee, such service in any case to be effected
as provided in Section 29.01 or 29.02.
29.04. All notices given by Landlord under Section 22.02 shall
contain a statement in at least 12-point bold type and capital letters stating
"THIS IS A DEFAULT NOTICE" as a condition to the effectiveness thereof.
ARTICLE 30
Estoppel Certificates
---------------------
30.01. Each party agrees, at any time and from time to time, as
requested by the other party with not less than ten (10) Business Days' prior
notice, to execute and deliver to the other a statement in the form annexed
hereto as Exhibit M-1 (with such
75
other information concerning this lease as Landlord or any Superior Mortgagee
may reasonably request), in the case of a statement to be delivered by Tenant,
and in the form annexed hereto as Exhibit M-2 (with such other information
concerning this lease as Tenant may reasonably request), in the case of a
statement to be delivered by Landlord, it being intended that any such
statement delivered pursuant hereto shall be deemed a representation and
warranty to be relied upon by the party requesting the certificate and by
others with whom such party may be dealing, regardless of independent
investigation; provided, however, the reliance referred to herein shall be
limited to the party giving such statement being estopped from contradicting
any of the statements made in such certificate.
ARTICLE 31
Memorandum of Lease
-------------------
31.01. Tenant shall not record this lease, but contemporaneous
herewith, Landlord and Tenant shall execute, acknowledge and deliver to other,
and Tenant may record, a statutory form of memorandum with respect to this
lease pursuant to the provisions of Section 291-C of the Real Property Law of
the State of New York. Following the expiration of the term of this lease (as
the same may be extended), Tenant shall enter into such documentation as is
reasonably required by Landlord in form reasonably acceptable to Tenant to
remove the memorandum of record. The form of memorandum of lease annexed
hereto as Exhibit I is hereby approved by both Landlord and Tenant for
purposes of this Article 31.
ARTICLE 32
No Representations by Landlord
------------------------------
32.01. Tenant expressly acknowledges and agrees that Landlord has
not made and is not making, and Tenant, in executing and delivering this
lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
lease or in any other written agreement which may be made between the parties
concurrently with the execution and delivery of this lease and shall expressly
refer to this lease. All understandings and agreements heretofore had between
the parties are merged in this lease and any other written agreement(s) made
concurrently herewith, which alone fully and completely express the agreement
of the parties and which are entered into after full investigation, neither
party relying upon any statement or representation not embodied in this lease
or any other written agreement(s) made concurrently herewith.
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ARTICLE 33
Easements
---------
33.01. So long as Tenant is a Citibank Tenant, Tenant shall have the
right to grant easements or enter into reciprocal easement or other agreements
to the extent desirable for the purposes of (i) extending the sidewalks and/or
closing off streets adjacent to Premises, and/or (ii) running, maintaining and
operating telecommunication cabling (herein called "Cables") between the Real
Property and the improvements, if any, to be constructed on that certain land
located in Long Island City, New York more particularly shown as Phase I and
Phase II on Exhibit L annexed hereto (the "Adjacent Parcel") (which easements,
at the election of Tenant, may run with the land) so long as (a) any such
easements and agreements do not materially reduce the value of the Premises,
(b) any such easements and agreements do not materially adversely affect
Landlord's ability to operate a multi-tenant Building under the Amended and
Restated Lease or (c) any such easements and agreements do not adversely
affect Landlord's ability to finance Landlord's interest in the Real Property,
and (d) in the case of item (ii), the Adjacent Parcel is owned, controlled or
occupied by Citibank, N.A. or any of its Affiliates, and Tenant, at its sole
cost and expense, will be responsible to disconnect the Cables from the
Adjacent Building and the Building and, if necessary, seal up any connecting
pipes or conduits relating thereto, if the Cables are no longer being used by
an occupant of both the Building and the Adjacent Building. Landlord shall, at
no cost to Landlord, join in the grant of any such easements and shall cause
any Superior Mortgagee to subordinate the lien of its mortgage or deed of
trust thereto.
ARTICLE 34
Holdover
--------
34.01. (a) In the event this lease is not renewed or extended or a
new lease is not entered into between the parties, and if Tenant shall then
hold over after the expiration of the term of this lease (it being agreed that
Tenant shall not be deemed holding over by the mere fact that Tenant's
Property and/or Specialty Alterations remain in the Premises after the
expiration of the term of this lease), the parties hereby agree that Tenant's
occupancy of the Premises after the expiration of the term shall be under a
month-to-month tenancy commencing on the first day after the expiration of the
term of this lease, which tenancy shall be upon all of the terms set forth in
this lease except Tenant shall pay on the first day of each month of the
holdover period as Fixed Rent, an amount equal to the product obtained by
multiplying (i) the greater of (A) one-twelfth of the Fixed Rent payable by
Tenant during the last year of the term of this lease (i.e., the year
immediately prior to the holdover period) or (B) an amount equal to the then
market rental value for the Premises, taking into account all relevant
factors, by (ii) one hundred ten (110%) percent for the first month of such
month-to-month tenancy, one hundred
77
fifteen (115%) percent for the next two months of such month-to-month tenancy,
one hundred twenty-five (125%) percent for the next three months of such
month-to-month tenancy, and one hundred fifty (150%) percent thereafter.
Tenant may dispute such market rental value for the Premises as estimated by
Landlord by giving notice to Landlord within, but in no event after, thirty
(30) days after the giving of Landlord's notice to Tenant (as to the giving of
which notice to Landlord, time shall be deemed of the essence). Enclosed with
such notice, Tenant shall be required to furnish to Landlord the written
opinion of a reputable New York licensed real estate broker having leasing
experience in the Borough of Manhattan, for a period of not less than ten (10)
years setting forth said broker's good faith opinion of the market rental
value of the Premises. If Tenant and Landlord are unable to resolve any such
dispute as to the market rental value for the Premises then such dispute shall
be resolved by an independent arbitrator who shall be a real estate broker of
similar qualifications and shall be selected from a listing of not less than
three (3) brokers furnished by the Manhattan office of the American
Arbitration Association (herein called the "AAA") (or any successor thereto)
to Tenant and Landlord (at the request of either Landlord or Tenant). If
Landlord and Tenant are unable to agree upon the selection of the individual
arbitrator from such listing, then the first arbitrator so listed by the
Manhattan office of the AAA (or any successor thereto) shall be conclusively
presumed to have been selected by both Landlord and Tenant and the decision of
such arbitrator shall be conclusive and binding upon the parties as to the
market rental value for the Premises. Pending the determination of the market
rental value of the Premises upon the expiration of the term of this lease,
Tenant shall pay to Landlord as Fixed Rent an amount computed in accordance
with clause (A) or (B) of this Section 34.01(a) (as Landlord shall then
elect), and upon determination of the market rental value of the Premises in
accordance with the preceding provisions hereof appropriate adjustments and
payments shall be effected. In the event that Landlord shall have elected to
charge Tenant Fixed Rent in an amount computed in accordance with clause (B)
of this Section 34.01(a), then that portion of such Fixed Rent (herein called
the "Holdover Stub Amount") that is the difference between (1) the Fixed Rent
computed in accordance with clause (B) of this Section 34.01(a) and (2) the
Fixed Rent computed in accordance with clause (A) of this Section 34.01(a),
shall be held in escrow by a reputable law firm designated by Landlord pending
the determination of the market rental value of the Premises in accordance
with the preceding provisions hereof, and any interest earned on such Holdover
Stub Amount shall be added to and follow that portion of the Holdover Stub
Amount that is paid to Landlord and/or Tenant in accordance with the decision
of the arbitrator making such determination. It is further stipulated and
agreed that if Landlord shall, at any time after the expiration of the
original term of this lease or after the expiration of any term created
thereafter, proceed to remove Tenant from the Premises as a holdover, the
Fixed Rent for the use and occupancy of the Premises during any holdover
period shall be calculated in the same manner as set forth above.
(b) Notwithstanding anything to the contrary contained in this
lease, the acceptance of any rent paid by Tenant pursuant to Section 34.01(a)
shall not
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preclude Landlord from commencing and prosecuting a holdover or summary
eviction proceeding, or from collecting any amounts (including, without
limitation, reasonable counsel fees) payable by Tenant pursuant to Section
27.02 in connection with any such holdover or summary eviction proceeding, and
the preceding sentence shall be deemed to be an "agreement expressly providing
otherwise" within the meaning of Section 223-c of the Real Property Law of the
State of New York but in no event shall Tenant be responsible to the Landlord
for any monetary damages, including, without limitation, any consequential,
punitive, special or speculative damages of any kind, lost profits or like
damages alleged to have occurred as a result of any breach of this Lease, if
any, suffered by the Landlord by reason of the Tenant's holdover in the
Premises.
ARTICLE 35
Miscellaneous Provisions and Definitions
----------------------------------------
35.01. Modifications. No agreement shall be effective to change,
modify, waive, release, discharge, terminate or effect an abandonment of this
lease, in whole or in part, including, without limitation, this Section 35.01,
unless such agreement is in writing, refers expressly to this lease and is
signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of the abandonment is
sought. As set forth in the proviso contained in Section 7.05(a), IN THE CASE
OF ANY MODIFICATION OF THIS LEASE AFTER AN ASSIGNMENT OF THIS LEASE WHICH
INCREASES THE OBLIGATIONS OF OR DECREASES THE RIGHTS OF TENANT, THE NAMED
TENANT AND ANY SUBSEQUENT ASSIGNOR OF THIS LEASE SHALL NOT BE LIABLE FOR ANY
SUCH INCREASE OR DECREASE UNLESS IT HAS GIVEN ITS WRITTEN CONSENT THERETO.
35.02. Successors and Assigns. Except as otherwise expressly
provided in this lease, the obligations of this lease shall bind and benefit
the successors and assigns of the parties hereto with the same effect as if
mentioned in each instance where a party is named or referred to; provided,
however, that (a) no violation of the provisions of Article 7 shall operate to
vest any rights in any successor or assignee of Tenant and (b) the provisions
of this Article 35 shall not be construed as modifying the conditions of
limitation contained in Article 22.
35.03. Limitation on Liability. Tenant shall look only to Landlord's
estate and property in the Real Property (which shall be deemed to include the
proceeds of any insurance (net of any required expenditures under this lease
made by Landlord), condemnation (after all required expenditures under this
lease made by Landlord), sale or refinancing proceeds received by Landlord
with respect to the Real Property) for the satisfaction of Tenant's remedies,
for the collection of a judgment (or other judicial process) requiring the
payment of money by Landlord in the event of any default by Landlord
hereunder, and otherwise no other property or assets of Landlord or any
79
property or assets of its partners, officers, directors, shareholders or
principals, disclosed or undisclosed, shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Tenant's remedies under or
with respect to this lease, the relationship of Landlord and Tenant hereunder
or Tenant's use or occupancy of the Premises. Notwithstanding the foregoing,
with respect to any sale, all undisputed Landlord Reimbursement Amounts and
other amounts that are then payable by Landlord to Tenant under this lease and
that remain outstanding as of the closing date of such sale shall be paid to
Tenant prior to or concurrently with such closing, and either (x) if the
parties shall have been unable to resolve any outstanding disputes with
respect to any Landlord Reimbursement Amounts or other such amounts that are
payable by Landlord to Tenant under this lease, Landlord shall place an amount
equal to the aggregate of any such amounts which are the subject of such
dispute into escrow with a reputable law firm or title company reasonably
acceptable to Landlord and Tenant prior to or concurrently with such closing,
and to be held for disbursement pending the resolution of such dispute (with
any interest earned on such amounts to be added to and follow that portion of
such amounts that is paid to Landlord and/or Tenant in accordance with the
decision of the arbitrator(s) making such determination), with all undisputed
amounts to be paid at or prior to the closing, or (y) the purchaser (in the
event of a sale) shall assume the obligation of Landlord with respect to any
such disputed Landlord Reimbursement Amounts and other amounts that are
payable by Landlord to Tenant under this lease. Further, any contract
respecting such sale must provide for an assumption by purchaser of the
contingent liability for the unaccrued portion of Landlord Reimbursement
Amounts. The obligations of Tenant under this Lease do not constitute personal
obligations of the individual partners, directors, officers, or shareholders
of Tenant.
35.04. Force Majeure. Except as expressly provided in this lease,
Tenant shall have no liability whatsoever to Landlord because (i) Tenant is
unable to fulfill, or is delayed in fulfilling, any of its obligations under
this lease by reason of strike, lock-out or other labor trouble, governmental
preemption of priorities or other controls in connection with a national or
other public emergency or shortages of fuel, supplies or labor resulting
therefrom, or any other cause, whether similar or dissimilar, beyond Tenant's
reasonable control; or (ii) of any failure or defect in the supply, quantity
or character of electricity or water furnished to the Premises, by reason of
any requirement, act or omission of the public utility or others serving the
Building with electric energy, steam, oil, gas or water, or for any other
reason whether similar or dissimilar, beyond Tenant's reasonable control (the
foregoing circumstances described in this Section 35.04 being herein called
"Force Majeure Causes"). In no event shall lack of funds be deemed a Force
Majeure Cause, nor shall any matter be deemed to be beyond Tenant's reasonable
control if the same could be remedied by the satisfaction of a lien, judgment
or other monetary obligation. The provisions of this Section 35.04 shall not
extend (a) any obligation of Tenant to pay money, (b) Tenant's obligation to
vacate the Premises or any applicable portion thereof at the end of the term
of this lease applicable thereto, (c) any obligation in respect of which this
lease provides that time is of the essence with respect to a particular date
or period, or the provisions of this lease expressly limit the amount of time
by which such obligation
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shall be excused by reason of Force Majeure Causes, and (d) any date that is
expressly set forth in this lease on which Tenant must furnish any notice or
information, make any election or exercise any right.
35.05. Definitions. For the purposes of this lease, the following
terms have the meanings indicated:
(a) The term "Business Day" shall mean any day that the New
York Stock Exchange is open for business.
(b) The term "CPI" shall mean the Consumer Price Index for All
Urban Consumers ("CPI-AUC"), New York, New York-Northeastern New Jersey, All
Items (1982-1984=100), issued and published by the Bureau of Labor Statistics
of the United States Department of Labor. In the event that CPI-AUC ceases to
use a 1982-84 base rate of 100 as the basis of calculation, then the CPI-AUC
shall be adjusted to the figure that would have been arrived at had the manner
of computing the CPI-AUC in effect at the date of this lease not been altered.
If CPI-AUC is not available or may not lawfully be used for the purposes
herein stated, the term "CPI" shall mean (i) a successor or substitute index
to CPI-AUC, appropriately adjusted; or (ii) if such a successor or substitute
index is not available or may not lawfully be used for the purposes herein
stated, a reliable governmental or other non-partisan publication, selected by
Tenant and approved by Landlord (which approval shall not be unreasonably
withheld or delayed), evaluating the information theretofore used in
determining CPI-AUC.
(c) The term "CPI Fraction shall mean as of each January 1st
during the term of this lease (an "Adjustment Date"), a fraction (a) the
numerator of which is the CPI for the month immediately preceding such
Adjustment Date and (b) the denominator of which is the CPI for the month in
which the immediately preceding Adjustment Date occurred.
(d) The term "mortgage" shall include a mortgage and/or a deed
of trust, and the term "holder of a mortgage" or "mortgagee" or words of
similar import shall include a mortgagee of a mortgage or a beneficiary of a
deed of trust.
(e) The terms "Legal Requirements" and "laws and requirements
of any public authorities" and words of a similar import shall mean laws and
ordinances of any or all of the federal, state, city, town, county, borough
and village governments, including, without limitation, The Americans with
Disabilities Act of 1990, as amended, and rules, regulations, orders and
directives of any and all departments, subdivisions, bureaus, agencies or
offices thereof, and of any other governmental, public or quasi-public
authorities having jurisdiction over the Premises, and the direction of any
public officer pursuant to law, whether now or hereafter in force, as well as
the requirements under the Existing Agreements and the Recorded Agreements, as
same may be hereinafter amended.
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(f) The term "requirements of insurance bodies" and words of
similar import shall mean rules, regulations, orders and other requirements of
the New York Board of Underwriters and/or the New York Fire Insurance Rating
Organization and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance over the Premises, whether now
or hereafter in force.
(g) The term "Tenant" shall mean the Tenant herein named or
any assignee or other successor in interest (immediate or remote) of the
Tenant herein named, which at the time in question is the owner of the
Tenant's estate and interest granted by this lease; but the foregoing
provisions of this subsection shall not be construed to permit any assignment
of this lease or to relieve the Tenant herein named or any assignee or other
successor in interest (whether immediate or remote) of the Tenant herein named
from the full and prompt payment, performance and observance of the covenants,
obligations and conditions to be paid, performed and observed by Tenant under
this lease, unless Landlord and Tenant shall otherwise agree.
(h) The term "Landlord" shall mean only the owner at the time
in question of Landlord's interest in the Real Property or a lease of the Real
Property, so that in the event of any transfer or transfers of Landlord's
interest in the Real Property or a lease thereof, the transferor shall be and
hereby is relieved and freed of all obligations of Landlord under this lease
accruing after such transfer; provided, however, that such transferee has
assumed and agreed in writing (or is required by an Superior Mortgagee SNDA
Agreement between such transferee and Tenant or by operation of law) to
perform and observe all obligations of Landlord herein during the period it is
the holder of Landlord's interest under this lease.
(i) The terms "herein," "hereof" and "hereunder," and words of
similar import, shall be construed to refer to this lease as a whole, and not
to any particular article or section, unless expressly so stated.
(j) The term "and/or" when applied to one or more matters or
things shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(k) The term "person" shall mean any natural person or
persons, a partnership, a corporation, joint venture, estate, trust,
unincorporated associated or any other form of business or legal association
or entity or any federal, state, county or municipal government or any bureau,
department or agency thereof.
(l) The term "Interest Rate," when used in this lease, shall
mean an interest rate equal to three (3%) percent above the so-called annual
"Base Rate" of interest established and approved by Citibank, N.A., New York,
New York (herein called the "Base Rate"), from time to time, as its interest
rate charged for unsecured loans to its corporate customers, but in no event
greater than the highest lawful rate from time to time in effect.
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(m) The term "Hazardous Materials" shall, for the purposes
hereof, mean any flammable explosives, radioactive materials, hazardous
wastes, hazardous and toxic substances, or related materials, asbestos or any
material containing asbestos, or any other hazardous substance or material,
defined as such by any federal, state or local environmental law, ordinance,
rule or regulation including, without limitation, CERCLA, RCRA and HMTA, as
each of same may have been amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing.
35.06. Survival. Upon the expiration or other termination of this
lease neither party shall have any further obligation or liability to the
other except as otherwise expressly provided in this lease and except for such
obligations as by their nature or under the circumstances can only be, or by
the provisions of this lease, may be, performed after such expiration or other
termination; and, in any event, unless otherwise expressly provided in this
lease, any liability for a payment (including, without limitation, Additional
Charges and Landlord Reimbursement Amounts under Article 3) which shall have
accrued to or with respect to any period ending at the time of, or in the case
of Landlord Reimbursement Amounts, following, the expiration or other
termination of this lease shall survive the expiration or other termination of
this lease, subject to any deadlines expressly set forth in Article 3 or in
any other applicable provision of this lease. In the event that Tenant shall
be entitled to a refund or credit from Landlord hereunder at the time of the
expiration or termination of the term of this lease, the amount of such refund
or credit shall be paid to Tenant within thirty (30) days after such
expiration or termination, unless otherwise expressly set forth in this lease,
failing which any unpaid amount shall bear interest at the Interest Rate from
the due date thereof until such amount is paid to Tenant.
35.07. (a) Requests for Consent. If Tenant shall request Landlord's
consent and Landlord shall fail or refuse to give such consent, Tenant shall
not be entitled to any damages for any withholding by Landlord of its consent,
it being intended that, except as expressly provided in this lease, Tenant's
sole remedy shall be an action for specific performance or injunction, and
that such remedy shall be available only in those cases where Landlord has
expressly agreed in writing not to unreasonably withhold its consent or where
as a matter of law Landlord may not unreasonably withhold its consent.
Notwithstanding the foregoing, Tenant shall not be deemed to have waived a
claim for damages if there is a final judicial determination from which time
for appeal has been exhausted that Landlord acted maliciously or in bad faith
in exercising its judgment or withholding its consent or approval despite its
agreement to act reasonably, in which case Tenant shall have the right to make
a claim for the actual damages incurred by Tenant, but in no event shall
Landlord, nor any partner, director, officer, principal, shareholder, agent,
servant or employee of Landlord be liable for indirect, consequential,
special, punitive, exemplary, incidental or other like damages. Tenant shall
have the right to seek such a final judicial determination that Landlord acted
maliciously or in bad faith without respect to whether Tenant pursued an
action for specific performance or injunction, or
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whether Tenant pursued an arbitration relating to Landlord's withholding of
consent pursuant to any provision of this lease.
(b) If Tenant desires to determine any dispute between
Landlord and Tenant as to the reasonableness of Landlord's decision to refuse
to consent or approve any item as to which Landlord has specifically agreed
that its consent or approval shall not be unreasonably withheld, such dispute
shall be settled and finally determined by arbitration in The City of New York
in accordance with the following provisions of this Section 35.07(b). Within
ten (10) Business Days next following the giving of any notice by Tenant
stating that it wishes such dispute to be so determined, Landlord and Tenant
shall each give notice to the other setting forth the name and address of an
arbitrator designated by the party giving such notice. If the two arbitrators
shall fail to agree upon the designation of a third arbitrator within five (5)
Business Days after the designation of the second arbitrator then either party
may apply to the Manhattan office of the AAA for the designation of such
arbitrator and if he or she is unable or refuses to act within ten (10)
Business Days, then either party may apply to the Supreme Court in New York
County or to any other court having jurisdiction for the designation of such
arbitrator. The three arbitrators shall conduct such hearings as they deem
appropriate, making their determination in writing and giving notice to
Landlord and Tenant of their determination as soon as practicable, and if
possible, within five (5) Business Days after the designation of the third
arbitrator; the concurrence of or, in the event no two of the arbitrators
shall render a concurring determination, then the determination of the third
arbitrator designated, shall be binding upon Landlord and Tenant. Judgment
upon any decision rendered in any arbitration held pursuant to this Section
35.07(b) shall be final and binding upon Landlord and Tenant, whether or not a
judgment shall be entered in any court. Each party shall pay its own counsel
fees and expenses, if any, in connection with any arbitration under this
Section 35.07(b), including the expenses and fees of any arbitrator selected
by it in accordance with the provisions of this Section 35.07(b), and the
parties shall share all other expenses and fees of any such arbitration. The
arbitrators shall be bound by the provisions of this lease, and shall not add
to, subtract from or otherwise modify such provisions. The sole remedy which
may be awarded by the arbitrators in any proceeding pursuant to this Section
35.07(b) is an order compelling Landlord to consent to or approve the matter
in dispute, and the arbitrators may not award damages or grant any monetary
award or any other form of relief. Any determination by the arbitrators that
Landlord was unreasonable in refusing to grant its consent or approval as to
the matter in dispute shall be deemed a granting of Landlord's consent or
approval, and upon receipt of the arbitrators' determination, Tenant shall be
authorized to take the action for which Landlord's consent or approval was
sought.
35.08. Excavation upon Adjacent Land or Under the Building. If an
excavation shall be made upon land adjacent to or under the Building, or shall
be authorized to be made, then, subject to any applicable provisions of
Article 16, Tenant shall afford to the person causing or authorized to cause
such excavation, license to enter
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the Premises for the purpose of performing such work as said person shall deem
reasonably necessary or desirable to preserve and protect the Building from
injury or damage to support the same by proper foundations, without any claim
for damages or liability against Landlord and without reducing or otherwise
affecting Tenant's obligations under this lease. In the event that Landlord or
its employees or contractors shall perform such excavation, Landlord shall use
reasonable efforts to cause the foregoing to be performed in such a manner as
to minimize any interference with Tenant's operation of its business in the
Premises and, Landlord shall indemnify Tenant from and against any and all
claims arising from or in connection with the performance of such work,
together with all reasonable, actual out-of-pocket costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all reasonable
attorneys' fees and expenses.
35.09. Governing Law; Severability; Captions; Rules of
Interpretation; Independent Covenants; Gender. Irrespective of the place of
execution or performance, this lease shall be governed by and construed in
accordance with the laws of the State of New York. If any provisions of this
lease or the application thereof to any person or circumstance shall, for any
reason and to any extent, be invalid or unenforceable, the remainder of this
lease and the application of that provision to other persons or circumstances
shall not be affected but rather shall remain valid and be enforced to the
extent permitted by law. The table of contents, captions, headings and titles
in this lease are solely for convenience of references and shall not affect
its interpretation. This lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing
this lease to be drafted. Each covenant, agreement, obligation or other
provision of this lease on Tenant's part to be performed, shall be deemed and
construed as a separate and independent covenant of Tenant, not dependent on
any other provision of this lease. All terms and words used in this lease,
shall be deemed to include any other number and any other gender as the
context may require.
35.10. Time for Payment of Rent. If under the terms of this lease
Tenant is obligated to pay Landlord a sum in addition to the Fixed Rent under
the lease and no payment period therefor is specified, Tenant shall pay
Landlord the amount due within thirty (30) days after being billed
(accompanied by reasonable supporting documentation where such supporting
documentation is required by an express provision of this lease). If any
amount payable by Landlord to Tenant hereunder is not paid within five (5)
Business Days after the due date thereof, unless otherwise set forth in any
other provision of this lease, the same shall bear interest at the rate set
forth in Section 24.05 from the due date thereof until such amount is paid to
Tenant.
35.11. Due Authorization; Execution and Delivery. Each party hereto
represents and warrants to the other that this lease has been duly authorized,
executed and delivered by such party. Landlord further represents and warrants
that the Office of Foreign Assets Control of the United States Department of
the Treasury has not listed
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Landlord or any of Landlord's affiliates, or any person that controls, is
controlled by, or is under common Control with Landlord, on its list of
Specially Designated Nationals and Blocked Persons. Tenant further represents
and warrants that the Office of Foreign Assets Control of the United States
Department of the Treasury has not listed Tenant or any of Tenant's Affiliates
on its list of Specially Designated Nationals and Blocked Persons.
35.12. Sales Tax. If any sales or other tax is payable with respect
to any cleaning, electricity or other services which Tenant obtains or
contracts for directly from any third party or parties, Tenant shall file any
required tax returns and shall pay any such tax, and Tenant shall indemnify
and hold Landlord harmless from and against any loss, damage or liability
suffered or incurred by Landlord on account thereof.
35.13. Standard for Consent. Whenever this lease provides that a
party shall not unreasonably withhold its consent, such phrase shall be deemed
to mean that such consent will not be unreasonably withheld, conditioned or
delayed.
35.14. Meaning of Other "tenants". Wherever references are made in
this lease to any other "tenant" of the Building, such references shall be
deemed to include any occupant occupying space in the Building, whether or not
pursuant to a written agreement.
35.15. Conflicts with Exhibits. Any conflicts between this lease and
the exhibits to this lease shall be resolved in favor of this lease.
35.16. Temporary Takings. Any provision of this lease which
prohibits or limits the use or occupancy of any part of the Premises by any
government agency or department shall not apply with respect to any temporary
taking or occupancy described in Article 20 hereof. Any provision of this
lease which requires Tenant to indemnify or otherwise be responsible to
Landlord or any other party for the acts or omissions of any occupant of the
Premises shall not apply with respect to any government agency or department
occupying any portion of the Premises or anyone occupying any portion of the
Premises through or under such government agency or department in connection
with any temporary taking or occupancy described in Article 20 hereof.
35.17. Subway Agreement. As of the date of this lease, Tenant has
assigned to Landlord, and Landlord has assumed from Tenant, the Subway
Agreement. Notwithstanding the foregoing, during the term of this lease,
Tenant shall retain the right to negotiate, and direct the Landlord to enter
into, amendments and/or modifications to the Subway Agreement; provided, that,
any such amendment or modification shall require the consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed; it
being understood and agreed that Landlord shall consent to any amendment or
modification if the effect of such amendment or modification is to increase
Landlord's financial obligations thereunder by no more than $25,000 in the
aggregate. Landlord and Tenant acknowledge and agree that any amendment or
modification to the
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Subway Agreement which may expose Landlord to liability in excess of $25,000
shall not, in and of itself, be a reasonable basis for Landlord to withhold,
condition or delay consent.
ARTICLE 36
Extension Terms
36.01. (a) For purposes hereof:
the term "First Five Year Option" shall mean Tenant's right to
extend the term of this lease for an additional term (herein called the "First
Extension Term") of five (5) years commencing on May 12, 2020 and ending on
May 11, 2025;
the term "Second Five Year Option" shall mean Tenant's right to
extend the term of this lease for an additional term (herein called the
"Second Extension Term") of five (5) years commencing on May 12, 2025 and
ending on May 11, 2030. Tenant shall have the right to exercise the Second
Five Year Option only if Tenant shall have exercised the First Five Year
Option;
the term "Third Five Year Option" shall mean Tenant's right to
extend the term of this lease for an additional term (herein called the "Third
Extension Term") of five (5) years commencing on May 12, 2030 and ending on
May 11, 2035. Tenant shall have the right to exercise the Third Five Year
Option only if Tenant shall have exercised the Second Five Year Option;
the term "Fourth Five Year Option" shall mean Tenant's right to
extend the term of this lease for an additional term (herein called the
"Fourth Extension Term") of five (5) years commencing on May 12, 2035 and
ending on May 11, 2040. Tenant shall have the right to exercise the Fourth
Five Year Option only if Tenant shall have exercised the Third Five Year
Option;
the term "Fifth Five Year Option" shall mean Tenant's right to
extend the term of this lease for an additional term (herein called the "Fifth
Extension Term") of five (5) years commencing on May 12, 2040 and ending on
May 11, 2045. Tenant shall have the right to exercise the Fifth Five Year
Option only if Tenant shall have exercised the Fourth Five Year Option;
the term "Extension Option" shall mean the First Five Year Option or
the Second Five Year Option or the Third Five Year Option or the Fourth Five
Year Option or the Fifth Five Year Option, as the case may be;
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the term "Extension Term" shall mean the First Extension Term or the
Second Extension Term or the Third Extension Term or the Fourth Extension Term
or the Fifth Extension Term, as the case may be;
the term "Extension Premises" shall mean that portion of the
Premises selected by Tenant and designated in the Extension Election Notice;
provided, however, that Tenant only shall have the right to designate as the
Extension Premises either:
(i) so long as Tenant has not exercised the Insurance Election,
the entire Premises demised by this lease as of the date on which
Tenant gives the applicable Extension Election Notice (the "Option
One Extension Premises"); or
(ii) a portion of the Premises demised by this lease as of the
date on which Tenant gives the applicable Extension Election Notice,
containing not less than three (3) full contiguous Office Floors on
or above the 6th floor of the Building, plus, if Tenant elects in
Tenant's sole discretion, all or any portion of the (w) retail space
and/or storage space located in the Lobby and/or Sub-concourse, (x)
Mechanical Areas, (y) rooftop areas of the Building, and (z) the 3rd
floor and/or 4th floor and/or 50th floor of the Building, whether or
not the same shall be contiguous to any other portion of such
Extension Premises (the "Option Two Extension Premises"); or
(iii) all or any portion of the Premises comprising retail
space and/or storage space located in the lobby and/or concourse
areas of the Building as shown on Exhibit B-2 and Exhibit B-3
annexed to the Amended and Restated Lease (the "Option Three
Extension Premises").
Any Extension Election Notice which fails to designate as the Extension
Premises one of the three options set forth in the immediately preceding
sentence shall be deemed to constitute a designation of the Option One
Extension Premises.
(b) The applicable Extension Option may be exercised only by
Tenant giving notice to Landlord to that effect (herein called an "Extension
Election Notice") at least fifteen (15) months prior to the expiration of the
initial term of this lease or the then Extension Term, as the case may be.
Time shall be of the essence with respect to the exercise of each Extension
Option. Within fifteen (15) days after Landlord receives an Extension Election
Notice, Landlord shall deliver a notice to Tenant specifying its estimate of
ninety-five percent (95%) of the Market Value Rent for the Extension Premises
for such Extension Term (herein called a "Rent Notice"); provided, that,
notwithstanding the foregoing, Landlord may elect to deliver a Rent Notice at
any time prior to the date that is three hundred fifty (350) days prior to the
expiration of the initial term of this lease or the then Extension Term, as
the case may be, without regard to when Landlord actually received the
Extension Election Notice. Tenant shall notify Landlord within thirty (30)
days after the date that Tenant receives the Rent Notice
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whether it approves Landlord's estimate of ninety-five percent (95%) of the
Market Value Rent (herein called a "Response Notice"). If Tenant fails to
reject such estimate within such thirty (30) day period, Landlord shall have
the right to give a second notice to Tenant (herein called a "Landlord's
Notice"), which notice, as a condition to its effectiveness, shall state in
bold capital letters that it is a DEEMED REVOCATION NOTICE, and if Tenant
fails to reject such estimate within five (5) business days after the giving
of the Landlord's Notice to Tenant, time being of the essence, then Tenant
shall be deemed to have sent a Revocation Notice. If Tenant gives a Response
Notice that it disapproves of Landlord's designation of ninety-five percent
(95%) of the Market Value Rent, then Landlord and Tenant shall negotiate in
good faith for a period of thirty (30) days after the date of the Response
Notice to reach agreement on ninety-five percent (95%) of the Market Value
Rent. If Landlord and Tenant do not reach agreement on ninety-five percent
(95%) of the Market Value Rent within the thirty (30) day period, then Tenant,
as its sole options, may either (i) revoke its Extension Election Notice by
delivering a "Revocation Notice" (herein so called) to Landlord within ten
(10) days after the end of the thirty (30) day negotiation period (herein
called the "Revocation Period"), or (ii) deliver an "Arbitration Notice"
(herein so called) to Landlord before the end of the Revocation Period,
notifying Landlord of its election to submit the determination of Market Value
Rent to arbitration in accordance with Section 36.03. If Tenant does not
deliver a Revocation Notice or an Arbitration Notice before the end of the
Revocation Period, then Tenant shall be deemed to have given a Revocation
Notice. If Tenant gives a Revocation Notice before the end of the Revocation
Period or is otherwise deemed to have given a Revocation Notice, then Tenant
shall have the option to either (i) rescind its exercise of the applicable
Extension Option ab initio, in which case Tenant shall have no further rights
to extend the term of this lease under this Article 36, (herein called "Option
1") or (ii) extend the term of this lease one (1) time for a period of up to
eighteen (18) months in six month multiples (i.e., Tenant may elect to extend
the term for six (6), twelve (12) or eighteen (18) months), under the same
terms as this lease, except that the Fixed Rent for the period so elected by
Tenant shall be at the lower of (x) the Market Value Rent set forth in the
Rent Notice (but in no event less than the Fixed Rent per square foot that was
payable during the last month of the term of this lease or as of the end of
then expiring Extension Term, as applicable (the "Escalated Rent")), or (y)
105% of the Escalated Rent (herein called "Option 2"), and Tenant shall have
no further rights under this Article 36. If Tenant gives a Revocation Notice
before or is otherwise deemed to have given a Revocation Notice under this
Section 36.01(b) and has failed within ten (10) days of its receipt of
Landlord's Notice to either (i) elect Option 1 or Option 2, or (ii) in the
case Tenant elects Option 2, specify a period for which Tenant desires to
extend the term of this lease, then in either such case, Tenant shall be
deemed to have rescinded its Extension Election Notice ab initio and Tenant
shall have no further rights to extend the term of this lease under this
Article 36. Subject to the provisions of this Article 36, upon the giving of
an Extension Election Notice the term of this lease shall be extended in
accordance with the terms hereof for the applicable Extension Term without the
execution of any further instrument. Unless the context shall otherwise
require, and except as hereinafter set forth with respect to an extension of
the
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term of this lease with respect to less than the entire Premises, each
Extension Term shall be upon the same terms, covenants and conditions of this
lease as shall be in effect immediately prior to such extension, except that:
(A) there shall be no right or option to extend the term
of this lease for any period of time beyond the expiration of the
Fifth Extension Term;
(B) the Fixed Rent for each Extension Term shall be an
amount equal to ninety-five percent (95%) of the then Market Value
Rent as determined in accordance with this Article 36; and
(C) Tenant shall not be entitled to any abatement of
Fixed Rent or Additional Charges or any work allowance, and Landlord
shall not be obligated to perform any work to prepare the Extension
Premises for Tenant's occupancy during the applicable Extension Term.
Notwithstanding anything to the contrary contained herein,
and in recognition of the fact that many of the terms and conditions of this
lease may not be appropriate with respect to a tenancy for less than the
entire Premises and Landlord and Tenant would wish to make appropriate
amendments or modifications to such terms and conditions, if Tenant designates
as the Extension Premises less than the entire Premises, then this lease shall
automatically, without further action or execution by the parties, be deemed
to be restated and amended as of the commencement date of the applicable
Extension Term to reflect all of the terms and conditions set forth in the
form of Amended and Restated Lease annexed hereto as Exhibit J, modified only
to (i) complete, in accordance with the terms hereof, those items left blank
by necessity on said Exhibit J, such as the description of the Extension
Premises, Tenant's Share and the amount of Fixed Rent, and (ii) reflect that
Tenant will pay increases in Operating Expenses and Taxes over a base year
(i.e., as opposed to paying same on a net basis). Upon the request of either
party, Landlord and Tenant shall sign and deliver the Amended and Restated
Lease annexed hereto, with the completion of items as aforesaid; provided,
however, that without limiting the remedies available to either party for the
other party's failure or refusal to so sign and deliver said Amended and
Restated Lease, such failure by either party shall not in any way affect the
aforesaid automatic restatement and amendment of this lease.
36.02. The exercise of any of the aforesaid options to extend the
term of this lease at a time when any default has occurred and is continuing
beyond the expiration of any applicable notice or grace period provided for in
this lease, shall, upon written notice by Landlord, be void and of no force
and effect unless either (i) Landlord shall elect otherwise or (ii) Tenant
disputes Landlord's determination that the Extension Election Notice is void
and of no force or effect and seeks judicial relief within fifteen (15)
Business Days after the giving of such notice by Landlord to Tenant, in which
event the issue of whether the Extension Election Notice is void and of no
force or effect shall
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be determined by a court of competent jurisdiction. The termination of this
lease during the initial term shall also terminate and render void any option
or right on Tenant's part to extend this lease for any Extension Term (and the
termination of this lease during a particular Extension Term shall also
terminate and render void any option or right on Tenant's part to extend this
lease for any successive Extension Term), whether or not such option or right
shall have been exercised. Tenant's option to extend the term of this lease
for the Extension Term may not be severed from this lease or separately sold,
assigned or otherwise transferred.
36.03. (a) If Tenant delivered an Arbitration Notice, then Landlord
and Tenant shall negotiate in good faith for a period of thirty (30) days
prior to the commencement of the applicable Extension Term to reach agreement
on ninety-five percent (95%) of the Market Value Rent. If Landlord and Tenant
do not reach agreement on ninety-five percent (95%) of the Market Value Rent
within said thirty (30) day period, then either Tenant or Landlord may
initiate the arbitration process (the party initiating such process being
herein referred to as the "Initiating Party") provided for herein by
designating its arbitrator in a subsequent notice to the other party (herein
called the "Responding Party") (which notice shall specify the name and
address of the person designated to act as an arbitrator on its behalf) given
to the Responding Party within thirty (30) days following the commencement of
the applicable Extension Term. Within ten (10) Business Days after the
Responding Party's receipt of notice of the designation of the Initiating
Party's arbitrator, the Responding Party shall give notice to the Initiating
Party specifying the name and address of the person designated to act as an
arbitrator on its behalf. If the Responding Party fails to notify the
Initiating Party of the appointment of its arbitrator within the time above
specified, then the Initiating Party shall provide an additional notice to the
Responding Party requiring the Responding Party's appointment of an arbitrator
within five (5) Business Days after the Responding Party's receipt thereof. If
the Responding Party fails to notify the Initiating Party of the appointment
of its arbitrator within the time specified by the second notice, the
appointment of the second arbitrator shall be made in the same manner as
hereinafter provided for the appointment of a third arbitrator in a case where
the two arbitrators appointed hereunder and the parties are unable to agree
upon such appointment. The two arbitrators so chosen shall meet within ten
(10) Business Days after the second arbitrator is appointed, and shall
exchange sealed envelopes each containing such arbitrator's written
determination of an amount equal to ninety-five percent (95%) of the
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Market Value Rent for the Extension Premises during the applicable Extension
Term. Ninety-five percent (95%) of the Market Value Rent specified by
Landlord's arbitrator shall herein be called "Landlord's Submitted Value" and
ninety-five percent (95%) of the Market Value Rent specified by Tenant's
arbitrator shall herein be called "Tenant's Submitted Value". Neither Landlord
nor Landlord's arbitrator shall be bound by nor shall any reference be made to
the determination of ninety-five percent (95%) of the Market Value Rent for
the Extension Premises during the applicable Extension Term which was
furnished by Landlord in the Rent Notice. Neither Tenant nor Tenant's
arbitrator shall be bound by nor shall any reference be made to the
determination of ninety-five percent (95%) of the Market Value Rent for the
Extension Premises during the applicable Extension Term which was furnished by
Tenant in response to the Rent Notice. Copies of such written determinations
shall promptly be sent to both Landlord and Tenant. Any failure of either such
arbitrator to meet and exchange such determinations shall be acceptance of the
other party's arbitrator's determination as ninety-five percent (95%) of the
Market Value Rent, if, and only if, such failure persists for three (3) days
after notice to the party for whom such arbitrator is acting, and provided
that such three (3) day period shall be extended by reason of any applicable
condition of Force Majeure Causes. If the higher determination of ninety-five
percent (95%) of Market Value Rent is not more than one hundred two percent
(102%) of the lower determination of ninety-five percent (95%) of the Market
Value Rent, then ninety-five percent (95%) of the Market Value Rent shall be
deemed to be the average of the two determinations. If, however, the higher
determination is more than one hundred two percent (102%) of the lower
determination, then within five (5) days of the date the arbitrators submitted
their respective Market Value Rent determinations, the two arbitrators shall
together appoint a third arbitrator. In the event of their being unable to
agree upon such appointment within said five (5) day period, the third
arbitrator shall be selected by the parties themselves if they can agree
thereon within a further period of five (5) days. If the parties do not so
agree, then either party, on behalf of both and on notice to the other, may
request such appointment by the American Arbitration Association (or any
successor organization thereto) in accordance with its rules then prevailing
or if the American Arbitration Association (or such successor organization)
shall fail to appoint said third arbitrator within fifteen (15) days after
such request is made, then either party may apply, on notice to the other, to
the Supreme Court, New York County, New York (or any other court having
jurisdiction and exercising functions similar to those now exercised by said
Court) for the appointment of such third arbitrator. Within five (5) days
after the appointment of such third arbitrator, Landlord's arbitrator shall
submit Landlord's Submitted Value to such third arbitrator and Tenant's
arbitrator shall submit Tenant's Submitted Value to such third arbitrator.
Such third arbitrator shall, within thirty (30) days after the end of such
five (5) day period, select either Landlord's Submitted Value or Tenant's
Submitted Value as ninety-five percent (95%) of the Market Value Rent of the
Premises during the applicable Extension Term and send copies of his or her
determination promptly to both Landlord and Tenant specifying whether
Landlord's Submitted Value or Tenant's Submitted Value shall be ninety-five
percent (95%) of the Market Value Rent of the Extension Premises during the
applicable Extension Term.
(b) Each party shall have a right to present evidence to the
arbitrators, produce witnesses or experts to be heard by the arbitrators, and
provide such other information that may be relevant in connection with the
arbitration. The decision of the first and second arbitrator or the third
arbitrator, as the case may be, shall be conclusively binding upon the
parties, and judgment upon the decision may be entered in any court having
jurisdiction.
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(c) Each party shall pay the fees and expenses of the one of
the two original arbitrators appointed by or for such party, and the fees and
expenses of the third arbitrator and all other expenses (not including the
attorneys' fees, witness fees and similar expenses of the parties which shall
be borne separately by each of the parties) of the arbitration shall be borne
by the parties equally.
(d) Each of the arbitrators selected as herein provided shall
have at least ten (10) years experience in the leasing or renting of office
space in Comparable Buildings.
(e) In the event the aforesaid arbitration process is
initiated, then as of the commencement date of the applicable Extension Term,
Tenant shall pay the amount equal to the average of Landlord's Submitted Value
and Tenant's Submitted Value and when the determination has actually been
made, an appropriate retroactive adjustment shall be made as of the
commencement date of applicable Extension Term. Overpayments shall be paid by
Landlord to Tenant and underpayments shall be paid by Tenant to Landlord
promptly after such determination, in both cases, together with interest
thereon at the Base Rate.
36.04. For purpose for this Article 36, the determination of "Market
Value Rent" shall take into account all relevant factors and shall be based
upon the rents that an unaffiliated third party would be willing to pay to
Landlord to a term comparable to the applicable Extension Term for the
applicable Extension Premises on all of the same terms and conditions which
the Extension Premises will be leased to Tenant pursuant to the terms of this
Article 36, including, without limitation, the provisions of the Amended and
Restated Lease provided that Tenant's shall pay its proportionate share of
increases in Taxes and Operating Expenses over a base year (i.e., as opposed
to paying same on a net basis).
36.05. In the event that Tenant exercises any Extension Option with
respect to less than the entire Premises then demised by this lease in
accordance with the applicable provisions hereof, then effective as of the
Expiration Date of the initial term of this lease or the applicable Extension
Term, as the case may be, the provisions of this lease governing the
respective rights and obligations of Landlord and Tenant as of the expiration
of the term of this lease (including, without limitation, the provisions of
Article 21 and Article 34 shall apply with full force and effect to the
portion of the Premises that has been omitted by Tenant from the Extension
Premises.
36.06. In the event that Tenant designates as the Extension Premises
less than the entire Premises, then, prior to the commencement date of the
applicable Extension Term, Landlord shall, at its cost, perform the
Submetering Work, and Tenant shall perform the Demising Work but only to the
extent Tenant would have otherwise been required to do pursuant to Section
4.02(b).
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ARTICLE 37
Arbitration
37.01. Either party may request arbitration of any matter in dispute
which, pursuant to the terms of this lease, expressly allows such dispute to
be resolved by arbitration, in which case, except as provided to the contrary
elsewhere in this lease, the following procedures shall apply. The party
desiring such arbitration shall give notice to the other party. If the parties
shall not have agreed on a choice of an arbitrator within fifteen (15) days
after the service of such notice, then each party shall, within ten (10) days
thereafter appoint an arbitrator, and advise the other party of the arbitrator
so appointed. A third arbitrator shall, within ten (10) days following the
appointment of the two (2) arbitrators, be appointed by the two arbitrators so
appointed or by the AAA, if the two arbitrators are unable, within such ten
(10) day period, to agree on the third arbitrator. If either party fails to
appoint an arbitrator (the "Failing Party"), the other party shall provide an
additional notice to the Failing Party requiring the Failing Party's
appointment of an arbitrator within five (5) Business Days after the Failing
Party's receipt thereof. If the Failing Party fails to notify the other party
of the appointment of its arbitrator within such five (5) Business Day period,
the appointment of the second arbitrator shall be made by the AAA in the same
manner as hereinabove provided for the appointment of a third arbitrator in a
case where the two arbitrators appointed hereunder are unable to agree upon
such appointment. The three (3) arbitrators shall render a resolution of said
dispute or make the determination in question. In the absence, failure,
refusal or inability of the AAA to act within twenty (20) days, then either
party, on behalf of both, may apply to a Justice of the Supreme Court of New
York, New York County, for the appointment of the third arbitrator, and the
other party shall not raise any question as to the court's full power and
jurisdiction to entertain the application and make the appointment. In the
event of the absence, failure, refusal or inability of an arbitrator to act, a
successor shall be appointed within ten (10) days as hereinbefore provided.
Any arbitrator acting under this Article 37 in connection with any matter
shall be experienced in the issue with which the arbitration is concerned and
shall have been actively engaged in such field for a period of at least ten
(10) years before the date of his appointment as arbitrator hereunder.
37.02. All arbitrators chosen or appointed pursuant to this Article
37 shall (a) be sworn fairly and impartially to perform their respective
duties as such arbitrator, and (b) not be an employee or past employee of
Landlord or Tenant or of any other person, partnership, corporation or other
form of business or legal association or entity that controls, is controlled
by or is under common control with Landlord or Tenant. Within sixty (60) days
after the appointment of such arbitrators, such arbitrators shall determine
the matter which is the subject of the arbitration and shall issue a written
opinion. The decision of the arbitrators shall be conclusively binding upon
the parties, and judgment upon the decision may be entered in any court having
jurisdiction. Landlord and Tenant shall each pay (i) the fees and expenses of
the arbitrator selected by
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it, and (ii) fifty (50%) percent of the fees and expenses of the arbitrator
appointed by the AAA. The losing party shall reimburse the prevailing party
for the reasonable counsel fees and disbursements incurred by the prevailing
party in connection with such arbitration. Each party shall have a right to
present evidence to the arbitrators, produce witnesses or experts to be heard
by the arbitrators, and provide such other information that may be relevant in
connection with the arbitration.
37.03. Landlord and Tenant agree to sign all documents and to do all
other things necessary to submit any such matter to arbitration and further
agree to, and hereby do waive, any and all rights they or either of them may
at any time have to revoke their agreement hereunder to submit to arbitration
and to abide by the decision rendered thereunder. For such period, if any,
that this agreement to arbitrate is not legally binding or the arbitrator's
award is not legally enforceable, the provisions requiring arbitration shall
be deemed deleted, and matters to be determined by arbitration shall be
subject to litigation.
37.04. Any dispute which is required by this lease to be resolved by
expedited arbitration shall be submitted to binding arbitration under the
Expedited Procedures provisions (currently, Rules 56 through 60) of the
Arbitration Rules of the Real Estate Industry of the AAA. In cases where the
parties utilize such expedited arbitration: (a) the parties will have no right
to object if the arbitrator so appointed was on the list submitted by the AAA
and was not objected to in accordance with Rule 54 (except that any objection
shall be made within four (4) days from the date of mailing), (b) the Notice
of Hearing shall be given four (4) days in advance of the hearing, (c) the
first hearing shall be held within seven (7) Business Days after the
appointment of the arbitrator, (d) if the arbitrator shall find that a party
acted unreasonably in withholding or delaying a consent or approval, such
consent or approval shall be deemed granted (but the arbitrator shall not have
the right to award damages, unless the arbitrator shall find that such party
acted in bad faith), and (e) the losing party in such arbitration shall pay
the arbitration costs charged by the AAA and/or the arbitrator, together with
the reasonable counsel fees and disbursements incurred by the prevailing party
in connection with such arbitration.
37.05. Arbitration hearings hereunder shall be held in New York
County. The arbitrators shall, in rendering any decision pursuant to this
Article 37, answer only the specific question or questions presented to them.
In answering such question or questions (and rendering their decision), the
arbitrators shall be bound by the provisions of this lease, and shall not add
to, subtract from or otherwise modify such provisions.
37.06. Judgment may be had on the decision and award of an
arbitrator rendered pursuant to the provisions of this Article 37 and may be
enforced in accordance with the laws of the State of New York.
37.07. The provisions of this Article 37 shall not be applicable to
any arbitration conducted pursuant to Article 34 or Article 36.
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ARTICLE 38
Confidentiality; Press Releases
38.01. Landlord acknowledges that it may have access to certain
confidential information of Tenant concerning Tenant's businesses, facilities,
operations, plans, proprietary software, technology, and products
("Confidential Information"). Confidential Information shall not include any
information that is available to the general public (e.g., SEC filings).
Landlord agrees that it will not use in any way, for its own account or the
account of any third party, except as expressly permitted by this lease, nor
disclose to any third party (except public filings and other information
available to the general public, as required by law (including, without
limitation, any plans and specifications, drawings or other like items which
must be submitted to or filed with any governmental agency), judicial
proceeding or to its attorneys, accountants, and other advisors and mortgagees
and prospective purchasers of the Real Property, but only as reasonably
necessary and subject to the confidentiality provisions hereof), any of
Tenant's Confidential Information or any of the terms and conditions of this
lease and will take reasonable precautions to protect the confidentiality of
such Confidential Information and the terms and conditions of this lease (in
each case, except as permitted hereby). Tenant agrees that it will not use in
any way, for its own account or the account of any third party, except as
expressly permitted by this lease, nor disclose to any third party (except
public filings and other information available to the general public, as
required by law, judicial proceeding or to its attorneys, accountants, and
other advisors, but only as reasonably necessary and subject to the
confidentiality provisions hereof), any of the terms and conditions of this
lease and will take reasonable precautions to protect the confidentiality of
the terms and conditions of this lease (except as permitted hereby). The
obligations of Landlord and Tenant under this Section 38.01 shall survive the
expiration or termination of this lease.
38.02. Neither party hereto may issue (or cause to be issued) a
press release or written statement to the press with respect or concerning
this lease or the terms hereof without the express consent of the other party
hereto. Notwithstanding the foregoing, either party shall be permitted to
issue any such press release or written statement that is necessary in order
to comply with Legal Requirements. Furthermore, upon notice from Tenant that
any of Landlord's advertisements or press releases are not consistent with
Tenant's corporate policies relating to public relations, Landlord shall
endeavor to cause its advertisements and press releases to be consistent with
Tenant's corporate policies relating to public relations to the extent same
are commercially reasonable.
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ARTICLE 39
Rooftop; Tenant's Antenna and Other Equipment
39.01. Landlord agrees that, subject to all applicable Legal
Requirements, Tenant, at Tenant's sole cost and expense, shall have all rights
(i) with respect to the rooftop of the Building, including without limitation
the rights to use the rooftop of the Building and install (and thereafter
maintain, repair, and operate) equipment thereon, including without limitation
one or more communications apparati (e.g., antennae, microwave dishes or
satellite communications apparati) and other mechanical equipment serving the
Premises (e.g., equipment serving Tenant's supplemental air-conditioning
systems), (ii) in connection therewith, all such rights to install and
thereafter maintain, repair, and operate in one or more portions of the
Building (together with any shaftways, closets and conduits of the Building)
any related support structures, wires and cables for such communications
apparati and any other mechanical equipment serving the Premises (including,
by way of example, equipment serving Tenant's supplemental air-conditioning
systems), and (iii) in connection therewith, the right to grant licenses or
other occupancy agreements to third parties for the use of the rooftop and
installation of equipment thereon and Tenant shall have exclusive rights to
any and all revenue generated therefrom.
39.02. Tenant agrees that, other than the Rooftop Mechanical Areas
(as such term is defined and as such areas are depicted in the Amended and
Restated Lease), Tenant shall not enter into any agreement to lease, license
or otherwise transfer or encumber any portion of the rooftop areas of the
Building located on the 51st, 52nd and 53rd floors of the Building for a term
that expires after the Surrender Date.
ARTICLE 40
Back-Up Power System
40.01. Landlord agrees that, subject to all applicable Legal
Requirements, Tenant, at Tenant's sole cost and expense, shall have the right
to install on any one or more portions of the Building (together with any
shaftways, closets and conduits of the Building) and thereafter maintain,
repair, and operate: (i) one or more battery-powered uninterruptible power
systems, including, without limitation, the Liebert UPS currently located on
the 5th floor of the Building (each herein called a "UPS Battery System"), in
a portion or portions of the Premises to be designated by Tenant (each such
portion herein called a "UPS Area") and (ii) one or more diesel generators and
chiller units, including, without limitation, the two (2) Caterpillar 1500 KW
diesel generators currently located on the 5th floor of the Building, three
(3) fuel tanks currently located in the loading dock (herein collectively
called the "Diesel Generator"), and the 270 ton and 450 ton train chillers
located on the 5th floor (the "Chillers"), in a portion or portions of the
Premises designated by Tenant (herein called the "Generator Area", the UPS
Battery System, the
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Diesel Generator and Chillers are sometimes herein collectively called the
"Back-Up Power System"; the UPS Area and the Generator Area are sometimes
herein collectively called the "Back-Up Power System Area"); provided that in
connection with such installation of the Back-Up Power System Tenant hereby
covenants and agrees that:
(i) such installation shall be performed in accordance with all
applicable Legal Requirements and with all of the applicable
provisions of this lease;
(ii) Tenant shall promptly repair any damage caused to the
Back-Up Power System Area by reason of such installation, including
any repairs, restoration, maintenance, renewal or replacement
thereof necessitated by or in any way caused by or relating to such
installations except to the extent such damage has resulted from the
negligence or willful misconduct of Landlord, its agents,
contractors or employees;
(iii) Tenant will, and does hereby, indemnify and save harmless
Landlord from and against: (A) any and all claims, reasonable
counsel fees, demands, damages, expenses or losses by reason of any
liens, orders, claims or charges resulting from any work done, or
materials or supplies furnished, in connection with the fabrication,
erection, installation, maintenance and operation of the Back-Up
Power System installed by Tenant pursuant to the provisions of this
Article; and (B) any and all claims, costs, demands, expenses, fees
or suits arising out of accidents, damage, injury or loss to any and
all persons and property, or either, whomsoever, or whatsoever
resulting from or arising in connection with the erection,
installation, maintenance, operation and repair of the Back-Up Power
System installed by Tenant pursuant to the provisions of this
Article, except in the case of both (A) and (B) above to the extent
occasioned by the negligence or willful misconduct of Landlord, its
agents, contractors or employees; and
(iv) Tenant shall pay as and when due, and shall be solely
responsible for, any and all taxes, fees, license charges or other
amounts imposed upon Tenant, Landlord or the Real Property in
connection with the Back-Up Power System.
ARTICLE 41
Benefits Cooperation
41.01. Landlord agrees to reasonably cooperate with Tenant in
connection with any application by Tenant (or by any subtenant of Tenant) for
any real estate tax or utility benefits or other benefits, credits or
incentives, including, without limitation, any Industrial Commercial Incentive
Program (ICIP) benefits (herein collectively called
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"Benefits") as may be available from the City or State of New York, or any
governmental agency, quasi-governmental agency or any public utility or
alternate provider, including the execution and filing of any documentation
that may be required for the receipt of such Benefits and/or for any such
Benefits to be paid by Landlord to Tenant, as hereinafter provided. Landlord
further agrees that Tenant shall be entitled to one hundred percent (100%) of
such Benefits that Landlord or the Premises shall receive as a result of
Tenant's use of the Premises or any Leasehold Improvements or other
Alterations performed by or on behalf of Tenant, whether during the term of
this lease or prior. Such cooperation by Landlord shall include, without
limitation, the execution of any necessary or appropriate modification to this
lease, if and to the extent any such approval shall be required and shall not
adversely affect any of the rights or benefits of Landlord or increase the
obligations or liabilities of Landlord under this lease (except to a de
minimis extent, Landlord hereby agreeing that the obligation to provide
notices to the City or State of New York or to any such agency, utility or
provider shall in and of itself constitute a de minimis obligation). Tenant
agrees that (a) to the extent that Landlord shall incur any reasonable
out-of-pocket expense in connection with such cooperation (including, without
limitation, reasonable legal and other professional fees and all reasonable
costs incurred in obtaining State and City tax rulings regarding any such
Benefits transaction), Tenant shall reimburse Landlord for such expense as
Additional Charges hereunder and (b) Tenant agrees to indemnify and hold
harmless Landlord with respect to any liability incurred by Landlord by reason
of such cooperation unless caused by the wrongful acts or omissions of
Landlord or its agents, employees, representatives or contractors.
ARTICLE 42
Intentionally Omitted
ARTICLE 43
Leasehold Mortgages
43.01. As used herein, the term "Leasehold Mortgage" shall mean any
bona fide mortgage, deed of trust, deed to secure debt, assignment, security
interest, pledge, financing statement or any other instrument(s) or
agreement(s) intended to grant security for any obligation (including a
purchase-money or other promissory note) encumbering Tenant's leasehold estate
hereunder, as entered into, renewed, modified, consolidated, amended, extended
or assigned from time to time during the term of this lease. Notwithstanding
anything contained in Article 7 or any other provision of this lease to the
contrary, Tenant's interest in this lease and the leasehold interest created
hereby may at any time and from time to time be, directly or indirectly,
subjected to one or more Leasehold Mortgages upon prior notice to Landlord,
but without the consent of Landlord, and Tenant's interest in this lease may
at any time, directly or indirectly, be assigned to a
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Leasehold Mortgagee (as hereinafter defined) as collateral security; provided,
that notwithstanding anything to the contrary contained in this Article 43 or
elsewhere in this lease: (i) no Leasehold Mortgage or any extension thereof
shall be a lien or encumbrance upon the estate or interest of Landlord in and
to the Premises (collectively, the "Superior Interests"); (ii) such Leasehold
Mortgage shall be subject and subordinate at all times to such Superior
Interests; and (iii) there shall be no obligation of Landlord whatsoever to
subordinate its interest in any of the Superior Interests to any Leasehold
Mortgage or to "join in" any Leasehold Mortgage. In addition, Tenant may
assign any or all subleases entered into by Tenant in accordance with Article
7 to a Leasehold Mortgagee as collateral security for the obligations of
Tenant under such mortgage. No such mortgage shall be valid or of any force or
effect unless and until a true copy of the original of each instrument
creating and effecting such mortgage and written notice containing the name
and post office address of the Leasehold Mortgagee thereunder shall have been
delivered to Landlord. Any Leasehold Mortgage which does not conform to the
provisions of this Article 43 shall be deemed to be null and void ab initio.
As used herein, the term "Leasehold Mortgagee" shall mean the holder of a
Leasehold Mortgage that is in the business of making commercial loans.
43.02. (a) If Tenant shall mortgage its interest in this lease and
the leasehold interest created hereby, Landlord shall give to each Leasehold
Mortgagee whose name and address shall have theretofore been provided to
Landlord, a copy of each notice of default by Tenant and each notice of
termination of this lease at the same time as, and whenever, any such notice
of default or notice of termination shall thereafter be given by Landlord to
Tenant, and no such notice of default or notice of termination by Landlord
shall be deemed to have been duly given to Tenant unless and until a copy
thereof shall have been so given to each such Leasehold Mortgagee. Each
Leasehold Mortgagee shall (A) thereupon have a period of 10 Business Days more
in the case of a default in the payment of Fixed Rent or Additional Charges
and 30 days more in the case of any other default which is capable of being
cured by the Leasehold Mortgagee, after notice of such default is given to
such Leasehold Mortgagee, for curing the default, causing the same to be cured
by Tenant or otherwise, or causing action to cure a default to be commenced,
than is given Tenant after such notice is given to it, and (B) within such
period and otherwise as herein provided, have the right to cure such default,
cause the same to be cured by Tenant or otherwise or cause an action to cure a
default to be commenced, and, subject to Section 43.03, Landlord shall not
have the right to terminate this lease under the provisions of Article 22 or
to reenter the Premises under the provisions of Article 23, or to otherwise
terminate this lease, reenter the Premises or exercise any other rights or
remedies under this lease by reason of a default by Tenant, until the cure
period has expired without a cure having been made; provided however that
nothing contained herein shall be deemed to impose upon any Leasehold
Mortgagee the obligation to perform any obligation of Tenant under this lease
or to remedy any default by Tenant hereunder. Landlord shall accept
performance by a Leasehold Mortgagee of any covenant, condition or agreement
on Tenant's part to be performed hereunder with the same force and effect as
though performed by Tenant. Notwithstanding anything to
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the contrary contained herein, no performance by or on behalf of a Leasehold
Mortgagee shall cause it to become a "mortgagee in possession" or otherwise
cause it to be deemed to be in possession of the Premises or bound by or
liable under this lease.
(b) Notwithstanding the provisions of Section 43.02(a)
Landlord shall not have the right to terminate this lease under the provisions
of Article 22 or to reenter the Premises under the provisions of Article 23,
or to otherwise terminate this lease, reenter the Premises or exercise any
other rights or remedies under this lease by reason of a default by Tenant, as
long as:
(i) a Leasehold Mortgagee, in good faith, shall have
commenced promptly to cure the default in question and prosecutes the
same to completion with reasonable diligence and continuity, subject
to Force Majeure Causes, which for purposes of this Section 43.02(b)
shall include causes beyond the control of such Leasehold Mortgagee
instead of causes beyond the control of Tenant, or
(ii) if possession of the Premises is required in order to
cure the default in question, a Leasehold Mortgagee, in good faith,
(A) shall have entered into possession of the Premises with the
permission of Tenant for such purpose or (B) shall have notified
Landlord of its intention to institute foreclosure proceedings to
obtain possession directly or through a receiver, and within thirty
(30) days of the giving of such notice commences such foreclosure
proceedings, and thereafter prosecutes such proceedings with
reasonable diligence and continuity (subject to Force Majeure
Causes) or receives an assignment of this lease in lieu of
foreclosure from Tenant, and, upon obtaining possession pursuant to
clause (A) or clause (B) above, commences promptly to cure the
default in question and prosecutes the same to completion with
reasonable diligence and continuity (subject to Force Majeure
Causes), or
(iii) if the Leasehold Mortgagee is the holder of the
Leasehold Mortgage in question by collateral assignment and the
foreclosure of its collateral assignment is required in order to act
under clause (i) or clause (ii) above, a Leasehold Mortgagee, in
good faith, shall have notified Landlord of its intention to
institute proceedings to foreclose such collateral assignment and
within thirty (30) days of the giving of such notice commences such
foreclosure proceedings, and thereafter prosecutes such proceedings
with reasonable diligence and continuity (subject to Force Majeure
Causes) or receives a direct and absolute assignment from the
assignor under the collateral assignment of its interest in such
mortgage, in lieu of foreclosure, and upon the completion of such
foreclosure or the obtaining of such assignment commences promptly
to act under clause (i) or clause (ii) above, or
(iv) a Leasehold Mortgagee, in good faith, shall have
proceeded pursuant to clause (ii) or clause (iii) above and during
the period such
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Leasehold Mortgagee is proceeding pursuant to clause (ii) or clause
(iii) above, such default is cured;
provided, that the Leasehold Mortgagee shall have delivered to Landlord its
written agreement to take the action described in clause (i), clause (ii) or
clause (iii) above and, subject to the provisions of Section 43.02(d), shall
have assumed the obligation to cure the default in question and that during
the period in which such action is being taken (and any foreclosure
proceedings are pending), all of the other obligations of Tenant under this
lease, to the extent they are susceptible of being performed by the Leasehold
Mortgagee, including the payment of Fixed Rent and Additional Charges, are
being duly performed within any applicable grace periods. Notwithstanding the
foregoing, at any time after the delivery of the aforementioned agreement, the
Leasehold Mortgagee may notify Landlord, in writing, that it has relinquished
possession of the Premises or that it will not institute foreclosure
proceedings or, if such proceedings have been commenced, that it has
discontinued them, and in such event, the Leasehold Mortgagee shall have no
further liability under such agreement from and after the date it delivers
such notice to Landlord (except for any obligations assumed by the Leasehold
Mortgagee and accruing prior to the date it delivers such notice) and
thereupon, Landlord shall give notice thereof to the next Leasehold Mortgagee
entitled to such notice under Section 43.03(e). Unless such default has been
cured or Tenant's time period to cure under Section 22.02 has not expired as
of the date that is ten (10) days after the giving of such notice to such
other Leasehold Mortgagee, Landlord shall thereafter have the unrestricted
right, subject to and in accordance with all of the terms and provisions of
this lease, to terminate this lease and to take any other action it deems
appropriate by reason of any default by Tenant, and upon any such termination
the provisions of Section 43.03 shall apply. For all purposes of this lease,
the term "foreclosure proceedings" shall include, in addition to proceedings
to foreclose a mortgage, where applicable, any foreclosure or similar
proceedings commenced by a collateral assignee thereof with respect to its
collateral assignment.
(c) From and after the date upon which Landlord receives
notice of any mortgage by Tenant of its interest in this lease, Landlord and
Tenant shall not modify or amend this lease in any respect or cancel or
terminate this lease other than as provided herein without the prior written
consent of the Leasehold Mortgagee(s) specified in such notice.
(d) Notwithstanding anything contained in Section 43.02(b) or
elsewhere in this lease to the contrary, any default of Tenant under any
provision of this lease which would not be susceptible of being cured by the
Leasehold Mortgagee, even after completion of foreclosure proceedings or the
Leasehold Mortgagee otherwise acquiring title to Tenant's interest in this
lease, shall be treated as if it were a default for which "possession of the
Premises is required in order to cure" for purposes of clause (ii) of Section
43.02(b) and shall be automatically waived by Landlord upon the occurrence of
the events described in clause (ii) or clause (iii) of Section 43.02(b),
provided that during the pendency of such events all of the other obligations
of Tenant under this lease,
102
to the extent they are susceptible of being performed by the Leasehold
Mortgagee, including the payment of Fixed Rent and Additional Charges, are
being duly performed within any applicable grace periods. Notwithstanding
anything in Section 43.02(b) to the contrary, no Leasehold Mortgagee shall
have any obligation to cure any such default described above nor shall any
Leasehold Mortgagee be required to agree in writing to cure such default in
order to proceed under clause (ii) or clause (iii) of Section 43.02(b).
43.03. (a) In case of termination of this lease under the provisions
of Article 22 or otherwise, or a reentry into the Premises under the
provisions of Article 23 or otherwise, Landlord, subject to the provisions of
Section 43.03(e), shall give prompt notice thereof to each Leasehold Mortgagee
under a Leasehold Mortgage whose name and address shall have theretofore been
given to Landlord, which notice shall be given as provided in Section
43.02(a). Landlord, on written request of such Leasehold Mortgagee made any
time within fifteen (15) days after the giving of such notice by Landlord and
at such Leasehold Mortgagee's expense, shall execute and deliver within
fifteen (15) days thereafter a new lease of the Premises to the Leasehold
Mortgagee, or its nominee or designee, for the remainder of the term of this
lease, upon all the covenants, conditions, limitations and agreements herein
contained; provided that the Leasehold Mortgagee or its nominee or designee
shall (i) pay to Landlord, simultaneously with the delivery of such new lease,
all unpaid Fixed Rent and Additional Charges due under this lease up to and
including the date of the commencement of the term of such new lease and all
expenses including, without limitation, reasonable attorneys' fees and
disbursements and court costs, incurred by Landlord in connection with the
default by Tenant, the termination of this lease and the preparation of the
new lease, and (ii) deliver to Landlord a statement, in writing, acknowledging
that Landlord, by entering into a new lease with the Leasehold Mortgagee or
its nominee or designee, shall not have or be deemed to have waived any rights
or remedies with respect to defaults existing under this lease,
notwithstanding that any such defaults existed prior to the execution of the
new lease, and that the breached obligations which gave rise to the defaults
and which are susceptible of being cured by Leasehold Mortgagee or its nominee
or designee are also obligations under said new lease, but such statement
shall be subject to the proviso that the applicable grace periods, if any,
provided under the new lease for curing such obligations shall begin to run as
of the first day of the term of said new lease
(b) Any such new lease and the leasehold estate thereby
created shall, subject to the same conditions contained in this lease,
continue to maintain the same priority and protection as this lease with
regard to any mortgage or any other lien, charge or encumbrance whether or not
the same shall then be in existence (or if such new lease cannot, as a matter
of law, continue to maintain such priority and protection, Landlord shall not
terminate this lease on account of Tenant's default, and both Landlord and
Tenant shall cooperate with the Leasehold Mortgagee (and/or its nominee or
designee) to effectuate an assignment of this lease by Tenant to the Leasehold
Mortgagee (or its nominee or designee) such that the resulting lease between
Landlord and the Leasehold Mortgagee (or such nominee or designee) will
maintain such priority and
103
protection). Concurrently with the execution and delivery of such new lease,
Landlord shall assign to the tenant named therein all of its right, title and
interest in and to moneys, if any, then held by or payable to Landlord which
Tenant would have been entitled to receive but for the termination of this
lease or Landlord's exercise of its rights under Article 22 or 23.
(c) Upon the execution and delivery of a new lease under this
Section 43.03, all subleases of the Premises which have become direct leases
between Landlord and the sublessee thereunder pursuant to Section 7.07(b) or
pursuant to a Landlord's Non-Disturbance Agreement entered into by Landlord
with such sublessee shall thereupon be assigned and transferred by Landlord to
the tenant named in such new lease, and Landlord shall enter into Landlord's
Non-Disturbance Agreements with respect to any such subleases that became a
direct lease with Landlord pursuant to a pre-existing Landlord's
Non-Disturbance Agreement. Between the date of termination of this lease and
the earlier of (i) the date of execution and delivery of the new lease and
(ii) the date such Leasehold Mortgagee's option to request a new lease
pursuant to this Section 43.03 expires if such Leasehold Mortgagee does not
exercise such option, Landlord shall not enter into any new leases or
subleases of the Premises, cancel or modify any then existing subleases, or
accept any cancellation, termination or surrender thereof without the written
consent of the Leasehold Mortgagee.
(d) Notwithstanding anything contained in this Section 43.03
to the contrary, a Leasehold Mortgagee shall have no obligation to cure any
default by Tenant under any provision of this lease which is not susceptible
of being cured.
(e) If there is more than one Leasehold Mortgage, Landlord
shall recognize the Leasehold Mortgagee whose mortgage is senior in lien (or
any other Leasehold Mortgagee designated by the Leasehold Mortgagee whose
mortgage is senior in lien) as the Leasehold Mortgagee entitled to the rights
afforded by Section 43.02 and this Section 43.03 for so long as such Leasehold
Mortgagee shall be exercising its rights under this lease with respect thereto
with reasonable diligence, subject to Force Majeure Causes, and thereafter
Landlord shall give notice that such Leasehold Mortgagee has failed or ceased
to so exercise its rights to the Leasehold Mortgagee whose mortgage is next
most senior in lien (and so on with respect to each succeeding Leasehold
Mortgagee that is given such notice and either fails or ceases to so exercise
its rights), and then only such Leasehold Mortgagee whose mortgage is next
most senior in lien shall be recognized by Landlord, unless such Leasehold
Mortgagee has designated a Leasehold Mortgagee whose mortgage is junior in
lien to exercise such right. If the parties shall not agree on which Leasehold
Mortgage is prior in lien, such dispute shall be determined by a then current
certificate of title issued by a title insurance company licensed to do
business in the State of New York chosen by Landlord, and such determination
shall bind the parties.
104
(f) Notwithstanding anything to the contrary contained herein,
Landlord shall not commence an action for, nor require Tenant to pay damages
calculated in accordance with the provisions of paragraph (a) of Section 24.01
prior to the date upon which the rights of any Leasehold Mortgagee to cure
Tenant's default and to request and receive a new lease have expired.
43.04. (a) Notwithstanding anything to the contrary herein, any
foreclosure under any Leasehold Mortgage, or any exercise of rights or
remedies under or pursuant to any Leasehold Mortgage, including the
appointment of a receiver, shall not be deemed to violate this lease or, in
and of itself, entitle Landlord to exercise any rights or remedies.
Notwithstanding any other provision of this lease to the contrary, this lease
may be assigned (i) by Tenant to a Leasehold Mortgagee (or its nominee or
designee) at any time that Tenant is in default under this lease or under such
Leasehold Mortgage and (ii) by a Leasehold Mortgagee (or its nominee or
designee) at a foreclosure sale or by an assignment in lieu thereof, in either
case without the consent of Landlord, and the provisions of Article 7 shall be
inapplicable to any such assignment.
(b) In the event of any lawsuit, arbitration, appraisal or
other dispute resolution proceeding, or any proceeding relating to the
determination of rent or any component thereof, between Landlord and Tenant,
(i) Landlord shall notify each Leasehold Mortgagee of whom Landlord shall have
been given notice of the commencement thereof, which notice shall enclose
copies of all notices, papers, and other documents related to such proceeding
to the extent given or received by Landlord, and (ii) except to the extent
provided otherwise in the Leasehold Mortgage, each Leasehold Mortgagee shall
be entitled to participate in such proceeding. Such participation may, to the
extent so desired by the Leasehold Mortgagee, include (x) receiving copies of
all notices, demands, and other written communications and documents at the
same time they are served upon or delivered to Tenant, (y) filing any papers
contemplated or permitted by such proceedings, and (z) attending and
participating in all hearings, meetings, and other sessions or proceedings
relating to such dispute resolution.
(c) Any insurance policies required to be maintained by
Landlord under this lease shall name as additional insureds any Leasehold
Mortgagees whose name and address shall have theretofore been provided to
Landlord.
(d) Any assignment of subleases and/or the rents thereunder
(i.e., an assignment of rents and leases) given to a Leasehold Mortgagee
and/or any security interest in equipment or any other personal property given
to a Leasehold Mortgagee shall, for all purposes of this lease be deemed to be
"collateral to" a mortgage and made "in connection with" a mortgage,
notwithstanding that such assignment or security interest secures an
obligation to the Leasehold Mortgagee that is different from, or in addition
to, that secured by the mortgage held by such Leasehold Mortgagee.
105
(e) Tenant's making of a Leasehold Mortgage shall not be
deemed to constitute an assignment or transfer of this lease, nor shall any
Leasehold Mortgagee, as such, or in the exercise of its rights under this
lease, be deemed to be an assignee or transferee of this lease so as to
require such Leasehold Mortgagee, as such, to assume or otherwise be obligated
to perform any of Tenant's obligations hereunder except when, and then only
for so long as, such Leasehold Mortgagee has acquired ownership and possession
of Tenant's leasehold estate pursuant to a foreclosure or other exercise of
rights or remedies under its Leasehold Mortgage (as distinct from its rights
under this lease to cure defaults of Tenant hereunder). Notwithstanding
anything to the contrary contained in this lease, no Leasehold Mortgagee, or
any person acting for or on behalf of a Leasehold Mortgagee, or any person
acquiring Tenant's leasehold estate pursuant to any foreclosure or other
exercise of a Leasehold Mortgagee's rights under its Leasehold Mortgage, shall
have any liability under or with respect to this lease or a new lease except
during such period as such person is Tenant under this lease or a new lease.
Notwithstanding anything to the contrary herein, such person's liability shall
not in any event extend beyond its interest in this lease or a new lease and
shall terminate upon such person's assignment or abandonment of this lease or
the new lease.
(f) No Leasehold Mortgage shall affect or reduce any rights or
obligations of either party under this lease. All such rights and obligations
shall continue in full force and effect notwithstanding any Leasehold
Mortgage.
(g) There shall be no limitation whatsoever on the amount or
nature of any obligation secured by a Leasehold Mortgage, the purpose for
which the proceeds of any such financing may be applied, the nature or
character of any Leasehold Mortgagee, the subsequent assignment, transfer or
hypothecation of any Leasehold Mortgage, or the creation of participation or
syndication interests with respect to any Leasehold Mortgage.
(h) If any actual or prospective Leasehold Mortgagee requires
any modification(s) of this lease, then Landlord shall, at Tenant's or such
Leasehold Mortgagee's request and expense, promptly execute and deliver to
Tenant such instruments in recordable form effecting such modification(s) as
such actual or prospective Leasehold Mortgagee shall require, provided that
such modification(s) do not in any way alter the rent payable hereunder or the
term hereof, or adversely affect Landlord's rights or increase Landlord's
obligations hereunder to more than a de minimis extent.
(i) Landlord shall, at Tenant's request and expense,
acknowledge receipt of the name and address of any Leasehold Mortgagee (or
proposed Leasehold Mortgagee) and confirm to such party that such party is or
would be, upon closing of its loan, a Leasehold Mortgagee with all rights of a
Leasehold Mortgagee under this lease, which acknowledgment shall, if
requested, be in recordable form.
106
(j) Upon request by Tenant or by any existing or prospective
Leasehold Mortgagee, Landlord shall deliver to the requesting party such
documents and agreements as the requesting party shall reasonably request to
further effectuate the intentions of the parties with respect to Leasehold
Mortgages as set forth in this lease, including a separate written instrument
in recordable form signed and acknowledged by Landlord setting forth and
confirming, directly for the benefit of specified Leasehold Mortgagee(s), any
or all rights of Leasehold Mortgagees
(k) If a Leasehold Mortgagee's Leasehold Mortgage expressly
limits such Leasehold Mortgagee's exercise of any rights and protections
provided for in this lease, then as between Tenant and such Leasehold
Mortgagee the terms of such Leasehold Mortgage shall govern. A Leasehold
Mortgagee may, by notice to Landlord, temporarily or permanently waive any
specified rights of a Leasehold Mortgagee under this lease, and any such
waiver shall be effective in accordance with its terms, but any such waiver
shall not bind any subsequent Leasehold Mortgagee under a subsequent Leasehold
Mortgage unless Landlord has relied to its detriment upon the initial waiver.
Tenant's default as mortgagor under a Leasehold Mortgage shall not constitute
a default under this lease except to the extent that Tenant's actions or
failure to act in and of itself constitutes a breach of its obligations under
this lease.
ARTICLE 44
Right Of First Offer To Purchase
44.01. (a) If during the initial term of this lease, Landlord
desires to sell all or any portion of the Premises, whether in an asset
transaction or, in substance, as a transfer of ownership interests, directly
or indirectly, pertaining to the Premises, in a transaction intended to affect
interests in the Premises as distinguished from all or substantially all of
Landlord's and its affiliates' business interests, unless all or substantially
all of said interests relate primarily to Landlord's interest in the Premises
(in either case, herein called the "Offered Property"), subject to the
provisions of Section 44.03, Landlord shall give Tenant a notice (herein
called the "Offering Notice") offering to sell the Offered Property to Tenant
at the purchase price (the "Offer Price") and on the terms and conditions
contained therein. Within thirty (30) days after the Offering Notice is given
to Tenant (herein called the "Option Period"), Tenant shall elect, by notice
to Landlord, to either (i) purchase the Offered Property on the terms
contained in the Offering Notice (without any substantive change whatsoever)
or (ii) refuse to purchase the Offered Property as herein provided. Time shall
be of the essence with respect to Tenant's election, and any failure by Tenant
to notify Landlord of its election shall be deemed to be an election to
refuse, and a waiver of Tenant's right, to purchase the Offered Property in
response to such Offering Notice (but not a waiver of any other rights that
Tenant may have pursuant to this Article 44 in connection therewith). Landlord
shall not be permitted to revoke the Offering Notice during the Option Period,
but the Offering
107
Notice shall be deemed to be revoked during the Option Period if Landlord and
Tenant or its designee enter into a purchase agreement on terms different than
those contained in the Offering Notice. If Tenant desires to purchase the
Offered Property, Tenant and Landlord shall enter into a purchase agreement,
the form of which shall be negotiated in good faith by the parties and must
include the terms set forth in the Offering Notice and the Terms set forth in
Section 44.01(b) (the "Offer Contract"). The Offer Contract must be entered
into within thirty (30) days following the expiration of the Option Period. To
provide further assurances for the parties, at any time prior to the execution
of a contract with a third-party purchaser for a sale of ownership interests,
Landlord shall have the right to give a written notice to Tenant, requesting
that Tenant advise Landlord as to whether Tenant believes that such a sale
would constitute a sale of the Offered Property as contemplated by the first
sentence of this Section 44.01(a), and Tenant shall respond to any such
request of Landlord within ten (10) Business Days after receipt of same (time
being of the essence with respect to such response, and if Tenant fails to
respond to such request within said ten (10) Business Day period, such
contemplated sale of ownership interests shall not be deemed to constitute a
sale of the Offered Property as contemplated by the first sentence of this
Section 44.01(a)).
(b) Among other matters, the Offer Contract shall incorporate
the following ("Terms"):
(i) a closing date that is thirty (30) days following the
date of the Offer Contract;
(ii) the Offer Price shall be payable either solely in lawful
money of the United States or, if not payable in its entirety in
cash, then any other consideration must be of a type readily
obtainable by Tenant;
(iii) the deposit required to bind the Offer Contract shall
equal five percent (5%) of the Offer Price; and
(iv) that the seller will deliver the Offered Property to the
buyer on the proposed closing date free of any liens (other than the
lien of any first mortgage and other financing of Landlord's
interest in the Premises if such term was set forth as a requirement
of the buyer to assume in the Offering Notice, and any liens created
or arising from the acts of Tenant or its agents, or anyone claiming
by or through such parties).
44.02. (a) If Tenant shall refuse (or shall be deemed to have
refused) to purchase the Offered Property pursuant to this Article 44, then
Landlord may undertake to complete the transfer of the Offered Property to a
third party purchaser. Such transfer shall not be undertaken at a price which
is not "substantially the same" as the Offer Price. For purposes hereof,
"substantially the same" shall mean that the purchase price to be paid by the
prospective buyer shall be no less than ninety-five percent (95%) of the Offer
Price taking into account all material relevant economic
108
matters, including, without limitation, the payment of the purchase price in
its entirety in cash (subject to any assumption of any financing by buyer, if
any, in accordance with the parenthetical set forth in Section 44.01(b)(iv))
and a closing date of no more than thirty (30) days following the execution
and delivery of the subject contract of sale. If Landlord does not then
consummate the proposed transfer to the third party purchaser in accordance
with the foregoing within six (6) months after the date of Tenant's refusal or
deemed refusal to purchase, and if a sale of the Offered Property is desired
by Landlord after such period, Landlord must again offer the Offered Property
to Tenant pursuant to Section 44.01(a). In addition, if Tenant shall refuse
(or shall be deemed to have refused) to purchase the Offered Property pursuant
to this Article 44 and thereafter within such six (6) month period Landlord
desires to consummate a transaction in which the purchase price is not
substantially the same as the Offer Price (hereinafter called the "Lower
Price"), Landlord shall, prior to consummation of such transaction, deliver to
Tenant a notice specifying the terms of such transaction, and such notice
shall constitute an Offering Notice pursuant to which Landlord re-offers the
Offered Property to Tenant pursuant to Section 44.01(a) at the Lower Price and
otherwise on all the same terms set forth in said notice.
(b) If Tenant has refused or is deemed to have refused to
purchase the Offered Property, Landlord shall, not more than ten (10) Business
Days following a closing with a third party purchaser, deliver a notice to
Tenant together with a fully executed copy of the contract of sale (and all
amendments and exhibits thereto) and side letters and pertinent agreements,
with such third party purchaser and its affiliates. Tenant shall, in writing
and within five (5) Business Days after the delivery of such notice by
Landlord, confirm or dispute that a specified purchase price is substantially
the same as the Offer Price. Time shall be of the essence with respect to such
notice from Tenant to Landlord and any failure to notify Landlord within such
five (5) Business Day period shall be deemed for all purposes and as against
all parties as Tenant's agreement that the purchase price is substantially the
same as the Offer Price. If Landlord fails to comply with its obligations
pursuant to Section 44.02(a) or pursuant to this Section 44.02(b), Tenant may
pursue any and all legal (but not equitable) rights and remedies that it may
have in connection therewith.
44.03. Tenant's rights granted under this Article 44 shall not apply
to any Permitted Transfer.
44.04. Notwithstanding anything to the contrary in this Article 44,
any transfer of the Offered Property pursuant to this Article shall be subject
to this lease, any subleases and any defects created, arising or resulting
from any acts of Tenant or any assignee or subtenant of Tenant, and Landlord
shall make no representations, warranties or covenants concerning same to
Tenant or its assignee or subtenant.
44.05. Tenant shall keep confidential all information it receives
with respect to the Offered Property or contained in any Offering Notice or
any contract of
109
sale submitted hereunder (except that Tenant may disclose such information (i)
to such of its executive officers, employees and professional advisors as are
reasonably required in connection with the analysis of the Offered Property,
(ii) in connection with any arbitration or suit regarding same, and (iii) as
may be required by law), provided that Tenant's obligations pursuant to this
Section 44.05 shall terminate after closing of the purchase of the Offered
Property by Tenant (but otherwise Tenant's obligations pursuant to this
Section 44.05 shall survive).
44.06. Tenant agrees, at any time and from time to time after the
rights to Tenant under this Article 44 are no longer in effect as to any
particular transaction, as requested by Landlord with not less than ten (10)
Business Days' prior notice, to execute and deliver to Landlord a statement
certifying that the rights granted to Tenant under this Article 44 are no
longer in effect, it being intended that any such statement delivered pursuant
hereto shall be deemed a representation and warranty to be relied upon by
Landlord and others with whom Landlord may be dealing, regardless of
independent investigation; provided, however, the reliance referred to herein
shall be limited to Tenant being estopped from contradicting any of the
statements made in such certificate.
44.07. The provisions of this Article 44 shall be null and void if
the Tenant under this Lease is no longer a Citibank Tenant.
[signature page follows]
110
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
this lease as of the day and year first above written.
RECKSON COURT SQUARE, LLC,
Landlord
By: Reckson Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Reckson Associates Realty Corp.,
a Maryland corporation, its general
partner
By: __________________________
Name:
Title:
CITIBANK, N.A., Tenant
By: __________________________
Name: Joseph W. Sprouls
Title: Vice President
Tenant's Federal Identification Number:
----------------------------
Schedule 1
----------
Lease Year Fixed Rent Per RSF Annual Fixed Rent
- -----------------------------------------------------------------------
Yr 1 $21.70 $30,415,371
Yr 2 $21.90 $30,689,109
Yr 3 $22.09 $30,965,311
Yr 4 $22.29 $31,243,999
Yr 5 $22.49 $31,525,195
Yr 6 $22.69 $31,808,922
Yr 7 $22.90 $32,095,202
Yr 8 $23.10 $32,384,059
Yr 9 $23.31 $32,675,516
Yr 10 $23.52 $32,969,595
Yr 11 $23.73 $33,266,322
Yr 12 $23.95 $33,565,718
Yr 13 $24.16 $33,867,810
Yr 14 $24.38 $34,172,620
Yr 15 $24.60 $34,480,174
Schedule 2
----------
Employee Job Title
-------- ---------
Marchewka,Teresa Cleaning Supervisor ( Local 32)
Abukar,Shueyb Bathroom Porter(32)-42fl to34th
Acosta,Gloria Cleaning Person(32)-12 fl&91/2
Acosta,Maria E. Cleaning Person(32)-35fl & 341/2
Barbosa,Lazaro Rotunda&Outside Porter(32)
Berdecia,Lisandra Cleaning Person(32)-50,61/2&Clevel
Bicic,Ismeta Day Matron-Bathroom Attendant
Bullock,Charles J. Bathroom Porter(32)-25fl to 17th
Castillo,Alexandra Cleaning Person(32)-49th & 47th fl
Contreras,Rafael Bathroom Porter(32)-33 to 25th fl
Chumbiauca,Nelly E. Cleaning Person(32)-15th & 311/2 fl
Coffey,Deborah Freight Elev.Operator(32)
Cuartas,Daira Cleaning Person(32)-20th&211/2fl
Delgado,Francisco Utility Porter(32)
Diaz,Obdulio Loading Dock Trash Porter(32)
Dusj,Paska Cleaning Person(32)-41fl & 421/2 fl
Dusta,Ljuljduraj Cleaning Person(32)-26th &251/2fl
Dyndor,Janina Cleaning Person(32)-40th &421/2 fl
Eley,Archie Bathroom Porter(32)-16th to 7th fl
Feliz,Luz Maria Cleaning Person(32)-33rd &311/2fl
Fernandez,Jose A. Lobby Marble Porter(32)
Frederique,Laurette Cleaning Person(32)-19th &211/2fl
Giraldo,Maria T. Cleaning Person(32)-44th &281/2fl
Grdoc,Minire Cleaning Person(32)-32nd &431/2fl
Karaduzovic,Fadila Cleaning Person(32)-30th & 341/2fl
Kearse,Richard S. Utility Porter(32)
Kohen,Nesim Utility Porter(32)
Maqellara,Shkumbim Bathroom Attendant(32)
Martinez,Carlos Cafeteria&Branch Bank Porter
Martinez,Carmen L. Cleaning Person(32)-10th&91/2 fl
Mocanu,Mitrita Cleaning Person(32)-23rd & 171/2fl
Montero,Carlos Tenant Porter(32)
Morales,Juan Bathroom Porter(32)-50fl to 42nd
Mrkulic,Nedzad J. Bathroom Porter(32)-L/R&H/R
Mrkulic,Sehrija Cleaning Person(32)-8th & 71/2fl
Osorio,Orlando J. Lobby&Elev.Cars Porter(32)
Quiroz,Luis Specialty Services Porter(32)
Rasim,Nezirovski Freight/Rubbish Operator(32)
Reci,Sabajdin Loading Dock Trash Porter(32)
Rickheeram,Mootiram Foreman
Rivas,Maria Cleaning Person(32)-48th & 46thfl
Rivas,Oscar Garbage Bins/Moving Boxes
Rodriguez,Altagracia Cleaning Person(32)-24th & 61/2fl
Rodriguez,Cristina Cleaning Person(32)-45th&431/2fl
Employee Job Title
-------- ---------
Rodriguez,Sylvia C. Cleaning Person(32)-18th&171/2fl
Rojas,Blanca I. Rojas,Blanca(32)-11th&141/2fl
Saljihi,Agron Working Foreman(32)
Salvador,Mario Tenant Porter(32)
Sanchez,Mirna E. Cleaning Person(32)-37th&381/2fl
Stojanovski,Branko Recycling
Sulejman,Islam Freight/Rubbish Operator(32)
Suriel,Francisca Cleaning Person(32)-36th&381/2fl
Tello,Augusto C. Lobby Attendant
Thomas,Monica W. Cleaning Person(32)-L/R5TH&4FL
Trejos,Luz Stella Cleaning Person(32)-22nd&71/2fl
Varghese,Elizabeth Cleaning Person(32)-16th&141/2fl
Veras,Jose Utility Porter(32)
Vukelj,Jasmina Cleaning Person(32)-29th&281/2fl
Walker,Darnley S. Outside Porter(32)
Wilson,Helen Day Matron-Bathroom Attendant
Zabrocka,Danuta Cleaning Person(32)-39th&Clevel
Zaorska,Barbara Cleaning Person(32)-27th&251/2fl
Varone,Frederick J. Chief Engineer
Vezza,Dom Assistant Chief Engineer
Marino,Louis John Engineer
Orlando,James Engineer
Vallone,Vito Engineer
Buckley,Thomas H. Engineer
Moore,John D. Engineer
Mazzone,Joseph V. Engineer
Chin,Kevin Engineer
McGee,John Patrick Engineer
Piro,Michael H. Engineer Helper
Woods,Christopher M. Engineer Helper
Suden,Kenneth Apprentice Engineer Helper
Osorio Jr.,Hugo Apprentice Engineer Helper
Mohamoud,Mohamed A. Engineer Helper
Lee,Harry Locksmith
2
Schedule 3
----------
Current Occupancy Agreements
EXHIBIT A
Legal Description
ALL THAT CERTAIN PLOT, PIECE, OR PARCEL OF LAND, SITUATE, LYING, AND BEING IN
THE BOROUGH AND COUNTY OF QUEENS, CITY AND STATE OF NEW YORK, BOUNDED AND
DESCRIBED AS FOLLOWS:
BEGINNING AT THE CORNER FORMED BY THE INTERSECTION OF THE NORTHWESTERLY SIDE
OF JACKSON AVENUE WITH THE WESTERLY SIDE OF COURT SQUARE;
RUNNING THENCE SOUTH 33 DEGREES 20 MINUTES 00 SECONDS WEST AND ALONG THE
NORTHWESTERLY SIDE OF JACKSON AVENUE, 220.449 FEET TO THE NORTHERLY SIDE OF
45TH AVENUE;
THENCE SOUTH 75 DEGREES 17 MINUTES 05.2 SECONDS WEST AND ALONG THE NORTHERLY
SIDE OF 45TH AVENUE, 286.083 FEET;
THENCE NORTHERLY AT RIGHT ANGLES TO THE NORTHERLY SIDE OF 45TH AVENUE, 25.003
FEET;
THENCE WESTERLY PARALLEL WITH THE NORTHERLY SIDE OF 45TH AVENUE, 90.027 FEET
TO THE EASTERLY SIDE OF 23RD STREET;
THENCE NORTH 14 DEGREES 42 MINUTES 54.8 SECONDS WEST AND ALONG THE EASTERLY
SIDE OF 23RD STREET, 75.011 FEET;
THENCE EASTERLY AT RIGHT ANGLES TO THE EASTERLY SIDE OF 23RD STREET, 115.013
FEET;
THENCE NORTHERLY AT RIGHT ANGLES TO THE LAST MENTIONED COURSE, 100.015 FEET TO
THE SOUTHERLY SIDE OF 44TH DRIVE;
THENCE NORTH 75 DEGREES 17 MINUTES 05.2 SECONDS EAST AND ALONG THE SOUTHERLY
SIDE OF 44TH DRIVE, 425.048 FEET TO THE CORNER FORMED BY THE INTERSECTION OF
THE SOUTHERLY SIDE OF 44TH DRIVE WITH THE WESTERLY SIDE OF COURT SQUARE;
RUNNING THENCE SOUTH 14 DEGREES 42 MINUTES 54.8 SECONDS EAST AND ALONG THE
WESTERLY SIDE OF COURT SQUARE 52.659 FEET TO THE CORNER FORMED BY THE
INTERSECTION OF THE NORTHWESTERLY SIDE OF JACKSON AVENUE WITH THE WESTERLY
SIDE OF COURT SQUARE, THE POINT OR PLACE OF BEGINNING.
FOR INFORMATION ONLY: BLOCK 79 LOT 30
A-1
EXHIBIT B
Not Used
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B-1
EXHIBIT C
---------
ONE COURT SQUARE
MAINTENANCE SCHEDULE
I. MAINTENANCE AND TESTING
o Annual black out simulation and functionality testing of the entire
emergency and standby power systems.
o Quarterly testing of the entire emergency and standby power systems by
placing all the automatic transfer switches in the test position.
o Preventive and predictive maintenance programs:
o Annual Thermal scanning.
o Emergency and standby generation maintenance.
o Switch gear and buss duct maintenance
o Vibration analysis
o Indoor air quality and domestic water sampling/testing
o Chiller maintenance
II. COMMON AREA CLEANING
1. Main Lobby
Daily:
o Empty lobby trash receptacles as needed, but not less than four times per
day.
o Periodically clean lobby glass and entrance glass of fingerprints and
smudges.
o Carpet sweep walk-off mats as needed.
o Spot clean chrome and bright work as needed.
o Place and / or pick up walk-off mats as weather conditions require.
Shampoo as required.
Nightly:
o Wet mop all flooring paying special attention to corners, edges, and
baseboard. Remove all scuffs and stains.
o Wipe clean and dust all visitor reception areas, including removal of
any trash. Clean and sanitize all telephones.
o Dust and clean lobby directory.
o Dust and clean all walls from floor to 72" above floor.
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o Clean and polish all metal doors and bucks, handrails, revolving doors and
drums of revolving doors, interior and exterior.
o Wipe clean and polish all planters.
o Wipe down and clean the security desk area and equipment.
o Remove all finger marks, dirt smudges, graffiti, etc., from all revolving
doors, frames, glass doors, partitions, windows, walls, elevator doors
and elevator jambs.
o Empty (clean and sanitize as needed) all waste receptacles. Remove
wastepaper and waste materials to designated area.
o Remove gum from walk-off mats and all other types of flooring.
o Vacuum all walk-off mats.
o Vacuum, clean and polish all floor saddles.
o Clean and sanitize all public telephones and surrounding area.
o Dust all flat surfaces including furniture.
o Place and / or pick up walk-off mats as weather conditions require.
Weekly:
o Dust all low reach areas including, but not limited to, chair rungs,
structural and furniture ledges, baseboards, window sills, door louvers,
moldings, etc.
o Dust all fire extinguishers cabinets or enclosures, enunciator panels and
pull stations.
o Sweep, mop and spray buff all hard flooring. Ensure a consistent finish
around edges and base.
o Wash and disinfect all waste receptacles.
Monthly:
o Dust all high reach areas including, but not limited to, tops of doors,
frames, pictures, lamps, light fixtures, window blinds, air diffusers and
return grills, ventilating louvers.
o Machine clean and polish all flooring. All flooring shall be maintained,
at the minimum, as a mid gloss finish at all times.
Quarterly:
o Clean all wall panels 72" and higher.
2. Elevators
Daily:
o Elevator cabs to be policed no less than four times per day. All floors are
to be swept and mopped or vacuumed as needed. o All metal finishes,
including all call buttons and indicators, shall be cleaned of all finger
marks and smudges not less than four times per day.
Nightly:
o Vacuum clean and polish all elevator saddles and tracks; if necessary,
sweep heavier debris with brush to remove.
C-2
o Sweep and mop all stone flooring in passenger elevators. Vacuum if
carpeted.
o Damp wipe panel walls, call buttons and indicators of elevator cabs to
remove any smudges or graffiti.
o Wipe down all metal finishes in cabs including, but not limited to, all
indicators, panels, and doors. Remove any foreign matter or debris from
light fixtures.
o Thoroughly clean freight elevator cabs including sweeping and mopping
floor, and damp wiping all walls and doors. When elevator cab is used for
hauling trash, the cab must be disinfected.
o Report any mechanical deficiencies or damage to the Agent.
Monthly:
o Machine clean and polish all flooring. All flooring shall be maintained,
at the minimum, as a mid gloss finish at all times. Shampoo if carpeted.
3. Stairwells
Weekly:
o Police all stairwells throughout the building and keep in clean condition
by sweeping or picking up trash and litter from the stairs / floors.
o Spot mop and sanitize stairs / floors immediately when made necessary by
sickness, spillage or as otherwise necessary to ensure personal safety.
o Damp wipe finger marks, smears, smudges and graffiti on stairway doors and
wall surfaces, hose racks and handrails. o Report any unauthorized equipment
or supplies to the Agent.
Monthly:
o Clean fire hoses, fire hose cabinets and similar equipment as needed, but
at least once per month.
o Wet mop landings, steps and treads. Wipe down railings.
4. Elevator Lobbies / Common Areas
Nightly:
o Sweep and damp mop uncarpeted areas.
o Vacuum all carpeted areas.
o Wipe clean all elevator call buttons and indicator lights.
o Damp wipe to remove all smudges, marks and fingerprints from walls and glass
entrance doors.
o Wipe clean all signage.
Weekly:
o Detail vacuum all carpeted areas.
o Dust all ventilation louvers.
C-3
o Sweep and mop all maintenance areas and basement corridors.
o Spot clean all wall finishes with clean damp cloth.
o Wipe with clean damp cloth all doors, doorframes, and high reach areas not
cleaned during nightly cleaning.
Monthly:
o Wipe clean all baseboards.
o Wipe clean and / or dust all ventilation louvers and light fixtures.
o Clean all wood doors with approved cleaning agent.
Quarterly:
o Basement corridors should be washed clean, from floor to ceiling, to remove
smudges, marks and stains.
5. Exterior Sidewalks and Plaza
Daily:
o Police and remove debris from planters as need but not less than four (4)
times daily.
o Using a hose, rinse all sidewalks and plaza area before 7:00 a.m. or as
requested by Agent (weather permitting).
o Use exterior vacuum and / or blower to clear grounds of all leaves and
debris before 8:00 a.m.
o Sweep sidewalks, curbs, and Plaza using a power vacuum (provided by
contractor) removing and / all foreign matter. Police throughout day but
not less than six (6) times per day.
Weekly:
o Remove gum from sidewalks.
o Remove graffiti as needed.
o Clean exterior facade from ground level to 8 feet.
6. Loading Dock and Receiving Area
Daily:
o Police the loading dock / receiving area, including all office areas, not
less than three (3) times per day.
o Sweep all areas to ensure a litter free area.
o Respond to all spills and emergencies as may be required.
o Remove debris from compactor area.
o Place all trash and recyclable trash in designated areas.
Nightly:
o Place all trash and recyclable trash in designated areas.
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o Keep loading dock area clear of rubbish and debris.
o Clean all office areas consistent with section "III. OFFICE AREAS" of the
general cleaning specification.
Weekly:
o Rinse and disinfect loading dock / receiving area.
7. Snow Removal
Contractor will be responsible for the removal of snow and ice from all
walkways, sidewalks and entrance stairs at all times; this will include
weekend and after hours snowfall. Contractor shall provide all snow removal
equipment, i.e. snow blowers, plows, shovels, etc.
o Snow / ice will be removed immediately as accumulations occur during the day
or night, including weekends.
o All sidewalk areas to be maintained completely clear of snow / ice, spread
snowmelt chemicals (approved by Agent) as conditions require throughout
the storm and after the storm as conditions warrant.
o Remove snow / ice from crosswalks for easy pedestrian access.
o Truck entrances and loading dock areas to be completely free of
snow / ice.
o All emergency exits must be clear of snow and ice.
o Sufficient personnel, as judged by Agent, shall be on site throughout the
duration of the storm and subsequent cleanup.
o At all times, maintain the facility in a "slip free" condition.
8. Roof Top / Set Backs
Monthly:
o Keep all areas free of debris, including spraying to control weeds.
9. Building Service Areas / Mechanical Space
Daily:
o Keep Cleaning / Maintenance Office, Engineering Office, and all
maintenance and security locker rooms, including locker room lavatories,
in a neat and orderly condition, consistent with that of the rest of the
building.
o All slop sinks and closets are to be kept neat and clean at all times.
Mops, rags and equipment are to be cleaned and stored in an orderly
fashion.
o Maintain an orderly arrangement of all janitorial supplies and equipment,
including all paper products.
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o Police all locker rooms and locker rooms lavatories throughout the day
consistent with that of the rest of the building.
Monthly:
o Sweep and / or clean all telephone, electrical, and mechanical closets
under the supervision of the Agent. o Provide periodic cleaning and
maintenance to all locker room lavatories consistent with that of the
rest of the building.
C-6
EXHIBIT D
Superior Mortgagee SNDA Agreement
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated the ____ day of __________, 200_ by and among
____________________ (hereinafter called "Mortgagee"),
___________________________, a ______________________, having an office at
_________________________________________ (hereinafter called "Landlord") and
Citibank, N.A., a national banking association, having an office at One Court
Square, Long Island City, New York 11120 (hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, Tenant has entered into a certain lease dated as of
the date hereof with Landlord (such lease, as same may be amended and restated
pursuant to the form of lease annexed thereto as Exhibit J, is hereinafter
called the "lease" or the "Lease"), covering the entire land and improvements
thereon commonly known as One Court Square and located in Long Island City,
New York, as more particularly described on Schedule A attached hereto; and
WHEREAS, Mortgagee has made a certain mortgage loan
(hereinafter called the "Mortgage") to the Landlord and the parties desire to
set forth their agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the sum of
One Dollar ($1.00) by each party in hand paid to the other, the receipt of
which is hereby acknowledged, it is hereby agreed as follows:
1. Subject to the terms and conditions hereof, the lease is and
shall be subject and subordinate in each and every respect to the lien of the
Mortgage insofar as it affects the real property of which the Premises form a
part, and to all renewals, modifications, consolidations, replacements and
extensions thereof, to the full extent of the principal sum secured thereby
and interest thereon.
2. Tenant agrees that after notice is given to Tenant by Mortgagee
it will attorn to and recognize Mortgagee, any purchaser at a foreclosure sale
under a Mortgage, and the successors and assigns of Mortgagee or any such
purchasers who acquires the premises demised (the "Premises") under the Lease
(any of such parties is herein referred to as an "Acquiring Party") in the
event of any suit, action or proceeding for the foreclosure of a Mortgage or
to enforce any rights thereunder, any judicial sale or execution or other sale
of the Premises or the giving of a deed in lieu of foreclosure of any default
under a Mortgage (each, an "Attornment Event"), as its landlord for the
unexpired balance (and any extensions, if exercised) of the term of the Lease
upon the
D-1
same terms and conditions set forth in the Lease and this Agreement.
Such attornment is to be effective as of the date that such Attornment Event
occurs, without the execution of any further agreement. However, Tenant and
the Acquiring Party agree to confirm the provisions of this Agreement in
writing upon the request of either party.
3. In the event that it should become necessary to foreclose a
Mortgage, Mortgagee thereunder or any Acquiring Party will not terminate the
Lease nor join Tenant in summary or foreclosure proceedings (unless Tenant is
a necessary party thereto under law), nor disturb the possession of Tenant,
nor diminish or interfere with Tenant's rights and privileges under the Lease
or any extensions or renewals of the Lease entered into pursuant to the Lease
or consented to by Mortgagee, as applicable, so long as Tenant is not in
default, after any applicable notice and grace period, under any of the terms,
covenants, or conditions of the Lease.
4. In the event that Mortgagee or an Acquiring Party shall succeed
to the interest of Landlord under the Lease (the date of such succession being
hereinafter called the "Succession Date"), so long as Tenant is not in
default, after any applicable notice and grace period, under any of the terms,
covenants, or conditions of the Lease, Mortgagee or the Acquiring Party, as
the case may be, shall not disturb the possession of Tenant and shall be bound
by all of Landlord's obligations under the Lease; provided that neither the
Mortgagee or Acquiring Party shall be:
(a) liable for any act or omission or negligence or failure or
default of any prior landlord (including Landlord) to comply with any of its
obligations under the Lease, except to the extent that (1) such act or
omission constitutes a default by landlord under the Lease and continues after
the Succession Date, and (2) Mortgagee's or Acquiring Party's liability is
limited to the effects of the continuation of such act or omission from and
after the Succession Date and shall not include any liability of any prior
landlord (including Landlord) which accrued prior to the Succession Date; or
(b) liable for the return of any security deposit, except to
the extent such security deposit shall have been paid over (or assigned, in
case of any letter of credit) to the Mortgagee or Acquiring Party; or
(c) subject to any counterclaims, offsets or defenses which
Tenant might have against any prior landlord (including Landlord) except to
the extent (1) that such counterclaims, offsets or defenses shall have accrued
in accordance with the terms of the Lease, including, without limitation, any
offsets with respect to Landlord Reimbursement Amounts (as defined in the
Lease) or (2) the basis for such counterclaims, offsets or defenses continue
to exist from and after the Succession Date; provided that Mortgagee receives
notice thereof in accordance with the Lease; or
(d) bound by any rent or additional rent which Tenant might
have paid for more than the current month to any prior landlord, including
Landlord, under the
D-2
Lease (other than customary prepayments of operating expense and real estate
tax and Landlord Reimbursement Amounts); or
(e) bound by any amendment or modification of the Lease made without
its consent, other than an amendment or modification entered into to confirm
the exercise of a specific right or option under the Lease in accordance with
all of the material terms of the Lease governing the exercise of such specific
right or option.
5. Tenant agrees to give the Mortgagee and/or Acquiring Party, a
copy of any notice of default served upon the Landlord by Tenant with respect
to a default which would entitle Tenant to terminate the Lease at such time as
such notice is served upon Landlord, provided that prior to such notice Tenant
has been notified, in writing (by way of Notice of Assignment of Rents and
Leases, or otherwise), of the address of the Mortgagee and/or Acquiring Party.
Tenant shall not so terminate the Lease (other than with respect to any Tenant
right to terminate the Lease under Article 19) unless such act or omission
shall not be remedied within thirty (30) days after the giving of such notice
to Mortgagee and/or Acquiring Party; provided, that if such act or omission
cannot with due diligence be remedied within a period of thirty (30) days, and
if Mortgagee and/or Acquiring Party commences the remedies necessary to cure
such act or omission within such thirty (30) days and thereafter prosecutes
such remedies with reasonable diligence, then the period of time after the
giving of such notice by Tenant within which such act or omission may be
remedied shall be extended so long as Mortgagee prosecutes the remedying of
such act or omission with reasonable diligence.
6. Mortgagee hereby consents to the Lease and, subject to the
provisions of Paragraph 4(e) hereof, all of the terms and conditions thereof,
and the terms of the Mortgage shall not affect such terms and conditions of
the Lease, including, but not limited to, the specific provisions of the Lease
governing assignments, subletting, alterations, repairs, contesting
requirements of law, contracting the size of the Premises and extending the
term of the Lease, as all such provisions are more particularly set forth in
the Lease.
7. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made hereunder
(hereinafter collectively called "notices") shall be in writing (whether or
not so stated elsewhere in this agreement) and shall be deemed to have been
properly given, rendered or made only if sent by (a) registered or certified
mail, return receipt requested, posted in a United States post office station
or letter box in the continental United States, (b) nationally recognized
overnight courier (e.g., Federal Express) with verification of delivery
requested or (c) personal delivery with verification of delivery requested, in
any of such cases addressed to the other party as follows:
If to Mortgagee:
D-3
with a copy to:
If to Landlord:
with a copy to:
If to Tenant:
with a copy to:
with an additional copy to:
and shall be deemed to have been given, rendered or made (i) if mailed, on the
second Business Day following the day so mailed, unless mailed to a location
outside of the State of New York, in which case it shall be deemed to have
been given, rendered or made on the third Business Day after the day so
mailed, (ii) if sent by nationally recognized overnight courier, on the first
Business Day following the day sent or (iii) if sent by personal delivery,
when delivered and receipted by the party to whom addressed (or on the date
that such receipt is refused, if applicable). Each party may designate a
change of address (or substitute parties for notice) by notice to the other,
given at least fifteen (15) days before such change of address or notice party
is to become effective.
8. The liability of Mortgagee for the performance of any obligation
of Landlord under the Lease shall be limited to Mortgagee's interest in the
Premises (which shall be deemed to include the proceeds of any insurance,
condemnation, sale or refinancing proceeds received by Mortgagee or an
Acquiring Party with respect to all or any portion of the Premises), and
Tenant hereby agrees that any monetary judgment it may obtain against
Mortgagee as a result of Mortgagee's failure, as Landlord, to perform any of
Landlord's obligations under the Lease shall be enforceable solely against
D-4
Mortgagee's interest in the Property. Notwithstanding the foregoing, Mortgagee
shall not, by virtue of the Mortgage, be or become a mortgagee-in-possession
or become subject to any liability or obligation under the Lease or otherwise
until Mortgagee shall have acquired the interest of Landlord in the Premises,
by foreclosure or otherwise.
9. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, and their successors and assigns.
D-5
IN WITNESS WHEREOF, the parties hereto have executed these presents
the day and year first above written.
MORTGAGEE:
By:___________________________
Name:
Title:
LANDLORD:
By: __________________________
Name:
Title:
TENANT:
By:___________________________
Name:
Title:
D-6
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of __________, 200_, before me, the
undersigned, a Notary Public in and for said State, personally appeared
____________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their/ capacity(ies), and that by, his/her/their
signature(s) on the instrument, the individuals) or the person upon behalf of
which the individuals acted, executed the instrument.
-----------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of __________, 200_, before me, the
undersigned, a Notary Public in and for said State, personally appeared
____________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their/ capacity(ies), and that by, his/her/their
signature(s) on the instrument, the individuals) or the person upon behalf of
which the individuals acted, executed the instrument.
-----------------
Notary Public
D-7
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of __________, 200_, before me, the
undersigned, a Notary Public in and for said State, personally appeared
____________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their/ capacity(ies), and that by, his/her/their
signature(s) on the instrument, the individuals) or the person upon behalf of
which the individuals acted, executed the instrument.
-----------------
Notary Public
D-8
SCHEDULE A
-----------
Description of Premises
D-9
EXHIBIT E
Not Used
--------
E-12
EXHIBIT F
Not Used
F-1
EXHIBIT G
Landlord's Non-Disturbance Agreement
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT made as of the ___ day of __________, 200_ by
and among __________________ (hereinafter called "Landlord"), ________________
(hereinafter called "Tenant"), and ________________ (hereinafter called
"Subtenant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Landlord is the landlord under that certain lease
dated as of ___________________, 2005 between Landlord, as lessor, and Tenant,
as lessee (hereinafter called the "Overlease"), covering the entire premises
(hereinafter called the "Demised Premises") in the building known as One Court
Square, Long Island City, New York (hereinafter called the "Building") on land
more particularly described in Exhibit A annexed hereto; and
WHEREAS, a portion of the Demised Premises comprised of
_______________ (hereinafter called the "Sublease Premises") has been
subleased to Subtenant pursuant to that certain sublease dated as of
____________, 20___ between Tenant, as sublessor, and Subtenant, as sublessee
(hereinafter called the "Sublease").
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration in hand paid, the parties hereto agree as
follows:
1. So long as Subtenant is not in default, after notice and the
lapse of any applicable grace period, in the performance of any terms,
covenants and conditions to be performed on its part under the Sublease, then
in such event:
(a) Unless any applicable law requires same, Subtenant shall
not be joined as a party defendant in any action or proceeding which may be
instituted or taken by the Landlord for the purpose of terminating the
Overlease by reason of any default thereunder;
(b) Subtenant shall not be evicted from the Sublease Premises
nor shall any of Subtenant's rights under the Sublease be affected in any way
by reason of any default under the Overlease, and
(c) Subtenant's leasehold estate under the Sublease shall not
be terminated or disturbed by reason of any default under the Overlease.
2. (a) If Landlord shall succeed to the rights of Tenant under the
Sublease by termination of the Overlease or the expiration of the term thereof
or
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otherwise, Landlord, as Subtenant's landlord under said Sublease, shall
accept Subtenant's attornment and Subtenant agrees to so attorn and recognize
Landlord as Subtenant's landlord under said Sublease without further
requirement for execution and delivery of any instrument to further evidence
the attornment set forth herein. Subtenant or Landlord will, each within ten
(10) business days after demand of the other, execute and deliver any
instrument that may reasonably be required to evidence such attornment.
(b) Subject to the provisions of subparagraph 2(c) below, upon
any such attornment and recognition, the Sublease shall continue in full force
and effect as, or as if it were, a direct lease between Landlord and Subtenant
upon all of the then executory terms, conditions and covenants as are set
forth in the Sublease (as the same incorporates by reference the Overlease,
notwithstanding the termination of the Overlease), and shall be applicable
after such attornment, provided, to the extent that Landlord has any rights
under the Overlease which are applicable to the Demised Premises and are in
addition to the rights of the lessor under the Sublease, such rights shall be
deemed incorporated into the Sublease, notwithstanding the termination of the
Overlease; and provided, further that Landlord shall not be (i) subject to any
credits, offsets, defenses or claims which Subtenant might have against
Tenant; nor (ii) bound by any rent which Subtenant might have paid for more
than the current month to Tenant (other than customary prepayments of Taxes
and Operating Expenses), unless such prepayment shall have been made with
Landlord's prior written consent; nor (iii) liable for any act or omission of
Tenant; nor (iv) bound by any covenant to undertake or complete any
improvement to the Sublease Premises or the Building; nor (v) be required to
account for any security deposit other than any security deposit actually
delivered to Landlord; nor (vi) liable for any payment to Subtenant of any
sums, or the granting to Subtenant of any credit, in the nature of a
contribution towards the cost of preparing, furnishing or moving into the
Sublease Premises or any portion thereof; nor (vii) bound by any amendment,
modification or surrender of the Sublease made without Landlord's prior
written consent, other than an amendment or modification entered into to
confirm the exercise of a specific right or option under the Sublease in
accordance with all of the material terms of the Sublease governing the
exercise of such specific right or option. Subtenant waives the provisions of
any statute or rule of law now or hereafter in effect that may give or purport
to give it any right or election to terminate or otherwise adversely affect
the Sublease or the obligations of Subtenant thereunder by reason of any
action or proceeding for the purpose of terminating the Overlease by reason of
any default thereunder.
(c) Notwithstanding anything to the contrary contained herein,
in the event that the rental rate set forth in the Sublease, on a per rentable
square foot basis (including fixed rent and additional rent on account of real
estate taxes, operating expenses and electricity), after taking into account
all rent concessions provided for in the Sublease, is less than the Minimum
Sublease Rent (as such term is defined in Section 7.09 of the Lease), the
Sublease shall be deemed to be automatically amended effective as of the date
of the aforementioned attornment and recognition so that from and after the
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date of such attornment and recognition, the rental rate payable under the
Sublease shall be increased to an amount that is equal to all of the same
economic terms and conditions (including fixed rent and additional rent on
account of real estate taxes, operating expenses and electricity) that would
have been applicable as between Landlord and Tenant under the Overlease with
respect to the Sublease Premises for the period commencing on such date of
attornment and ending on the expiration date of the such Sublease. Subtenant
or Landlord will, each within ten (10) business days after demand of the
other, execute and deliver an amendment to the Sublease, in form reasonably
satisfactory to Landlord and Subtenant, setting forth such increase in the
rental rate payable under the Sublease to the Lease Rent; provided, however,
that the absence of such written amendment shall not, in any event, affect the
automatic rental increase described herein.
3. The Sublease now is and shall remain subject and subordinate to
the Overlease and to any ground or underlying lease affecting the Demised
Premises and to all renewals and replacements, extensions, consolidations and
modifications thereof, and to all other matters to which the Overlease shall
be subordinate, subject to the terms and conditions of this Agreement.
4. This Agreement shall be binding upon and shall inure to the
benefit of the respective parties hereto, their successor and assigns.
5. This Agreement may not be modified except by an agreement in
writing signed by the parties or their respective successors in interest.
6. Any notice, statement, demand, consent, approval or other
communication (collectively, "notices") required or permitted to be given,
rendered or made pursuant to, under, or by virtue of this Agreement (or any
amendment to the Sublease made pursuant hereto) must be in writing and shall
be deemed to have been properly given, rendered or made only if sent by (a)
registered or certified mail, return receipt requested, posted in a United
States post office station or letter box in the continental United States, (b)
nationally recognized overnight courier (e.g., Federal Express) with
verification of delivery requested or (c) personal delivery with verification
of delivery requested, in any of such cases addressed to the party for whom
intended at its address set forth above. Notices shall be deemed to have been
given, rendered and made (i) if mailed, on the second Business Day following
the day so mailed, unless mailed to a location outside of the State of New
York, in which case it shall be deemed to have been given, rendered or made on
the third Business Day after the day so mailed, (ii) if sent by nationally
recognized overnight courier, on the first Business Day following the day sent
or (iii) if sent by personal delivery, when delivered and receipted by the
party to whom addressed (or on the date that such receipt is refused, if
applicable). Each party may designate a change of address (or substitute
parties for notice) by notice to the others, given at least fifteen (15) days
before such change of address or notice party is to become effective.
[Signatures follow]
G-3
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto.
LANDLORD:
_______________________________
By:____________________________
Name:
Title:
TENANT:
_______________________________
By:____________________________
Name:
Title:
SUBTENANT:
_______________________________
By:____________________________
Name:
Title:
G-4
EXHIBIT H
Not Used
H-1
EXHIBIT I
Form of Memorandum of Lease
MEMORANDUM OF LEASE
between
---------------------,
as Landlord
and
CITIBANK, N.A.,
as Tenant
Dated: As of May 12, 2005
Location of Premises
---------------------
Long Island City, County of Queens and State of New York
Address: One Court Square (25-01 Jackson Avenue)
Section:
Block: 79
Lot: 30
Record and Return to:
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
Attention: Dean A. Stiffle, Esq.
MEMORANDUM OF LEASE
Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Lease.
NAME AND ADDRESS OF LANDLORD: Reckson Court Square, LLC
c/o Reckson Associates Realty Corp.
1350 Avenue of the Americas, Suite 901
New York, New York 10019
NAME AND ADDRESS OF TENANT: Citibank, N.A.
One Court Square
25-01 Jackson Avenue
Long Island City, New York 11120
DATE OF LEASE: As of May 12, 2005
DESCRIPTION OF PREMISES: The Premises consist of the
land and improvements (the "Building")
thereon located One Court Square, Long
Island City, New York, such land being
more particularly described in Schedule
A attached hereto (the "Real Property").
COMMENCEMENT DATE OF INITIAL TERM: May 12, 2005
EXPIRATION DATE OF INITIAL TERM: May 11, 2020
RIGHT TO GRANT EASEMENTS Tenant has the right to grant certain
easements which burden the Real Property
as more particularly described in Article
33 of the Lease.
RENEWAL TERMS: The Lease contains five (5) five
(5) year extension options. The
extension options are more particularly
described in Article 36 of the Lease.
RIGHT TO GRANT LEASEHOLD MORTGAGES Tenant may subject its interest in the
Lease and the leasehold interest created
thereby may at any time and from time to
time be, directly or indirectly, to one
or more leasehold mortgages. The holders
of any such leasehold mortgages shall be
entitled to certain rights under the
Lease as more particularly set forth in
the Lease, including Article 43 thereof.
I-1
RIGHT OF FIRST OFFER TO PURCHASE: The Lease contains a right of first offer
to purchase the Premises or interests
therein, as more particularly described
in Article 44 of the Lease.
NAMING AND SIGNAGE RIGHTS: Tenant has the right to name the
Building, and Tenant has exclusive
rights with respect to signs, banners,
flags, monuments, kiosks and other means
of identification, as more particularly
described in Articles 16 of the Lease
ROOFTOP RIGHTS: Tenant has exclusive rights with respect
to the rooftop of the Building, as more
particularly described in Article 39 of
the Lease.
SURVIVING OBLIGATIONS: Landlord's obligations pursuant to
Section 3.05(a) of the lease with
survive the termination of the Lease
CONTRACTION RIGHTS: Tenant has the right to surrender
portions of the Premises, as
more particularly described in Article
4, upon which the Lease will be amended
and restated in the form annexed to the
Lease as Exhibit J.
This instrument is intended to be only a Memorandum of Lease, reference to
which is hereby made for all of the terms, conditions and covenants of the
parties. This instrument shall not be construed to modify, change, vary or
interpret said Lease or any of the terms, covenants or conditions thereof. In
all instances, reference to the Lease should be made for a full description of
the rights and obligations of the parties. The recordation of this Memorandum
is in lieu of, and with like effect as, the recordation of the Lease.
[signatures follow]
I-2
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Memorandum of Lease on the date hereinabove first set forth.
WITNESS: LANDLORD:
By: ______________________________
Print Name
By:___________________________
Name:
Title:
WITNESS: TENANT:
By: CITIBANK, N.A., a national
---------------------------------- banking association
Print Name
By:___________________________
Name:
Title:
I-3
State of New York
} SS:
County of New York
On the ____ day of ___________ in the year 2005 before me, the undersigned, a
Notary Public in and for said State, personally appeared ______________,
personally known to me or proved to me on the basis of satisfactory evidence
to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s) or the person upon behalf of which the
individual(s) acted, executed the instrument.
--------------------------
Notary Public
State of New York
} SS:
County of New York
On the ____ day of __________ in the year 2005 before me, the undersigned, a
Notary Public in and for said State, personally appeared ______________,
personally known to me or proved to me on the basis of satisfactory evidence
to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s) or the person upon behalf of which the
individual(s) acted, executed the instrument.
--------------------------
Notary Public
I-4
SCHEDULE A
Legal Description
-----------------
I-5
EXHIBIT J
Form of Restated and Amended Lease
[See attached]
J-1
EXHIBIT K
Not Used
K-1
EXHIBIT L
(See Attached Site Plan--Adjacent Parcel)
L-1
EXHIBIT M-1
Form of Tenant's Estoppel
ESTOPPEL CERTIFICATE
TO: ____________________
____________________
____________________
Attention: _________
Ladies/Gentlemen:
At the request of Landlord, and knowing that you are relying
on the accuracy of the information contained herein, the undersigned
("Tenant") hereby certifies to Landlord that as of the date hereof:
1. The undersigned is the tenant under that certain Lease
dated as of __________ by and between _______________________, a
_______________________ ("Landlord") and Tenant [**, as amended by
___________________ (describe lease and all amendments and modifications
thereto)**] (the "Lease"), covering the premises described therein (herein
referred to as the "Leased Premises") in the improvements situated in the he
building known as One Court Square, 25-01 Jackson Avenue in the Long Island
City, County of Queens and State of New York (the "Property"). A complete and
accurate copy of the Lease, including any and all modifications and amendments
thereto, is attached hereto as Exhibit A.
2. The Lease is in full force and effect. The Lease has not
been further modified, changed, altered, supplemented or amended in any
respect (in writing or orally) except as set forth in paragraph 1 above.
3. The term of the Lease commenced on _________ and shall
expire on __________, unless sooner terminated or extended in accordance with
the terms of the Lease.
4. Tenant has exercised the following options to extend the
term of the Lease (if none, please state "none"):
______________________________________, and Tenant has the following
unexercised options to extend the term of the Lease (if none, please state
"none"): ____________________________________________.
5. Tenant has exercised the following rights of first offer,
rights of first refusal and/or other expansion rights with respect to the
Property (if none, please state "none"):
__________________________________________________________.
M-1-1
6. Fixed Rent is paid through and including ____________ and
Tax Payments are paid through and including ____________. No Fixed Rent has
been paid more than 30 days in advance.
7. Tenant is not entitled to any rent concessions, rebates
or abatements, except (i) as specifically provided in the Lease, and (ii) as
indicated below (if none, please state "none"):
________________________________________________.
8. Tenant has no option or right to purchase the Leased
Premises or the Property, or any part thereof, or any interest therein other
than as set forth in Article 44 of the Lease.
9. Tenant has not sublet all or a portion of the Leased
Premises, except as indicated below (if none, please state "none"):
_________________________.
10. ***[Copies of invoices for any Landlord Reimbursement
Amounts heretofore billed to Landlord by Tenant are attached hereto as Exhibit
B.]***
11. As of the date hereof, Tenant, to its actual knowledge
("Actual Knowledge"; which is limited to the actual knowledge of ___________,
a [**Vice President,**] who is familiar with and involved in the day-to-day
operations of the Leased Premises), has no defense to its obligations under
the Lease and no charge, lien, claim or offset against Landlord under the
Lease or otherwise, against rents or other charges due or to become due under
the Lease except as indicated below (if none, please state "none"):
___________________________________________.
12. As of the date hereof, no notice in accordance with the
provisions of the Lease has been received by Tenant from Landlord of a default
by Tenant under the Lease which has not been cured, except as indicated below
(if none, please state "none"):
__________________________________________________________.
13. Tenant has not given Landlord any notice of a default on
the part of the Landlord under the Lease which has not been cured and, to
Tenant's Actual Knowledge, as of the date hereof, Landlord is not in default
in the performance of any of its obligations under the Lease [**or specify
each such default or event of which Tenant has knowledge**].
14. This certificate is delivered with the understanding
that Landlord, [**lender/purchaser and purchaser's lenders and prospective
lenders**], and their successors and/or assigns, may rely upon this
certificate.
M-1-2
The undersigned is duly authorized to execute this
certificate on behalf of Tenant.
TENANT:
--------------------
By: ________________________
Name:
Title:
Dated: ________, 20__
M-1-3
EXHIBIT M-2
Form of Landlord's Estoppel
ESTOPPEL CERTIFICATE
TO: ____________________
____________________
____________________
Attention: ___________
Ladies/Gentlemen:
At the request of Tenant, and knowing that you are relying
on the accuracy of the information contained herein, the undersigned
("Landlord") hereby certifies to Tenant that as of the date hereof:
1. The undersigned is the landlord under that certain Lease
dated as of ___________, by and between Landlord and Citibank, N.A., a
national banking association ("Tenant") [**as amended by ___________________
(describe lease and all amendments and modifications thereto)**] (the
"Lease"), covering the premises described therein (herein referred to as the
"Leased Premises") in the improvements situated in the building known as One
Court Square, 25-01 Jackson Avenue in Long Island City, County of Queens and
State of New York (the "Property"). A complete and accurate copy of the Lease,
including any and all modifications and amendments thereto, is attached hereto
as Exhibit A.
2. The Lease is in full force and effect. The Lease has not
been further modified, changed, altered, supplemented or amended in any
respect (in writing or orally) except as set forth in paragraph 1 above.
3. The term of the Lease commenced on ________ and shall
expire on _________, unless sooner terminated or extended in accordance with
the terms of the Lease.
4. Fixed Rent is paid through and including
_________________.
5. Landlord Reimbursement Amounts in the amount of
$_________ are due and payable on ____________, 20__. Landlord is disputing
its obligation to pay Landlord Reimbursement Amounts in the amount of $_______
(if none, please state "none").
M-2-1
6. Tenant is not entitled to any rent concessions, rebates
or abatements, except (i) as specifically provided in the Lease, and (ii) as
indicated below (if none, please state "none"):
_______________________________________________
7. As of the date hereof, Landlord, to its actual knowledge
("Actual Knowledge"; which is limited to the actual knowledge of ___________,
a [**Vice President,**] who is familiar with and involved in the day-to-day
operations of the Leased Premises), has no defense to its obligations under
the Lease and no charge, lien, claim or offset against Tenant under the Lease
or otherwise, against any amounts due or to become due from Landlord to Tenant
under the Lease except as indicated below (if none, please state "none"):
___________________________________________.
8. As of the date hereof, no notice in accordance with the
provisions of the Lease has been received by Landlord from Tenant of a default
by Landlord under the Lease which has not been cured, except as indicated
below (if none, please state "none"):
__________________________________________________________.
9. Landlord has not given Tenant any notice of a default on
the part of the Tenant under the Lease which has not been cured and, to
Landlord's Actual Knowledge, as of the date hereof, Tenant is not in default
in the performance of any of its obligations under the Lease [**or specify
each such default or event of which Landlord has knowledge**].
10. This certificate is delivered with the understanding
that Tenant, [**lender/assignee and assignee's lenders and prospective
lenders**], and their successors and/or assigns may rely upon this
certificate.
The undersigned is duly authorized to execute this
certificate on behalf of Landlord.
LANDLORD:
--------------------
By: _____________________________
Name:
Title:
Dated: ________, 20__
M-2-2
LEASE
between
RECKSON COURT SQUARE, LLC
Landlord
and
CITIBANK, N.A,
Tenant
PREMISES:
One Court Square,
25-01 Jackson Avenue
Long Island City, New York 11120
Dated: as of May 12, 2005
ARTICLE 1 Term and Fixed Rent...............................................................1
ARTICLE 2 Delivery and Use of Premises......................................................5
ARTICLE 3 Taxes and Operating Expenses......................................................8
ARTICLE 4 Surrender Option.................................................................22
ARTICLE 5 Subordination....................................................................25
ARTICLE 6 Quiet Enjoyment..................................................................26
ARTICLE 7 Assignment, Subletting and Mortgaging............................................27
ARTICLE 8 Compliance with Laws.............................................................32
ARTICLE 9 Insurance........................................................................35
ARTICLE 10 Landlord Transfer Restrictions...................................................40
ARTICLE 11 Alterations......................................................................42
ARTICLE 12 Landlord's and Tenant's Property.................................................48
ARTICLE 13 Repairs and Maintenance..........................................................50
ARTICLE 14 Electricity......................................................................51
ARTICLE 15 Services.........................................................................51
ARTICLE 16 Access; Signage; Name of Building................................................52
ARTICLE 17 Notice of Occurrences............................................................53
ARTICLE 18 Non-Liability and Indemnification................................................53
ARTICLE 19 Damage or Destruction............................................................56
ARTICLE 20 Eminent Domain...................................................................59
ARTICLE 21 Surrender........................................................................62
ARTICLE 22 Conditions of Limitation.........................................................63
ARTICLE 23 Reentry by Landlord..............................................................66
ARTICLE 24 Damages..........................................................................67
ARTICLE 25 Affirmative Waivers..............................................................70
ARTICLE 26 No Waivers.......................................................................71
ARTICLE 27 Curing Tenant's Defaults.........................................................72
ARTICLE 28 Broker...........................................................................73
ARTICLE 29 Notices..........................................................................73
ARTICLE 30 Estoppel Certificates............................................................75
ARTICLE 31 Memorandum of Lease..............................................................75
TC-1
TABLE OF DEFINED TERMS
ARTICLE 32 No Representations by Landlord...................................................76
ARTICLE 33 Easements........................................................................76
ARTICLE 34 Holdover.........................................................................77
ARTICLE 35 Miscellaneous Provisions and Definitions.........................................78
ARTICLE 36 Extension Terms..................................................................86
ARTICLE 37 Arbitration......................................................................93
ARTICLE 38 Confidentiality; Press Releases..................................................95
ARTICLE 39 Rooftop; Tenant's Antenna and Other Equipment....................................96
ARTICLE 40 Back-Up Power System.............................................................97
ARTICLE 41 Benefits Cooperation.............................................................98
ARTICLE 42 Intentionally Omitted............................................................99
ARTICLE 43 Leasehold Mortgages..............................................................99
ARTICLE 44 Right Of First Offer To Purchase................................................107
TABLE OF SCHEDULES AND EXHIBITS
- -------------------------------
Schedule 1: Fixed Rent Schedule
Schedule 2: Employees
Schedule 3: Current Occupancy Agreements
Exhibit A: Legal Description
Exhibit B: Not Used
Exhibit C: Maintenance Schedule
Exhibit D: Superior Mortgagee SNDA Agreement
Exhibit E: Not Used
Exhibit F: Not Used
Exhibit G Landlord's Non-Disturbance Agreement
Exhibit H: Not Used
Exhibit I: Form of Memorandum of Lease
Exhibit J: Form of Restated and Amended Lease
Exhibit K: Not Used
Exhibit L: Site Plan (Adjacent Parcel)
Exhibit M-1: Form of Tenant's Estoppel
Exhibit M-2: Form of Landlord's Estoppel
TC-2
DT-4
NY55/444831.7
AAA.....................................................................................................78
Additional Charges.......................................................................................3
Adjacent Parcel.........................................................................................77
Adjustment Date.........................................................................................81
Affiliate...............................................................................................28
Alterations.............................................................................................42
Amended and Restated Lease..............................................................................23
and/or..................................................................................................82
Appeal Deadline.........................................................................................73
Arbitration Notice......................................................................................89
Audit Notice............................................................................................20
Audit Period............................................................................................20
Audit Representative....................................................................................21
Back-Up Power System....................................................................................98
Back-Up Power System Area...............................................................................98
Bankruptcy Code.........................................................................................64
Base Rate...............................................................................................82
Base Unit Elements......................................................................................57
Benefits................................................................................................99
Broker..................................................................................................73
Building.................................................................................................1
Building Systems........................................................................................57
Business Day............................................................................................81
Cables..................................................................................................77
Chillers................................................................................................97
Citibank Tenant.........................................................................................28
Commencement Date........................................................................................3
Comparable Buildings....................................................................................31
Concourse................................................................................................1
Confidential Information................................................................................96
control.................................................................................................28
Corporate Successor.....................................................................................28
CPI.....................................................................................................81
CPI Fraction............................................................................................81
CPI-AUC.................................................................................................81
Current Occupancy Agreements............................................................................27
Date of the Taking......................................................................................60
Deemed Common Areas.....................................................................................43
Diesel Generator........................................................................................97
Disaster Functions......................................................................................59
Dispute Period..........................................................................................20
Escalated Rent..........................................................................................89
ETS&F...................................................................................................23
Excluded Obligations....................................................................................30
Existing Agreements......................................................................................9
Expiration Date..........................................................................................3
Extended Item Cost......................................................................................18
Extended Item Dispute Notice............................................................................18
Extended Landlord Capital Item..........................................................................10
Extended Landlord Capital Item Notice...................................................................18
Extension Election Notice...............................................................................88
Extension Premises......................................................................................88
TC-1
TABLE OF DEFINED TERMS
Extension Term......................................................................................87, 88
Failing Party...........................................................................................94
Fifth Extension Term....................................................................................87
Fifth Five Year Option..................................................................................87
First Extension Term....................................................................................87
First Five Year Option..................................................................................87
First-Class Landlord Standard...........................................................................18
Fixed Rent...............................................................................................3
Force Majeure Causes....................................................................................80
Fourth Extension Term...................................................................................87
Fourth Five Year Option.................................................................................87
GAAP.....................................................................................................8
Generator Area..........................................................................................97
Hardening Alterations...................................................................................43
Hazardous Materials.....................................................................................83
herein..................................................................................................82
hereof..................................................................................................82
hereunder...............................................................................................82
holder of a mortgage....................................................................................81
Holdover Stub Amount....................................................................................78
Improvements Demolition Work............................................................................58
Improvements Restoration Work...........................................................................58
Initial Alterations Request.............................................................................42
Initiating Party........................................................................................91
Institutional Investor..................................................................................41
Insurance Cap...........................................................................................40
Insurance Election......................................................................................39
Insurance Notice........................................................................................39
Interest Rate...........................................................................................82
Land.....................................................................................................1
Landlord.............................................................................................1, 82
Landlord Compliance Capital Item.........................................................................8
Landlord Entity.........................................................................................41
Landlord Party..........................................................................................54
Landlord R&M Capital Item................................................................................8
Landlord Reimbursement Amounts...........................................................................8
Landlord Reimbursement Items.............................................................................8
Landlord Reimbursement Notice...........................................................................20
Landlord's Non-Disturbance Agreement....................................................................31
Landlord's Notice.......................................................................................89
Landlord's Submitted Value..............................................................................91
landlord's waiver.......................................................................................47
laws and requirements of any public authorities.........................................................81
lease....................................................................................................1
Leasehold Improvements..................................................................................57
Leasehold Mortgage......................................................................................99
Leasehold Mortgagee....................................................................................100
Legal Requirements......................................................................................81
Lobby....................................................................................................1
Lower Price............................................................................................109
Market Value Rent.......................................................................................93
Material Alteration.....................................................................................43
Mechanical Areas.........................................................................................2
DT-2
TABLE OF DEFINED TERMS
Minimum Sublease Rent...................................................................................32
mortgage................................................................................................81
mortgagee...............................................................................................81
Mortgagee................................................................................................1
Named Tenant............................................................................................28
Net Recurring Additional Charges.........................................................................9
Non-Capital Extended Landlord Items.....................................................................11
Non-Controlling Interest................................................................................41
Non-Material Alteration.................................................................................43
Non-Occupancy Lease......................................................................................9
notices.................................................................................................74
nsurance Quote..........................................................................................39
Offer Contract.........................................................................................108
Offer Price............................................................................................107
Offered Property.......................................................................................107
Offering Notice........................................................................................107
Office Floor.............................................................................................1
Office Floors............................................................................................1
Operating Expenses.......................................................................................9
Option 1................................................................................................89
Option 2................................................................................................89
Option One Extension Premises...........................................................................88
Option Period..........................................................................................107
Option Three Extension Premises.........................................................................88
Option Two Extension Premises...........................................................................88
Partial Premises........................................................................................48
Permitted Transfer......................................................................................41
person..................................................................................................82
Premises.................................................................................................1
Prohibited Uses..........................................................................................7
Qualifying Sublease.....................................................................................31
Rating Threshold........................................................................................39
Real Property............................................................................................9
Reassessment Event.......................................................................................9
REBNY Standard...........................................................................................3
recognition agreement...................................................................................47
Recorded Agreements.....................................................................................63
Records.................................................................................................20
Reimbursement Dispute Notice............................................................................20
Reimbursement Operating Expenses........................................................................10
Reimbursement Taxes.....................................................................................12
Rent Notice.............................................................................................88
Required Cert Proceeding................................................................................16
requirements of insurance bodies........................................................................82
Responding Party........................................................................................91
Response Notice.........................................................................................89
Revocation Notice.......................................................................................89
Revocation Period.......................................................................................89
Second Alterations Request..............................................................................42
Second Anniversary......................................................................................40
Second Extension Term...................................................................................87
Second Five Year Option.................................................................................87
Specialty Alterations...................................................................................49
DT-3
TABLE OF DEFINED TERMS
Sub-concourse............................................................................................1
Sublease Document.......................................................................................30
Submetering Cost........................................................................................24
Submetering Work........................................................................................24
substantially the same.................................................................................108
Subway Agreement.........................................................................................9
Succession Date..........................................................................................2
Superior Interests.....................................................................................100
Superior Mortgage.......................................................................................26
Superior Mortgagee......................................................................................26
Superior Mortgagee SNDA Agreement.......................................................................26
Surrender Date..........................................................................................22
Surrender Fee...........................................................................................25
Surrender Notice........................................................................................22
Surrender Notice Period.................................................................................22
Surrender Space.........................................................................................22
Tax Payment.............................................................................................15
Tax Year................................................................................................13
Taxes...................................................................................................12
Temporary Taking Period.................................................................................61
Tenant...............................................................................................1, 82
Tenant Compliance Capital Item..........................................................................13
Tenant Party............................................................................................54
Tenant R&M Capital Item.................................................................................14
Tenant's Collateral.....................................................................................47
Tenant's Property.......................................................................................50
Tenant's Submitted Value................................................................................91
Tenant-Funded Residual Cap Ex Amounts...................................................................14
Terms..................................................................................................108
Third Extension Term....................................................................................87
Third Five Year Option..................................................................................87
Transfer................................................................................................41
Trust Deed Holders.......................................................................................1
Unapplied Submetering Cost..............................................................................25
Undisputed Items........................................................................................21
untenantable............................................................................................59
UPS Area................................................................................................97
UPS Battery System......................................................................................97
Useful Life Estimate....................................................................................18
DT-4
Exhibit 10.3
EXECUTION VERSION
===============================================================================
TERM LOAN AGREEMENT
Dated as of May 12, 2005
among
RECKSON OPERATING PARTNERSHIP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
and
CITICORP NORTH AMERICA, INC.,
AS ADMINISTRATIVE AGENT
and
CITIGROUP GLOBAL MARKETS INC.,
AS LEAD ARRANGER AND SOLE BOOKRUNNER
===============================================================================
ARTICLE I. DEFINITIONS.......................................................................1
1.1. Certain Defined Terms.................................................................1
1.2. Computation of Time Periods..........................................................26
1.3. Accounting Terms.....................................................................26
1.4. Other Terms..........................................................................26
1.5. Rules of Interpretati................................................................26
ARTICLE II. AMOUNTS AND TERMS OF LOANS.......................................................27
2.1. Loans................................................................................27
2.2. Use of Proceeds of Loans.............................................................28
2.3. Term Loan Maturity Date..............................................................28
2.4. Authorized Agents....................................................................28
ARTICLE III. Intentionally Omitted............................................................28
ARTICLE IV. PAYMENTS AND PREPAYMENTS.........................................................29
4.1. Prepayments..........................................................................29
4.2. Payments.............................................................................30
4.3. Promise to Repay; Evidence of Indebtedness...........................................32
ARTICLE V. INTEREST AND FEES................................................................33
5.1. Interest on the Loans and other Obligations..........................................33
5.2. Special Provisions Governing Eurodollar Rate Loans...................................35
5.3. Fees.................................................................................38
ARTICLE VI. CONDITIONS TO LOANS..............................................................38
6.1. Conditions Precedent to the Loans....................................................38
ARTICLE VII. REPRESENTATIONS AND WARRANTIES...................................................40
7.1. Representations and Warranties of the Borrower.......................................40
ARTICLE VIII. REPORTING COVENANTS..............................................................47
8.1. Borrower Accounting Practices........................................................48
8.2. Financial Reports....................................................................48
8.3. Events of Default....................................................................50
8.4. Lawsuits.............................................................................50
8.5. Intentionally Omitted................................................................51
8.6. ERISA Notices........................................................................51
8.7. Environmental Notices................................................................53
8.8. Labor Matters........................................................................53
8.9. Notices of Asset Sales and/or Acquisitions...........................................53
8.10. Notices of Joint Ventures............................................................54
8.11. Tenant Notifications.................................................................54
8.12. Other Reports........................................................................54
8.13. Other Information....................................................................55
ARTICLE IX. AFFIRMATIVE COVENANTS............................................................55
9.1. Existence. Etc.......................................................................55
9.2. Powers; Conduct of Business..........................................................55
9.3. Compliance with Laws. Etc............................................................55
9.4. Payment of Taxes and Claims..........................................................55
9.5. Insurance............................................................................56
9.6. Inspection of Property, Books and Records Discussions................................56
9.7. ERISA Compliance.....................................................................56
9.8. Maintenance of Property..............................................................56
9.9. Company Status.......................................................................57
9.10. Ownership of Projects, Joint Ventures and Property...................................57
9.11. Intentionally Omitted................................................................57
9.12. Additional Guarantors; Solvency of Guarantors........................................57
9.13. Further Assurances...................................................................57
9.14. Distributions in the Ordinary Course.................................................58
ARTICLE X. NEGATIVE COVENANTS...............................................................58
10.1. Intentionally Omitted................................................................58
10.2. Liens................................................................................58
10.3. Intentionally Omitted................................................................58
10.4. Conduct of Business..................................................................58
10.5. Transactions with Partners and Affiliates............................................58
10.6. Restriction on Fundamental Changes...................................................59
10.7. Margin Regulations; Securities Laws..................................................59
10.8. ERISA................................................................................59
10.9. Organizational Documents.............................................................60
10.10. Fiscal Year..........................................................................60
-ii-
10.11. Financial Covenants..................................................................60
10.12. Negative Covenants with respect to the Company.......................................61
ARTICLE XI. EVENTS OF DEFAULT; RIGHTS AND REMEDIES...........................................62
11.1. Events of Default....................................................................62
11.2. Rights and Remedies..................................................................65
ARTICLE XII. THE AGENTS.......................................................................66
12.1. Appointment..........................................................................66
12.2. Nature of Duties.....................................................................66
12.3. Right to Request Instructions........................................................67
12.4. Reliance.............................................................................67
12.5. Indemnification......................................................................67
12.6. Agents Individually..................................................................67
12.7. Successor Agents.....................................................................68
12.8. Relations Among the Lenders..........................................................68
12.9. Standard of Care.....................................................................68
ARTICLE XIII. YIELD PROTECTION.................................................................69
13.1. Taxes................................................................................69
13.2. Increased Capital....................................................................71
13.3. Changes; Legal Restrictions..........................................................71
13.4. Replacement of Certain Lenders.......................................................72
13.5. Mitigation...........................................................................72
ARTICLE XIV. MISCELLANEOUS....................................................................72
14.1. Assignments and Participations.......................................................72
14.2. Expenses.............................................................................74
14.3. Indemnity............................................................................75
14.4. Change in Accounting Principles......................................................75
14.5. Intentionally Omitted................................................................76
14.6. Ratable Sharing......................................................................76
14.7. Amendments and Waivers...............................................................76
14.8. Notices..............................................................................78
14.9. Survival of Warranties and Agreements................................................78
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative................................79
-iii-
14.11. Payments Set Aside...................................................................79
14.12. Severability.........................................................................79
14.13. Headings.............................................................................79
14.14. Governing Law........................................................................79
14.15. Limitation of Liability..............................................................79
14.16. Successors and Assigns...............................................................79
14.17. Certain Consents and Waivers of the Borrower.........................................80
14.18. Counterparts; Effectiveness; Inconsistencies.........................................81
14.19. Limitation on Agreements.............................................................81
14.20. Disclaimers..........................................................................81
14.21. Entire Agreement.....................................................................81
14.22. Confidentiality......................................................................81
14.23. Intentionally Omitted................................................................82
14.24. USA Patriot Act......................................................................82
-iv-
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Note
Exhibit C Form of Notice of Borrowing
Exhibit D Form of Notice of Conversion /Continuation
Exhibit E List of Closing Documents
Exhibit F Form of Compliance Certificate to Accompany Reports
Exhibit G Sample of Calculations of Financial Covenants
Exhibit H Form of Guaranty
Schedule EEP Eligible Encumbered Properties
Schedule EG Eligible Ground Lease
Schedule LC Lenders' Commitments and Notice Addresses
Schedule 1.1.1 Existing Permitted Liens
Schedule 1.1.2 Permitted Securities Options
Schedule 7.1-A Organizational Documents
Schedule 7.1-C Corporate Structure; Outstanding Capital Stock and
Partnership Interests; Partnership Agreement
Schedule 7.1-H Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I Pending Actions
Schedule 7.1-P Environmental Matters
Schedule 7.1-Q ERISA Matters
Schedule 7.1-R Securities Activities
Schedule 7.1-T Insurance Policies
-v-
TERM LOAN AGREEMENT
This Term Loan Agreement, dated as of May 12, 2005 (as amended,
supplemented or modified from time to time, the "Agreement"), is entered into
among RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("Reckson"), the institutions from time to time a party hereto as Lenders,
whether by execution of this Agreement or an Assignment and Acceptance,
CITICORP NORTH AMERICA, INC., as Administrative Agent, and CITIGROUP GLOBAL
MARKETS INC. as Lead Arranger and Sole Bookrunner.
RECITALS
WHEREAS, Reckson desires that the Administrative Agent and the Lenders
party hereto provide a term loan facility in an aggregate amount of
$470,000,000; and
WHEREAS, the Administrative Agent and the other Lenders party hereto
have agreed to make the requested term loan facility available to Reckson in
accordance with the terms and provisions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. The following terms used in this
Agreement shall have the following meanings, applicable both to the singular
and the plural forms of the terms defined:
"Acquisition" means that certain purchase by Reckson Court Square,
LLC, of One Court Square, Long Island City, New York from Citibank, N.A.
pursuant to that certain Purchase and Sale Agreement, dated as of May 4, 2005,
by and between Citibank, N.A., as seller, and Reckson Court Square, LLC, as
purchaser.
"Adjusted Unencumbered NOI" means, for the prior calendar quarter,
the sum of (i) NOI from the Consolidated Businesses attributable to
Unencumbered Projects and Unencumbered New York City Assets which are
wholly-owned or ground-leased by a Consolidated Business; plus (ii) the
Borrower's pro rata share of NOI from Joint Ventures attributable to
Unencumbered Projects and Unencumbered New York City Assets in which the
Borrower's beneficial economic interest in such Joint Ventures is 51% or
greater, provided the sale or financing of any Property owned or ground-leased
by such Joint Venture is substantially controlled by the Borrower, subject to
customary provisions set forth in the organizational documents of such Joint
Venture with respect to financings, sales or rights of first refusal granted
to other members of such Joint Venture; plus (iii) the Borrower's pro rata
share of NOI from Joint Ventures attributable to Unencumbered Projects and
Unencumbered New York City Assets in which the Borrower's beneficial economic
interest is less than 51%, provided that a majority of the beneficial economic
interests in such Joint Ventures that is not owned by the Consolidated
Businesses is owned or controlled by Qualified Joint Venture Partners; plus
(iv) the Borrower's
pro rata share of Net Income attributable to other Unencumbered assets
including Performing Notes (exclusive of Investment Funds, land and
development, and service company income); plus (v) NOI from Eligible
Encumbered Properties; less (vi) the quotient of Capital Expenditure Coverage
Reserve Amounts for such period relating to such Unencumbered assets and
Eligible Encumbered Properties, divided by four (4);
provided, clause (ii) above shall not exceed twenty percent (20%) of Adjusted
Unencumbered NOI; clause (iii) above shall not exceed five percent (5%) of
Adjusted Unencumbered NOI; and clause (iv) above shall not exceed fifteen
percent (15%) of Adjusted Unencumbered NOI.
"Administrative Agent" means CNAI, in its capacity as administrative
agent for the Lenders.
"Affiliate", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to vote ten percent (10%) or more of the
equity Securities having voting power for the election of directors of such
Person or otherwise to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting equity
Securities or by contract or otherwise.
"Agents" means, together, CNAI in its capacity as Administrative
Agent, the Arranger, and each successor agent appointed pursuant to the terms
of Article XII of this Agreement.
"Agreement" has the meaning set forth in the preamble hereto.
"Applicable Lending Office" means, with respect to a particular
Lender, (i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Margin" means, with respect to each Loan, the respective
percentages per annum determined based on the range into which the Borrower's
Credit Rating then falls, in accordance with the following table. Any change
in the Borrower's Credit Rating causing it to move to a different range on the
table shall to the extent set forth below effect an immediate change in the
Applicable Margin. The Borrower shall notify the Administrative Agent in
writing promptly after becoming aware of any change in any of its Credit
Ratings. The Borrower shall maintain Credit Ratings from at least two (2)
Rating Agencies, one of which must be Moody's or S&P so long as such Persons
are in the business of providing debt ratings for the REIT industry; provided
that if the Borrower fails to maintain at least two Credit Ratings, the
Applicable Margin shall be based upon an S&P rating of less than BBB- in the
table below. In the event that the Borrower receives two (2) Credit Ratings
that are not equivalent, the Applicable Margin shall be determined by the
lower of such two (2) Credit Ratings, at least one of which shall be an
Investment Grade Rating. In the event the Borrower receives more than two (2)
Credit Ratings and such Credit Ratings are not equivalent, the Applicable
Margin shall be determined by the lower of the two highest ratings; provided
that each of said two (2) highest ratings shall be Investment Grade Ratings
and at least one of which shall be an Investment Grade Rating from S&P or
Moody's.
-2-
Range of Applicable
the Borrower's Applicable Margin for
Credit Rating Margin for Euro Base Rate
(S&P/Moody's Dollar Loans Loans
or other Ratings) (% per annum) (% per annum)
- ------------------------------ ---------------- -------------
A-/A3 or their equivalent or
higher 0.60 0
BBB+/Baa1 or their equivalent 0.625 0
BBB/Baa2 or their equivalent 0.70 0
BBB-/Baa3 or their equivalent 0.90 0
Below BBB-/Baa3 or their 1.20 0
equivalent or unrated
The Administrative Agent shall notify the Lenders in writing promptly after it
obtains knowledge of any change in the Borrower's Credit Rating which shall
effect a change in the Applicable Margin.
"Arranger" means Citigroup Global Markets Inc., appointed pursuant to
the terms of Article XII of this Agreement.
"Assignment and Acceptance" means an Assignment and Acceptance in
substantially the form of Exhibit A attached hereto and made a part hereof
(with blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 14.1.
"Authorized Financial Officer" means a chief executive officer,
president, chief financial officer, treasurer or other qualified senior
officer acceptable to the Administrative Agent.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at
all times be equal to the higher of:
(i) the rate of interest announced publicly by Citibank, N.A.
in New York, New York from time to time, as Citibank, N.A.'s prime
rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum
plus (B) the Federal Funds Rate in effect from time to time during
such period.
Any change in the Base Rate shall result in a corresponding change on the same
day in the rate of interest accruing from and after such day on the unpaid
balance of any Base Rate Loan.
"Base Rate Loan" means (i) a Loan which bears interest at a rate
determined by reference to the Base Rate and the Applicable Margin as provided
in Section 5.1(a), or (ii) an overdue amount which was a Base Rate Loan
immediately before it became due.
"Benefit Plan" means an employee benefit plan defined in Section 3(3)
of ERISA in respect of which the Borrower or any ERISA Affiliate (i) is, or
within the immediately preceding
-3-
six (6) years was, an "employer" as defined in Section 3(5) of ERISA or (ii)
has assumed or is otherwise subject to any liability.
"Borrower" means Reckson.
"Borrower Partnership Agreement" means the Reckson Partnership
Agreement as such agreement may be amended, restated, modified or supplemented
from time to time with the consent of the Agents or as permitted under Section
10.9.
"Borrowing" means a borrowing consisting of Loans of the same type
made, continued or converted on the same day.
"Budgeted Construction Cost" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of
or described as vacant buildings, but excluding TI Work and excluding work
prior to erection of the structure of the building) has commenced and is
proceeding to completion in the ordinary course but has not yet been completed
(as such completion shall be evidenced by a temporary or permanent certificate
of occupancy permitting use of such Property by the general public), the
aggregate full-budgeted costs of construction of such Improvements (including
land acquisition costs and other soft costs and TI Work relating to such
Property, in accordance with GAAP); provided that Budgeted Construction Cost
shall exclude build-to-suit Projects that are seventy-five percent (75%)
pre-leased or Projects which are less than seventy-five percent (75%)
pre-leased but have a pro-forma yield of ten percent (10%) or more, based upon
executed leases and the cost of acquisition plus the estimated cost to
complete the same, which estimated cost to complete shall be determined in a
manner reasonably acceptable to the Administrative Agent.
"Business Day" means a day, in the applicable local time, which is
not a Saturday or Sunday or a legal holiday and on which banks are not
required or permitted by law or other governmental action to close (i) in New
York, New York and (ii) in the case of Eurodollar Rate Loans, in London,
England.
"Capital Expenditure Valuation Reserve Amounts" means the sum of (a)
an amount per annum equal to $0.40 multiplied by the number of square feet for
office properties (other than New York City Assets) owned or ground leased,
directly or indirectly, by any of the Consolidated Businesses or Joint
Ventures; (b) an amount per annum equal to $0.15 multiplied by the number of
square feet for industrial properties owned or ground leased, directly or
indirectly, by any of the Consolidated Businesses or Joint Ventures; and (c)
an amount per annum equal to $0.50 multiplied by the number of square feet for
New York City Assets.
"Capital Expenditure Coverage Reserve Amounts" means the sum of (a)
an amount per annum equal to $1.25 multiplied by the number of square feet for
office properties (other than New York City Assets) owned or ground leased,
directly or indirectly, by any of the Consolidated Businesses or Joint
Ventures; (b) an amount per annum equal to $0.40 multiplied by the number of
square feet for industrial properties owned or ground leased, directly or
indirectly, by any of the Consolidated Businesses or Joint Ventures; and (c)
an amount per annum equal to $1.75 multiplied by the number of square feet for
New York City Assets.
"Capital Lease" means any lease of any property (whether real,
personal or mixed) by a Person as lessee which, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
-4-
"Capital Markets Transaction" means the issuance by the Company, the
Borrower or any of their respective Subsidiaries after the Closing Date of (a)
of debt securities (excluding mortgage financings or borrowings under the
Existing Revolving Credit Agreement or this Agreement) or (b) common or
preferred equity or equity equivalent securities, including partnership
interests, limited liability company interests and convertible securities
(however designated, and whether voting or non-voting, but excluding equity
not issued for the purpose of raising cash (including, but not limited to,
equity issued upon exercise of options or upon awards to company executives or
trustees, equity issued under any dividend reinvestment plan and equity
securities issued in private placements to a limited number of institutional
investors in connection with joint venture transactions)) issued in the public
or private capital markets pursuant to an underwriting or placement agreement
(or similar agreement performing the same function as an underwriting or
placement agreement).
"Capital Stock" means, with respect to any Person, any capital stock
of such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Cash and Cash Equivalents" means unrestricted (i) cash, (ii)
marketable direct obligations issued or unconditionally guaranteed by the
United States government and backed by the full faith and credit of the United
States government; and (iii) domestic and Eurodollar certificates of deposit
and time deposits, bankers' acceptances and floating rate certificates of
deposit issued by any commercial bank organized under the laws of the United
States, any state thereof, the District of Columbia, any foreign bank, or its
branches or agencies (fully protected against currency fluctuations), which,
at the time of acquisition, are rated A-1 (or better) by S&P or P-1 (or
better) by Moody's provided that the maturities of such Cash and Cash
Equivalents shall not exceed one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. ss.ss. 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidelines promulgated
thereunder.
"CNAI" means Citicorp North America, Inc.
"Claim" means any claim or demand, by any Person, of whatsoever kind
or nature for any alleged Liabilities and Costs, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil
statute, Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means May 12, 2005.
"Combined Equity Value" means Total Value, less Total Outstanding
Indebtedness.
"Commission" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"Company" means Reckson Associates Realty Corp., a Maryland
corporation.
"Compliance Certificate" has the meaning set forth in Section 8.2(b).
-5-
"Consolidated" means consolidated, in accordance with GAAP, but
excluding the effects of consolidation under Interpretation No. 46 of the
Financial Accounting Standards Board.
"Consolidated Businesses" means the Company, the Borrower, Reckson FS
Limited Partnership, Metropolitan, MOP and their wholly-owned Subsidiaries.
"Construction Asset Cost" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of
or described as vacant buildings, but excluding TI Work and excluding work
prior to erection of the structure of the building) has commenced and is
proceeding to completion in the ordinary course but has not yet been completed
(as such completion shall be evidenced by a temporary or permanent certificate
of occupancy permitting use of such Property by the general public), the
aggregate sums incurred and paid on the construction of such Improvements
(including land acquisition costs and other soft costs and TI Work relating to
such Property, in accordance with GAAP). Any such Property shall continue to
be valued (for financial covenant compliance purposes) at its Construction
Asset Cost until the end of four (4) consecutive quarters following such
completion (as such completion shall be evidenced by a temporary or permanent
certificate of occupancy permitting use of such Property by the general
public).
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos containing materials (in
any form or condition), polychlorinated biphenyls (PCBs), or any constituent
of any such substance or waste, and includes, but is not limited to, these
terms as defined in federal, state or local laws or regulations.
"Contingent Obligation" as to any Person means, without duplication,
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation
required to be disclosed in the footnotes to such Person's financial
statements in accordance with GAAP, which obligation guarantees partially or
in whole any non-recourse Indebtedness, lease, dividend or other obligation,
exclusive of contractual indemnities (including, without limitation, any
Non-Recourse Carve-Outs, any indemnity or price-adjustment provision relating
to the purchase or sale of securities or other assets) and guarantees of
non-monetary obligations (other than guarantees of completion) which have not
yet been called on or quantified, of such Person or of any other Person.
Notwithstanding the foregoing, any litigation required to be disclosed in the
footnotes to such Person's financial statements in accordance with GAAP shall
not be included as a "Contingent Obligation" unless the same shall have been
reserved for in accordance with GAAP. The amount of any Contingent Obligation
described in clause (ii) shall be deemed to be (a) with respect to a guaranty
of interest or interest and principal, or operating income guaranty, the sum
of all payments required to be made thereunder (which in the case of an
operating income guaranty shall be deemed to be equal to the debt service for
the note secured thereby), calculated at the interest rate applicable to such
Indebtedness, through (i) in the case of an interest or interest and principal
guaranty, the stated date of maturity of the obligation (and commencing on the
date interest could first be payable thereunder), or (ii) in the case of an
operating income guaranty, the date through which such guaranty will remain in
effect, and (b) with respect to all guarantees not covered by the preceding
clause (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such guaranty is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as recorded on the
balance sheet and on the footnotes to the most recent financial statements of
the Borrower required to be delivered pursuant hereto; provided that in no
event shall the amount
-6-
of Contingent Obligations with respect to any guaranties relating to a loan
exceed the principal amount of such loan. Notwithstanding anything contained
herein to the contrary, guarantees of completion shall not be deemed to be
Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion shall be deemed to
be a Contingent Obligation in an amount equal to any such claim. Subject to
the preceding sentence, (i) in the case of a joint and several guaranty given
by such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the Borrower), the amount of the guaranty
shall be deemed to be 100% thereof unless and only to the extent that (X) such
other Person has delivered Cash or Cash Equivalents to secure all or any part
of such Person's guaranteed obligations or (Y) such other Person holds an
Investment Grade Rating from either Moody's or S&P, and (ii) in the case of a
guaranty (whether or not joint and several) of an obligation otherwise
constituting Debt of such Person, the amount of such guaranty shall be deemed
to be only that amount in excess of the amount of the obligation constituting
Indebtedness of such Person. Notwithstanding anything contained herein to the
contrary, "Contingent Obligations" shall not be deemed to include guarantees
of loan commitments or of construction loans to the extent the same have not
been drawn.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by
which it or any of its properties is bound, or to which it or any of its
properties is subject.
"Credit Rating" means the ratings assigned by not less than two of
the Rating Agencies (at least one of which shall be S&P or Moody's) to the
Borrower's senior long-term unsecured indebtedness. The decision on which two,
or in certain cases three, Rating Agencies to use shall be made by the
Borrower so long as one of such Rating Agencies shall be Moody's or S&P.
"Customary Permitted Liens" means
(i) Liens (other than Environmental Liens and Liens in favor of
the PBGC) with respect to the payment of taxes, assessments or
governmental charges or levies in all cases which are not yet due or
which are being contested in good faith by appropriate proceedings in
accordance with Section 9.4, and with respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with GAAP;
(ii) statutory and common law Liens of landlords against any
Property of the Borrower or any of its Subsidiaries;
(iii) Liens against any Property of the Borrower or any of its
Subsidiaries in favor of suppliers, mechanics, carriers, materialmen,
warehousemen or workmen and other Liens against any Property of the
Borrower or any of its Subsidiaries imposed by law created in the
ordinary course of business for amounts which could not reasonably be
expected to result in a Material Adverse Effect;
(iv) Liens (other than any Lien in favor of the PBGC) incurred
or deposits made in the ordinary course of business in connection
with worker's compensation, unemployment insurance or other types of
social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed
money), surety, appeal and performance bonds; provided that (A) all
such Liens do not in
-7-
the aggregate materially detract from the value of the Borrower's or
such Subsidiary's assets or Property or materially impair the use
thereof in the operation of their respective businesses, and (B) all
Liens of attachment or judgment and Liens securing bonds to stay
judgments or in connection with appeals which do not secure at any
time an aggregate amount of recourse Indebtedness exceeding
$10,000,000;
(v) Liens against any Property of the Borrower or any
Subsidiary of the Borrower arising with respect to zoning
restrictions, easements, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges or encumbrances on the use of Real Property which do
not materially interfere with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries;
(vi) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower and its
Subsidiaries taken as a whole;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its
Subsidiaries at the time of acquisition thereof by the Borrower or
any such Subsidiary or within 180 days thereafter to secure
Indebtedness incurred to pay all or a portion of the purchase price
thereof, provided that the Lien encumbering the equipment or
machinery so acquired does not encumber any other asset of the
Borrower or such Subsidiary;
(viii) customary restrictions imposed by licensors of software
or trademarks on users thereof;
(ix) interests of licensees and sublicensees in any trademarks
or other intellectual property license or sublicense by the Borrower
or any of its Subsidiaries; and
(x) Environmental Liens less than $5,000,000, which are being
contested in good faith by appropriate proceedings.
"Designated Lender" has the meaning set forth in Section 13.4.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
"Domestic Lending Office" means, with respect to any Lender, such
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on Schedule LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Administrative Agent.
"Eligible Assignee" means (i) a Lender or a Lender Affiliate; (ii) a
commercial bank having total assets in excess of $5,000,000,000; (iii) the
central bank of any country which is a member of the organization for Economic
Cooperation and Development having total assets in excess of $10,000,000,000;
or (iv) a finance company or other financial institution reasonably acceptable
to the Administrative Agent, which is regularly engaged in making, purchasing
or
-8-
investing in loans and having total assets in excess of $1,000,000,000 or
is otherwise reasonably acceptable to the Administrative Agent.
"Eligible Cash 1031 Proceeds" means the cash proceeds held by a
"qualified intermediary" from the sale of Real Property, which proceeds are
intended to be used by such qualified intermediary to acquire one or more
"replacement properties" that are of "like-kind" to such Real Property in an
exchange that qualifies as a tax-free exchange under Section 1031 of the
Internal Revenue Code, and no portion of which proceeds the Borrower, the
Company or any Affiliate has the right to receive, pledge, borrow or otherwise
obtain the benefits of until such time as provided under the applicable
"exchange agreement" (as such terms in quotations are defined in Treasury
Regulations Section 1.1031(k)-1(g)(4) (the "Regulations")) or until such
exchange is terminated. Upon the cash proceeds no longer being held by such
qualified intermediary pursuant to the Regulations or otherwise no longer
qualifying under the Regulations for like-kind exchange treatment, such
proceeds shall cease being Eligible Cash 1031 Proceeds.
"Eligible Encumbered Properties" means the Projects and New York City
Assets listed on Schedule EEP, so long as (a) such Projects and New York City
Assets are owned or ground-leased by the Borrower or a Guarantor and would
otherwise satisfy the requirements of an Unencumbered Project or an
Unencumbered New York City Asset, except that such Project or New York City
Asset is subject to a lien which is not a Customary Permitted Lien, (b) the
Indebtedness secured by the Lien on such Project or New York City Asset that
exists on the Closing Date is not (x) amended or modified in any manner that
would increase the principal amount or postpone the maturity date thereof or
(y) refinanced or replaced with new Indebtedness having a principal amount
greater than or a maturity date later than the Indebtedness being refinanced
or replaced, (c) the Indebtedness secured by the Lien on such Project or New
York City Asset has not been accelerated, unless such acceleration is
rescinded and (d) no default or event of default under any mortgage or other
loan document relating to the Indebtedness secured by the Lien on such Project
or New York City Asset has occurred and is continuing, which default or event
of default then subjects such Indebtedness to acceleration or then permits
such Indebtedness to be accelerated under any such mortgage or other loan
document, unless such default or event of default is cured or waived.
"Eligible Ground Lease" means a ground lease that (a) has a minimum
remaining term of twenty-five (25) years, including tenant controlled options,
as of any date of determination, (b) has customary notice rights, default cure
rights, new lease rights in the event of bankruptcy of the tenant and other
customary provisions for the benefit of a leasehold mortgagee or has
equivalent protection for a leasehold permanent mortgagee by a subordination
to such leasehold permanent mortgagee of the landlord's fee interest, and (c)
is otherwise acceptable for non-recourse leasehold mortgage financing under
customary lending requirements. The Eligible Ground Leases as of the date of
this Agreement are listed on Schedule EG.
"Eligible Net Cash Proceeds" means all Net Cash Proceeds from any
Asset Sale that results in $50,000,000 or more of Net Cash Proceeds, other
than the Net Cash Proceeds from the proposed sale by the Borrower or its
Subsidiaries of Properties in Parsippany, New Jersey and Princeton, New Jersey
to Normandy Holdings, LLC.
"Environmental, Health or Safety Requirements of Law" means all
Requirements of Law derived from or relating to any federal, state or local
law, ordinance, rule, regulation, Permit, license or other binding
determination of any Governmental Authority relating to, imposing liability or
standards concerning, or otherwise addressing the environment, health and/or
safety,
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including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances
Control Act and OSHA, and public health codes, each as from time to time in
effect.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Act" means any applicable
Requirement of Law that conditions, restricts, prohibits or requires any
notification or disclosure triggered by the transfer, sale, lease or closure
of any Property or deed or title for any Property for environmental reasons,
including, but not limited to, any so-called "Environmental Cleanup
Responsibility Act" or "Responsible Property Transfer Act".
"Equipment" means equipment used in connection with the maintenance
of Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. ss.ss. 1000 et seq., any amendments thereto, any successor statutes,
and any regulations or guidelines promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414 (b)
of the Internal Revenue Code) as the Borrower; (ii) a partnership or other
trade or business (whether or not incorporated) which is under common control
(within the meaning of Section 414 (c) of the Internal Revenue Code) with the
Borrower; and (iii) a member of the same affiliated service group (within the
meaning of Section 414 (m) of the Internal Revenue Code) as the Borrower, any
corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"ERISA Termination Event" means (i) a Reportable Event with respect
to any Benefit Plan or Multiemployer Plan; (ii) the withdrawal of the Borrower
or any ERISA Affiliate from a Benefit Plan during a plan year in which the
Borrower or such ERISA Affiliate was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA or the cessation of operations which results in
the termination of employment of 20% of Benefit Plan participants who are
employees of the Borrower or any ERISA Affiliate; (iii) the imposition of an
obligation on the Borrower or any ERISA Affiliate under Section 4041 of ERISA
to provide affected parties written notice of intent to terminate a Benefit
Plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
institution by the PBGC of proceedings to terminate a Benefit Plan; (v) any
event or condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Benefit Plan; or (vi) the partial or complete withdrawal of the Borrower or
any ERISA Affiliate from a Multiemployer Plan.
"Eurodollar Affiliate" means, with respect to each Lender, the
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurodollar Affiliate" on Schedule LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender or such Lender Affiliate
as it may from time to time specify by written notice to the Borrower and the
Administrative Agent.
"Eurodollar Interest Period" has the meaning set forth in Section
5.2(b).
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"Eurodollar Interest Rate Determination Date" has the meaning set
forth in Section 5.2(c).
"Eurodollar Lending Office" means, with respect to any Lender, such
Lender's office (if any) specified as the "Eurodollar Lending Office" under
its name on Schedule LC hereto or as set forth in the Assignment and
Acceptance by which it became a Lender or such other office or offices of such
Lender as it may from time to time specify by written notice to the Borrower
and the Administrative Agent.
"Eurodollar Rate" means, for any Eurodollar Interest Period with
respect to any Eurodollar Rate Loan, an interest rate per annum equal to the
rate per annum obtained by multiplying (a) a rate per annum equal to the rate
for Dollar deposits with maturities comparable to such Eurodollar Interest
Period which appears on Telerate Page 3750 as of 11:00 a.m., London time, two
(2) Business Days prior to the commencement of such Eurodollar Interest
Period, provided, however, that if such rate does not appear on Telerate Page
3750, the "Eurodollar Rate" applicable to a particular Eurodollar Interest
Period shall mean a rate per annum equal to the rate at which Dollar deposits
in an amount approximately equal to the principal balance (or the portion
thereof which will bear interest at a rate determined by reference to the
Eurodollar Rate during the Eurodollar Interest Period to which such Eurodollar
Rate is applicable in accordance with the provisions hereof), and with
maturities comparable to the last day of the Eurodollar Interest Period with
respect to which such Eurodollar Rate is applicable, are offered in
immediately available funds in the London Interbank Market to the London
office of Citibank, N.A. by leading banks in the Eurodollar market at 11:00
a.m., London time, two (2) Business Days prior to the commencement of the
Eurodollar Interest Period to which such Eurodollar Rate is applicable, by (b)
a fraction (expressed as a decimal) the numerator of which shall be the number
one and the denominator of which shall be the number one minus the Eurodollar
Reserve Percentage for each day during such Eurodollar Interest Period.
"Eurodollar Rate Loan" means (i) a Loan which bears interest at a
rate determined by reference to the Eurodollar Rate and the Applicable Margin
for Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an overdue
amount which was a Eurodollar Rate Loan immediately before it became due.
"Eurodollar Reserve Percentage" means, for any day, that percentage
which is in effect on such day, as prescribed by the Federal Reserve Board for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York, New York with deposits
exceeding five billion Dollars in respect of "Eurocurrency Liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Eurodollar Rate Loans is determined or
any category of extensions of credit or other assets which includes loans by a
non United States office of any bank to United States residents).
"Event of Default" means any of the occurrences set forth in Section
11.1 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in Section 11.1.
"Existing Permitted Liens" means each of the Liens set forth on
Schedule 1.1.1.
"Existing Revolving Credit Agreement" means that certain Third
Amended and Restated Credit Agreement, dated as of August 6, 2004, among the
Borrower, the institutions from time to
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time a party thereto as Lenders, JPMorgan Chase Bank, as Administrative Agent,
Wells Fargo Bank, National Association, as Syndication Agent, Citicorp North
America, Inc., Wachovia Bank, National Association, and Deutsche Bank Trust
Company Americas, Inc., as Co-Documentation Agents, Keybank, National
Association, The Bank of New York, The Bank of Nova Scotia, ING Real Estate
Finance (USA) LLC, and PNC Bank, National Association, as Co-Agents, and J.P.
Morgan Securities Inc. and Citigroup Global Markets Inc., as Co-Lead Arrangers
and Joint Bookrunners.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day in New York, New York, for the
next preceding Business Day) in New York, New York by the Federal Reserve Bank
of New York, or if such rate is not so published for any day which is a
Business Day in New York, New York, the average of the quotations for such day
on such transactions by the Reference Bank, as determined by the
Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"FFO" means "funds from operations" as defined in accordance with
resolutions adopted by the Board of Governors of the National Association of
Real Estate Investment Trusts as in effect from time to time; provided that
FFO shall (i) be based on net income after payment of distributions to holders
of preferred partnership units in the Borrower and distributions necessary to
pay holders of preferred stock of the Company and (ii) at all times exclude
(a) charges for impairment losses from property sales and (b) non-recurring
charges.
"Financial Statements" means (i) quarterly and annual consolidated
statements of income and retained earnings, statements of cash flow, and
balance sheets, prepared in accordance with GAAP, consistently applied, and
(ii) such other financial statements of the Borrower, the Company and the
other Consolidated Businesses or Joint Ventures that the Company shall
routinely and regularly prepare and that the Arranger or the Requisite Lenders
may from time to time reasonably request.
"Fiscal Year" means the fiscal year of the Company and the Borrower
for accounting and tax purposes, which shall be the 12-month period ending on
December 31 of each calendar year.
"Fitch" means Fitch Ratings, a division of Fitch, Inc. or any
successor thereto.
"Fixed Charges" means, with respect to any fiscal period, the sum of
(a) Total Interest Expense, (b) the aggregate of all scheduled principal
payments on Total Outstanding Indebtedness according to GAAP made or required
to be made during such fiscal period for the Consolidated Businesses and Joint
Ventures (but excluding balloon payments of principal due upon the stated
maturity of an Indebtedness), provided that only the Consolidated Businesses'
pro rata share of the Joint Ventures' scheduled principal payments are to be
included, and (c) the aggregate of all dividends or distributions payable
(whether paid or accrued) on all preferred stock and other preferred
securities or preferential arrangements of the Consolidated Businesses,
including, without limitation, preferred distributions payable to holders of
preferred OP Units. As used herein, "OP Units" means limited partnership
interests in Reckson.
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"Funding Date" means the date on or after the Closing Date on which
all of the conditions described in Section 6.1 have been satisfied (or waived)
in a manner satisfactory to the Administrative Agent and the Lenders and on
which the Term Loans under this Agreement are made by the Lenders to the
Borrower.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general
use by significant segments of the accounting profession as in effect on the
Closing Date (unless otherwise specified herein as in effect on another date
or dates).
"General Partner" means the Company and any successor general
partner(s) of the Borrower.
"Governmental Approval" means all right, title and interest in any
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued by any Governmental Authority having jurisdiction with
respect to any Project. "Governmental Authority" means any nation or
government, any federal, state, local or other political subdivision thereof
and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guaranties" means, collectively, the Unconditional Guaranties of
Payment, made by each of the Company, Reckson FS Limited Partnership and the
other Guarantors for the benefit of the Lenders, in substantially the form of
Exhibit H hereto.
"Guarantors" means, collectively, the Company, Reckson FS Limited
Partnership, 360 Hamilton Plaza LLC, Metropolitan, MOP, 275 Broadhollow LLC,
1055 Washington Boulevard LLC, Reckson Court Square, LLC, Reckson 1 Giralda
LLC, Reckson 7 Giralda Owner LLC, Reckson 300 Broadhollow LLC, Reckson 1185
Avenue of the Americas LLC, Magnolia Associates, Ltd., and any other Affiliate
of the Borrower executing a Guaranty. Any Guarantor that is the owner or
ground lessor of an Unencumbered Project or Unencumbered New York City Asset
shall be a wholly-owned Subsidiary of the Borrower.
"Improvements" means all buildings, fixtures, structures, parking
areas, landscaping and all other improvements whether existing now or
hereafter constructed, together with all machinery and mechanical, electrical,
HVAC and plumbing systems presently located thereon and used in the operation
thereof, excluding (a) any such items owned by utility service providers, (b)
any such items owned by tenants or other third-parties unaffiliated with the
Borrower and (c) any items of personal property.
"Indebtedness", as applied to any Person, means, at any time, without
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or
evidenced by debt securities, debentures, acceptances, notes or other similar
instruments, and any accrued interest and fees relating thereto, (ii) under
profit payment agreements or in respect of obligations to redeem, repurchase
or exchange any Securities of such Person or to pay dividends in respect of
any preferred stock (but only to the extent that such Person shall be
contractually obligated to pay the same), (iii) with respect to letters of
credit, bankers' acceptances or similar facilities issued for such Person's
account or for which such
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Person otherwise has reimbursement obligations, (iv) to pay the deferred
purchase price of property or services, except accounts payable and accrued
expenses arising in the ordinary course of business, (v) in respect of Capital
Leases or so-called synthetic leases, (vi) which are Contingent Obligations or
(vii) under indemnities but only at such time as a claim shall have been made
thereunder; (b) all indebtedness, obligations or other liabilities of such
Person or others secured by a Lien on any property of such Person, whether or
not such indebtedness, obligations or liabilities are assumed by such Person,
all as of such time, but in a case of obligations of others not assumed by
such Person an amount not in excess of the value of such property; (c) all
indebtedness, obligations or other liabilities of such Person in respect of
interest rate contracts, derivatives contracts and foreign exchange contracts,
net of liabilities owed to such Person by the counterparties thereon; (d) all
preferred stock and preferred equity interests subject (upon the occurrence of
any contingency or otherwise) to mandatory redemption in cash by the holder of
such preferred stock or equity interest; (e) all preferred stock and preferred
equity interests in any Consolidated Business (other than the Company and the
Borrower) which has not provided a Guaranty of the Obligations; and (f) all
Contractual Obligations with respect to any of the foregoing.
"Indemnified Matters" has the meaning set forth in Section 14.3.
"Indemnitees" has the meaning set forth in Section 14.3.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidelines promulgated thereunder.
"Investment" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of
all or substantially all of the assets of a business conducted by another
Person, (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any
other Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business, and
(iv) any purchase or other acquisition by that Person of Real Property,
whether directly or indirectly. The amount of any Investment shall be the
original cost of such Investment (together with all capital improvement costs
thereafter paid or incurred with respect to such Investment in accordance with
GAAP), without any adjustments for increases or decreases in value or
write-ups, write-downs or write-offs with respect to such Investment.
"Investment Funds" means (i) Reckson Strategic Venture Partners LLC,
and (ii) a Person in which FrontLine Capital Group or a Subsidiary thereof is
a general partner or a managing member, in the case of a partnership or
limited liability company, and which, in the case of a corporation, has the
right to elect a majority of the board of directors.
"Investment Grade Rating" means a rating for a Person's senior
long-term unsecured debt of BBB- or better from S&P, and a rating of Baa3 or
better from Moody's or a rating equivalent to the foregoing from Fitch or
another Rating Agency.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
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"Joint Ventures" means any interests in partnerships, joint ventures,
limited liability companies, trusts, associations and corporations held or
owned directly or indirectly by the Borrower and/or the Company which are not
wholly-owned by the Borrower and/or the Company (other than Investment Funds
or any affiliated or unaffiliated operating company that the Borrower includes
under clause (vii) of the definition of Total Value, subject to the limitation
of $100,000,000 investments (valued at the lower of cost or market in
accordance with GAAP)).
"Joint Venture Unencumbered Value" means the portion of Total
Unencumbered Value from Joint Ventures attributable to Unencumbered Projects
and Unencumbered New York City Assets.
"knowledge" with reference to the Company, the Borrower or any
Subsidiary of any of them, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without
limitation, interviewing and questioning such other Persons as the Company,
the Borrower or such Subsidiary, as applicable, deems reasonably necessary).
"Land/Development Unencumbered Value" means the portion of Total
Unencumbered Value which is attributable to Unencumbered assets consisting of
land and Projects under development.
"Lease" means a lease, license, concession agreement or other
agreement providing for the use or occupancy of any portion of any Project,
including all amendments, supplements, modifications and assignments thereof
and all side letters or side agreements relating thereto.
"Lender" means each financial institution a signatory hereto as a
Lender as of the Closing Date and, at any other given time, each financial
institution which is a party hereto as Lender, whether as a signatory hereto
or pursuant to an Assignment and Acceptance.
"Lender Affiliate" means with respect to any Lender an Affiliate of
such Lender.
"Letter Agreement" means the letter agreement dated as of the date
hereof among the Borrower, the Administrative Agent and the Arranger.
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful
or wanton injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without limitation,
attorney, expert and consulting fees and costs of investigation, feasibility
or Remedial Action studies), fines, penalties and monetary sanctions,
interest, direct or indirect, known or unknown, absolute or contingent, past,
present or future.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security
interest, encumbrance, lien (statutory or other and including, without
limitation, any Environmental Lien), preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever in
respect of any property of a Person, whether granted voluntarily or imposed by
law, and includes the interest of a lessor under a Capital Lease or under any
financing lease having substantially the same economic effect as any of the
foregoing.
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"Limited Partners" means those Persons who from time to time are
limited partners of the Borrower; and "Limited Partner" means each of the
Limited Partners, individually.
"Loan" means a Term Loan made by a Lender pursuant to Section 2.1;
provided, that if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Conversion/Continuation, the term "Loan"
shall refer to the combined principal amount resulting from such combination
or to each of the separate principal amounts resulting from such subdivision,
as the case may be.
"Loan Account" has the meaning set forth in Section 4.3(b).
"Loan Documents" means this Agreement, the Notes and the Guaranties.
"Management Company" means, collectively (i) Reckson Management
Group, Inc., a Delaware corporation, RANY Management Group, Inc. and their
respective wholly-owned or controlled Subsidiaries and (ii) such other
property management companies controlled (directly or indirectly) by the
Company or the Borrower and which property management companies manage
properties owned by the Company, the Borrower and its Subsidiaries and for
which the Borrower has previously provided the Administrative Agent with: (1)
notice of such property management company, (2) evidence reasonably
satisfactory to the Administrative Agent that such property management company
is controlled (directly or indirectly) by the Company or the Borrower, and (3)
evidence reasonably satisfactory to the Administrative Agent that such
property management company manages properties owned, in whole or in part by
the Company or the Borrower or its Subsidiaries.
"Margin Stock" means "margin stock" or "margin security" as such
terms are defined in Regulation U and Regulation X.
"Material Adverse Effect" means a material adverse effect upon (i)
the financial condition or assets of the Company, the Borrower and their
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
material obligations under the Loan Documents, (iii) the ability of the
Guarantors to perform their material obligations under the Guaranties, or (iv)
the ability of the Lenders or the Administrative Agent to enforce any of the
Loan Documents.
"Metropolitan" means Metropolitan Partners, LLC, a Delaware limited
liability company, in which the Borrower currently owns 100% of the common
equity interests.
"Moody's" means Moody's Investors Service, Inc.
"MOP" means Metropolitan Operating Partnership, L.P., a Delaware
limited partnership, and a Subsidiary of Metropolitan.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Borrower or any ERISA Affiliate or
in respect of which the Borrower or any ERISA Affiliate has assumed any
liability.
"Net Cash Proceeds" means all cash (whether proceeds, dividends, or
distributions) when and as received in connection with the sale or refinancing
of any Property or other asset (including interests in Joint Ventures and
Subsidiaries) or multiple Properties or assets in a single
-16-
transaction (an "Asset Sale"), less reasonable costs and expenses, repayment
of secured indebtedness with respect to the applicable asset, repayment of
loans under the Existing Revolving Credit Agreement required by Section 8.9 of
the Existing Revolving Credit Agreement, and net of an amount equal to taxable
capital gains and real estate transfer taxes payable in connection with any
asset sale.
"Net Income" means, with respect to any Person, the net income of
such Person determined in accordance with GAAP.
"Net Offering Proceeds" means all cash or other assets received by
the Company or the Borrower or their respective Subsidiaries as a result of a
Capital Markets Transaction, less customary costs, expenses and discounts of
issuance paid by the Company, the Borrower or such Subsidiary, as the case may
be.
"New York City Asset" means Real Property which is Class A office
property located in the borough of Manhattan, New York, New York and which is
owned or ground-leased by one of the Consolidated Businesses or Joint
Ventures.
"NOI" means (x) net operating income determined in accordance with
GAAP, before gains or losses from extraordinary items relating to any Real
Property, plus (y) (i) any interest expense relating to such Real Property,
(ii) depreciation and amortization relating to such Real Property, and (iii)
Property Level G&A to the extent included in the calculation of net operating
income, less (z) (i) free rent and accrued rent with respect to tenants that
are more than 90 days in arrears in the payment of rent, and further adjusted
to omit the straight line treatment of rent, so as to account for rent on an
accrual basis, (ii) any interest income relating to such Real Property, and
(iii) the greater of Property Level G&A to the extent included in the
calculation of net operating income and an amount equal to 2% of gross
revenues with respect to such Real Property.
"Non Pro Rata Loan" has the meaning set forth in Section 4.2(b)(iv).
"Non-Recourse Carve-Outs" means exceptions to non-recourse
obligations, such as fraud, misappropriation, waste, environmental
liabilities, improper transfer and breach of restrictions on further financing
and breach of single purpose entity covenants, which are usual and customary
in secured transactions involving institutional lenders or securitized
financings and recourse to single purpose entities that are Consolidated
Businesses which have no material assets other than the Real Property or
Properties which are the subject of the Secured Indebtedness.
"Note" has the meaning set forth in Section 4.3(a).
"Notice of Borrowing" means a notice substantially in the form of
Exhibit C attached hereto and made a part hereof.
"Notice of Conversion/Continuation" means a notice substantially in
the form of Exhibit D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
"Obligations" means all Loans, advances, debts, liabilities and
monetary obligations owing by the Borrower to the Administrative Agent, any
Lender, or any Person entitled to indemnification pursuant to Section 14.3 of
this Agreement, of any kind or nature, arising under this Agreement, the Notes
or any other Loan Document. The term includes, without limitation,
-17-
all interest, charges, reasonable expenses, fees, reasonable attorneys' fees and
disbursements and any other sum chargeable to the Borrower under this
Agreement or any other Loan Document.
"Officer's Certificate" means, as to a corporation, a certificate
executed on behalf of such corporation by the chairman of its board of
directors (if an officer of such corporation) or its chief executive officer,
president, any of its vice-presidents, its chief financial officer, or its
treasurer and, as to a partnership, a certificate executed on behalf of such
partnership by the chairman of the board of directors (if an officer of such
corporation) or chief executive officer, president, any vice-president, or
treasurer of the general partner of such partnership.
"Operating Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which is
not a Capital Lease.
"Organizational Documents" means, with respect to any corporation,
limited liability company, or partnership (i) the articles/certificate of
incorporation (or the equivalent organizational documents) of such corporation
or limited liability company, (ii) the partnership agreement executed by the
partners in such partnership, (iii) the by-laws (or the equivalent governing
documents) of such corporation, limited liability company or partnership, and
(iv) any document setting forth the designation, amount and/or relative
rights, limitations and preferences of any class or series of such
corporation's Capital Stock or such limited liability company's or
partnership's equity or ownership interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29
U.S.C. ss.ss. 651 et seq., any amendments thereto, any successor statutes and
any regulations or guidelines promulgated thereunder.
"Other Management Company" means property management companies
controlled (directly or indirectly) by the Company or the Borrower which may
manage properties owned by third parties.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"Performing Notes" means mortgage notes, notes receivable and other
investments in Real Property (other than investments in or loans to, directly
or indirectly, an Investment Fund, or joint venture arrangements with an
Investment Fund, or an affiliated or unaffiliated operating company in which
such Investment Fund or joint venture arrangements with an Investment Fund
owns an equity interest), valued at the lower of cost or market in accordance
with GAAP and which are not more than 30 days past due or otherwise in
default; provided, that, in the case of mortgage notes, notes receivable and
other investments in Real Property that generate cash and non-cash payments,
such mortgage notes, notes receivable and other investments in Real Property
shall be treated as Performing Notes whose value is determined solely by
reference to the cash payments and references to the income generated by the
Performing Notes shall include only the cash payments which have current
payments payable in cash.
"Permits" means any permit, consent, approval, authorization license,
variance, or permission required from any Person, including any Governmental
Approvals.
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"Permitted Securities Options" means the subscriptions, options,
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower's Securities or the Company's Capital
Stock identified as such on Schedule 1.1.2.
"Person" means any natural person, corporation, limited liability
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust,
business trust or other organization, whether or not a legal entity, and any
Governmental Authority.
"Plan" means a Benefit Plan or a Multiemployer Plan.
"Potential Event of Default" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"Prepayment Date" has the meaning set forth in Section 4.1(c).
"Project" means any office or industrial properties owned or
ground-leased, directly or indirectly, by any of the Consolidated Businesses
or Joint Ventures.
"Property" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business or any Joint Venture.
The definition of "Property" shall specifically exclude items of Real Property
or personal property owned or leased by members of the Rechler family.
"Property Level G&A" means general and administrative expenses
allocated to the Properties.
"Pro Rata Share" means, with respect to any Lender, (a) prior to the
making of the Term Loan or the expiration of the Term Loan Commitments, the
percentage set forth on Schedule LC and (b) after the Funding Date, the
percentage obtained by dividing (i) the aggregate amount of such Lender's
Loans (as may be adjusted from time to time in accordance with the provisions
of this Agreement or any Assignment and Acceptance to which such Lender is a
party), by (ii) the aggregate amount of all of the Lenders' Loans.
"Qualified Joint Venture Partners" means (a) pension funds, insurance
companies, banks, investment banks or similar institutional entities, each
with significant experience in making investments in commercial real estate
and (b) commercial real estate companies of similar quality and experience.
"Quarterly Compliance Certificates" has the meaning set forth in
Section 8.2(a)(iii).
"Rating Agency" means Moody's, S&P, Fitch or another
nationally-recognized rating agency reasonably satisfactory to the
Administrative Agent.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. ss.ss. 6901 et seq., any amendments thereto, any successor statutes,
and any regulations or guidelines promulgated thereunder.
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"Real Property" means all of the Borrower's and the Consolidated
Businesses' present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any Improvements of every nature whatsoever (the rights and interests
described in clauses (i) and (ii) above being the "Premises"), (iii) all
easements, rights of way, gores of land or any lands occupied by streets,
ways, alleys, passages, sewer rights, water courses, water rights and powers,
and public places adjoining such land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any
way belong, relate or be appurtenant thereto, and (iv) all other rights and
privileges thereunto belonging or appertaining and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of
any of the rights and interests described in clause (iii) above.
"Reckson" means Reckson Operating Partnership, L.P., a Delaware
limited partnership.
"Reference Bank" means Citibank, N.A.
"Register" has the meaning set forth in Section 14.1(c).
"Regulation A" means Regulation A of the Federal Reserve Board as in
effect from time to time.
"Regulation T" means Regulation T of the Federal Reserve Board as in
effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board as in
effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board as in
effect from time to time.
"REIT" means a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, et seq., of the
Internal Revenue Code.
"Release" means any release, spill, emission, leaking, pumping,
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or
into or out of any Property, including the movement of Contaminants through or
in the air, soil, surface water, groundwater or Property.
"Remedial Action" means actions required to (i) clean up, remove,
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants; or (iii) investigate and determine if a
remedial response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"Reportable Event" means any of the events described in Section
4043(c) of ERISA and the regulations promulgated thereunder as in effect from
time to time but not including any such event as to which the thirty (30) day
notice requirement has been waived by applicable PBGC regulations.
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"Requirements of Law" means, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and any
law, rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject including, without limitation, the Securities Act, the Securities
Exchange Act, Regulations T, U and X, ERISA, the Fair Labor Standards Act, the
Worker Adjustment and Retraining Notification Act, Americans with Disabilities
Act of 1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit and Environmental, Health or
Safety Requirement of Law.
"Requisite Lenders" means Lenders whose Pro Rata Shares, in the
aggregate, are equal to or greater than sixty-six and two-thirds percent
(66.67%); provided, however, that, in the event any of the Lenders shall have
failed to fund its Pro Rata Share of the Loans which such Lenders are
obligated to fund under the terms of this Agreement and any such failure has
not been cured as provided in Section 4.2(b)(iv)(B), then for so long as such
failure continues, "Requisite Lenders" means Lenders (excluding all Lenders
whose failure to fund their respective Pro Rata Shares of such Loans have not
been so cured) whose Pro Rata Shares represent sixty-six and two-thirds
percent (66.67%) or more of the aggregate Pro Rata Shares of such Lenders.
"Restricted Payment" has the meaning set forth in Section 10.11(h).
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Secured Indebtedness" means any Indebtedness secured by a Lien.
"Securities" means any stock, shares, voting trust certificates,
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
obligations.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute.
"Servicing EBITDA" means, with respect to the Management Company or
any other service company owned by the Borrower or the Company, as of the
first day of each fiscal quarter for the immediately preceding fiscal quarter,
an amount, determined in accordance with GAAP, equal to (i) total earnings
relating to such companies' operations adjusted to exclude amounts that are
more than 90 days delinquent, less (ii) total operating expenses relating to
such operations, including corporate marketing, general and administrative
expenses.
"Solvent", when used with respect to any Person, means that at the
time of determination:
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(i) the fair saleable value of its assets is in excess of the
total amount of its liabilities (including, without limitation,
contingent liabilities); and
(ii) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts
become absolute and matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other
commitments) as they mature; and
(iv) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"Subsidiary" of a Person means any corporation, limited liability
company, general or limited partnership, or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions are at
the time directly or indirectly owned or controlled by such Person, one or
more of the other subsidiaries of such Person or any combination thereof.
"Taxes" has the meaning set forth in Section 13.1(a).
"Telerate Page 3750" means the display known as "Telerate Page 3750"
(or such other page as may replace Telerate Page 3750 as the display of such
service (other than Telerate Service) as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
British Bankers' Association interest settlement rates for U.S. Dollar
deposits).
"Tenant Allowance" means a cash allowance paid to a tenant by the
landlord pursuant to a Lease.
"Term Loan" is defined in Section 2.1(a) hereof.
"Term Loan Commitment" means, with respect to any Lender, the
obligation of such Lender to make Loans pursuant to the terms and conditions
of this Agreement, and which shall not exceed the principal amount set forth
opposite such Lender's name on Schedule LC hereto or in the Assignment and
Acceptance by which it became a Lender, as modified from time to time pursuant
to the terms of this Agreement or to give effect to any applicable Assignment
and Acceptance, and "Term Loan Commitments" means the aggregate principal
amount of the Term Loan Commitments of all the Lenders, the maximum amount of
which shall be $470,000,000.
"Term Loan Maturity Date" means May 11, 2006; provided, that if such
date shall fall on a day that is not a Business Day, then the Term Loan
Maturity Date shall be the preceding Business Day.
"Term Loan Obligations" means, at any particular time, the
outstanding principal amount of the Loans at such time.
"TI Work" means any construction or other "build out" of tenant
leasehold improvement to the space demised to the applicable tenant under a
Lease (excluding such tenant's furniture, fixtures and equipment) performed
pursuant to the terms of such Lease, whether or not such
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tenant improvement work is performed by or on behalf of the landlord or as
part of a Tenant Allowance.
"Total Adjusted EBITDA" means, for any quarterly period, (i) net
income determined in accordance with GAAP, plus (ii) Total Interest Expense,
depreciation and amortization deducted in the calculation of such net income,
plus (iii) taxes on income deducted in the calculation of such net income,
less (iv) the gains (and plus the losses) from extraordinary items, asset
sales, write-ups, debt forgiveness, asset impairments, mark to market
adjustments for marketable securities or fair market valuation adjustments for
derivatives included in the calculation of such net income, less (v) the
Capital Expenditure Coverage Reserve Amounts divided by four.
"Total Interest Expense" means the sum of (i) interest expense of the
Consolidated Businesses paid during such period and (ii) interest expense of
the Consolidated Businesses accrued and/or capitalized for such period and
(iii) the pro-rata portion of the interest expense of Joint Ventures allocable
to the Borrower and paid during such period and (iv) the pro-rata portion of
the interest expense of Joint Ventures allocable to the Borrower accrued
and/or capitalized for such period, in each case including participating
interest expense but excluding extraordinary interest expense, and net of
amortization of deferred costs associated with new financings or refinancings
of existing Indebtedness.
"Total Outstanding Indebtedness" means, for any period, the sum of
(i) the amount of Indebtedness of the Consolidated Businesses set forth on the
then most recent quarterly financial statements of the Borrower, prepared in
accordance with GAAP, plus any additional Indebtedness incurred by the
Consolidated Businesses since the time of such statements, less any
Indebtedness repaid by the Consolidated Businesses since the time of such
statements, and (ii) the outstanding amount of Joint Venture Indebtedness set
forth on the then most recent quarterly financial statements of the Borrower
or the applicable Joint Venture, prepared in accordance with GAAP, plus any
additional Joint Venture Indebtedness incurred by the Joint Ventures since the
time of such statements, less any Indebtedness repaid by the Joint Ventures
since the time of such statements; provided that all of the foregoing shall
only include the Consolidated Businesses' pro rata share of the outstanding
and additional Indebtedness, as the case may be, with respect to any Joint
Venture, and (iii) the Contingent Obligations of the Consolidated Businesses
and the pro-rata portion of Contingent Obligations of the Joint Ventures
allocable to the Consolidated Businesses.
"Total Recourse Secured Outstanding Indebtedness" means Total Secured
Outstanding Indebtedness under the terms of which any of the Consolidated
Businesses guarantees or is directly obligated for any portion of such
Indebtedness or interest payments thereon (other than Non-Recourse
Carve-Outs), including, without limitation, the pro rata share of such
recourse Indebtedness of Joint Ventures allocable to any of the Consolidated
Businesses.
"Total Secured Outstanding Indebtedness" means the sum of (i) that
portion of Total Outstanding Indebtedness that is secured by a Lien,
including, without duplication, the pro rata share of such Indebtedness that
is Joint Venture Indebtedness allocable to any of the Consolidated Businesses,
plus (ii) that portion of Total Outstanding Indebtedness attributable to
Consolidated Subsidiaries of the Borrower (or the Joint Ventures) which is
recourse to the Borrower or any of the Consolidated Subsidiaries (other than
Non-Recourse Carve-Outs), regardless of whether it is secured by a Lien (it
being understood that this definition shall not include the Loans hereunder).
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"Total Unencumbered Value" means the portion of Total Value
attributable to (x) Unencumbered assets (including, without limitation, the
Unencumbered New York City Assets and the other Unencumbered Projects, but
excluding Investment Funds and service company income) owned or ground-leased
under an Eligible Ground Lease by the Consolidated Businesses and the Joint
Ventures and (y) the Eligible Encumbered Properties, subject to the
limitations set forth in the next paragraph and the following conditions and
limitations: (i) only the amount of unrestricted Cash and Cash Equivalents in
excess of $40,000,000 shall be included; (ii) Joint Venture Unencumbered Value
for Joint Ventures in which the Borrower's beneficial economic interest is
fifty-one percent (51%) or greater shall be included, provided the sale or
financing of any Property owned or ground-leased by such Joint Venture is
substantially controlled by the Borrower, subject to customary provisions set
forth in the organizational documents of such Joint Venture with respect to
financings, sales or rights of first refusal granted to other members of such
Joint Venture; (iii) Joint Venture Unencumbered Value for Joint Ventures in
which the Borrower's beneficial economic interest is less than fifty-one
percent (51%) shall be included, provided that a majority of the beneficial
economic interests in such Joint Ventures that are not owned by the
Consolidated Businesses is owned or controlled by Qualified Joint Venture
Partners; (iv) the portion of Total Unencumbered Value attributable to
Performing Notes shall be included; (v) Land/Development Unencumbered Value
shall be included; and (vi) the portion of Total Unencumbered Value
attributable to Unencumbered office and industrial Projects owned or
ground-leased under an Eligible Ground Lease by the Consolidated Businesses
for less than four (4) fiscal quarters and which have received a certificate
of occupancy shall be included.
Clause (ii) above shall not exceed twenty percent (20%) of Total
Unencumbered Value. Clause (iii) shall not exceed five percent (5%) of Total
Unencumbered Value. Clause (iv) above shall not exceed fifteen percent (15%)
of Total Unencumbered Value. Clause (v) above shall not exceed ten percent
(10%) of Total Unencumbered Value. The sum of clauses (iii), (iv) and (v)
above shall not exceed twenty percent (20%) of Total Unencumbered Value.
"Total Unsecured Outstanding Indebtedness" means the sum of (a) that
portion of Total Outstanding Indebtedness that is not secured by a Lien plus
(b) that portion of Total Outstanding Indebtedness that is secured by a Lien
on an Eligible Encumbered Property. Without limiting the foregoing, Total
Unsecured Outstanding Indebtedness shall include, without double counting, (i)
all amounts outstanding under this Agreement, (ii) all Indebtedness of the
Consolidated Businesses, including the Consolidated Businesses' pro rata share
of Indebtedness of Joint Ventures, which is not secured by a Lien, (iii) all
outstanding undrawn letters of credit of the Consolidated Businesses (and the
pro rata share of such letters of credit allocable to any of the Consolidated
Businesses) less those outstanding undrawn letters of credit for the benefit
of any tenant, prospective tenant or lender at any Real Property to secure the
Consolidated Businesses' leasing obligations relating to tenant improvement
work or third party leasing commissions which have previously been paid, as
evidenced by a schedule provided by the Borrower to the Administrative Agent
upon the request of the Administrative Agent.
"Total Value" means (a) the sum of (i) Valuation NOI divided by (A)
eight and one-half percent (8.50%) for all New York City Assets, (B) nine
percent (9.00%) for all other office Real Property, and (C) nine and one-half
percent (9.50%) for industrial Real Property; (ii) the Investment in office
and industrial Projects owned or ground-leased by the Consolidated Businesses
for less than four fiscal quarters; (iii) unrestricted Cash and Cash
Equivalents; (iv) land cost (at book value) and Construction Asset Cost, which
credit will be limited to fifteen percent (15%) of Total Value (exclusive of
build-to-suit Projects that are seventy-five percent
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(75%) pre-leased or Projects which are less than seventy-five percent (75%)
pre-leased but have a pro-forma yield of ten percent (10%) or more, based upon
executed leases and the cost of acquisition plus the estimated cost to
complete the same, which estimated cost to complete shall be determined in a
manner reasonably acceptable to the Administrative Agent and the Syndication
Agent); (v) NOI from all other Real Property not otherwise set forth in this
definition, divided by twelve percent (12%); (vi) Servicing EBITDA of the
Management Company or other such service companies for the immediately
preceding four (4) consecutive quarters, divided by twenty percent (20%);
(vii) any investment in or loan to (based on the actual cash investment in or
loan to), directly or indirectly, an affiliated or unaffiliated operating
company and investments in or loans to Investment Funds either directly or
indirectly or joint venture arrangements with Investment Funds, which credit
will be limited to $100,000,000 (valued at the lower of cost or market in
accordance with GAAP), other than (x) investments in, loans to, or joint
venture arrangements with Joint Ventures and (y) Performing Notes; (viii)
Performing Notes, which credit will be limited in the aggregate to fifteen
percent (15%) of Total Value; and (ix) Eligible Cash 1031 Proceeds;
less (b) the quotient of the Capital Expenditure Valuation Reserve Amounts for
such period, divided by (A) eight and one-half percent (8.50%) for all New
York City Assets, (B) nine percent (9.00%) for all other office Property, and
(C) nine and one-half percent (9.50%) for industrial Property; and
provided, the sum of items (a) (iv), (vii) and (viii) above shall not exceed
twenty-five percent (25%) of Total Value.
"Unencumbered" means, with respect to any asset (other than a Project
or a New York City Asset) as of any date of determination, that such asset,
the equity interests in such asset and the revenues generated by such asset
are not subject to any Liens (excluding Customary Permitted Liens) or
preferred equity interests.
"Unencumbered New York City Asset" means any Unencumbered Project
that is a New York City Asset.
"Unencumbered Project" means any Project located in the United States
that on any date of determination: (a) is owned or ground-leased under an
Eligible Ground Lease, (b) is not subject (nor are any equity interests
therein subject) to any Liens (excluding Customary Permitted Liens) or
preferred equity interests, (c) has been improved with Improvements which
(except for any portions of the Project being restored or renovated) (1) have
been issued a certificate of occupancy (where available) or is otherwise
lawfully occupied for its intended use, and (2) are fully operational,
including in each case, an Unencumbered Project that is being renovated or
restored and such renovation is proceeding to completion without undue delay
from Permit denial, construction delays or otherwise, (d) has not been the
subject of an event or occurrence that has had a Material Adverse Effect, and
(e) if owned or ground leased by a wholly-owned Subsidiary of the Borrower,
such Subsidiary has executed and delivered a Guaranty.
"Uniform Commercial Code" means the Uniform Commercial Code as
enacted in the State of New York, as it may be amended from time to time.
"Unsecured Interest Expense" means the interest expense paid, accrued
or capitalized on the Total Unsecured Outstanding Indebtedness for the
applicable period.
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"Valuation NOI" means, with respect to any office or industrial
Project or any office or industrial Joint Venture (exclusive of projects under
development) which has been owned or ground-leased by the Borrower for not
less than four consecutive quarters, as of the first day of each fiscal
quarter, an amount equal to the NOI relating to such Project or the Borrower's
pro rata share of such Joint Venture for the immediately preceding consecutive
four fiscal quarters.
"wholly-owned" means, with respect to the ownership of any asset by
any Person, that such Person owns 100% of the voting and economic interests in
such asset; provided that, with the written approval of the Administrative
Agent, such Person may be deemed to wholly-own an asset if it owns less than
100% of the voting and economic interests in such asset so long as such Person
owns 100% of the interests generally having the right to vote with respect to
such asset and at least 90% of the economic interests in such asset.
1.2. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding". Periods of days referred to in this
Agreement shall be counted in calendar days unless Business Days are expressly
prescribed. Any period determined hereunder by reference to a month or months
or year or years shall end on the day in the relevant calendar month in the
relevant year, if applicable, immediately preceding the date numerically
corresponding to the first day of such period, provided that if such period
commences on the last day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month during which such
period is to end), such period shall, unless otherwise expressly required by
the other provisions of this Agreement, end on the last day of the calendar
month.
1.3. Accounting Terms. Subject to Section 14.4, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4. Other Terms. All other terms contained in this Agreement shall,
unless the context indicates otherwise, have the meanings assigned to such
terms by the Uniform Commercial Code to the extent the same are defined
therein.
1.5. Rules of Interpretation. (a) A reference to any document or
agreement shall include such document or agreement as amended, modified or
supplemented from time to time in accordance with its terms and the terms of
this Agreement.
(a) The singular includes the plural and the plural includes
the singular.
(b) A reference to any law includes any amendment or
modification to such law.
(c) A reference to any Person includes its permitted successors
and permitted assigns.
(d) The words "include", "includes" and "including" are not
limiting.
(e) Reference to a particular "Section" refers to that section
of this Agreement unless otherwise indicated, and reference to a particular
"Exhibit" or "Schedule" refers to that exhibit or schedule to this Agreement
unless otherwise indicated.
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ARTICLE II.
AMOUNTS AND TERMS OF LOANS
2.1. Loans.
(a) Commitment to Lend. Subject to the terms and conditions set
forth in this Agreement, each Lender hereby severally and not jointly agrees
to make a term loan, in Dollars (the "Term Loan") to the Borrower on the
Funding Date, in an amount equal to such Lender's Pro Rata Share of the
principal amount of $470,000,000. The aggregate amount of the Term Loan to be
made hereunder shall not exceed Four Hundred Seventy Million Dollars
($470,000,000). The Term Loan shall be made by the Lenders simultaneously and
proportionately to their then respective Pro Rata Shares, it being understood
that no Lender shall be responsible for any failure by any other Lender to
perform its obligation to make a Term Loan hereunder nor shall the Term Loan
Commitment of any Lender be increased or decreased as a result of any such
failure. The Term Loan Commitments, with respect to the making of the Term
Loan (and not with respect to the obligations of the Lenders to convert or
continue any Loans), shall expire on May 30, 2005.
(b) Notice of Borrowing. The Borrower shall provide to the
Administrative Agent a Notice of Borrowing, signed by it (x) no later than
12:00 noon (New York time) on the Business Day immediately preceding the
proposed Funding Date, in the case of a Borrowing of Base Rate Loans and (y)
no later than 11:00 a.m. (New York time) at least three (3) Business Days in
advance of the proposed Funding Date, in the case of a Borrowing of Eurodollar
Rate Loans. The Notice of Borrowing shall specify (i) the proposed Funding
Date (which shall be a Business Day), (ii) the amount of the proposed
Borrowing, (iii) whether the proposed Borrowing will be of Base Rate Loans or
Eurodollar Rate Loans, (iv) in the case of Eurodollar Rate Loans, the
requested Eurodollar Interest Period, (v) instructions for the disbursement of
the proceeds of the proposed Borrowing, (vi) an Officer's Certificate of the
Borrower with respect to compliance with (including calculation thereof)
Sections 10.11(a) and 10.11(e), and (vii) that no Potential Event of Default
or Event of Default shall have occurred and be continuing or would result
therefrom. Any Notice of Borrowing given pursuant to this Section 2.1(b) shall
be irrevocable.
(c) Making of Term Loans. (i) Each Lender shall deposit an
amount equal to its Pro Rata Share of the Term Loan with the Administrative
Agent at its office in New York, New York, in immediately available funds, not
later than 12:00 noon (New York time) on the Funding Date. Subject to the
fulfillment of the conditions precedent set forth in Section 6.1, the
Administrative Agent shall make the proceeds of such amounts received by it
available to the Borrower at the Administrative Agent's office in New York,
New York on the Funding Date (or on the date received if later than such
Funding Date) and shall disburse such proceeds in accordance with the
Borrower's disbursement instructions as set forth in the Notice of Borrowing.
The failure of any Lender to deposit the amount described above with the
Administrative Agent on the Funding Date shall not relieve any other Lender of
its obligations hereunder to make its Term Loan on the Funding Date. In the
event the conditions precedent set forth in Section 6.1 are not fulfilled as
of the Funding Date, the Administrative Agent shall promptly return, by wire
transfer of immediately available funds, the amount deposited by each Lender
to such Lender.
(ii) The Administrative Agent may assume that each Lender has
funded its Term Loan and is depositing the proceeds thereof with the
Administrative Agent on the Funding Date, and the Administrative
Agent in its sole discretion may, but shall not be obligated to,
disburse a corresponding amount to the Borrower on the Funding Date.
If the Term Loan
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proceeds corresponding to that amount are advanced to the Borrower by the
Administrative Agent but are not in fact deposited with the Administrative
Agent by such Lender on or prior to the Funding Date, such Lender agrees to
pay, and in addition the Borrower, agrees to repay, to the Administrative
Agent forthwith on demand such corresponding amount, together with interest
thereon, for each day from the date such amount is disbursed to or for the
benefit of the Borrower until the date such amount is paid or repaid to the
Administrative Agent, at the average Federal Funds Rate for such period. If
such Lender shall pay to the Administrative Agent the corresponding amount,
the amount so paid shall constitute such Lender's Term Loan as of the Funding
Date, and if both such Lender and the Borrower shall pay and repay such
corresponding amount, the Administrative Agent shall promptly pay to the
Borrower such corresponding amount. This Section 2.1(c)(ii) does not relieve
any Lender of its obligation to make its Term Loan on the Funding Date.
2.2. Use of Proceeds of Loans. The proceeds of the Loans issued for
the account of the Borrower hereunder shall be used for the purposes of
general working capital needs of the Borrower and other general corporate
purposes, including acquisitions.
2.3. Term Loan Maturity Date. The Borrower promises to pay the Term
Loan Obligations and all other Obligations in full on the Term Loan Maturity
Date.
2.4. Authorized Agents. On the Closing Date and from time to time
thereafter, the Borrower shall deliver to the Administrative Agent an
Officer's Certificate setting forth the names of the employees and agents
authorized to request the Term Loan and to request a conversion/continuation
of any Loan and containing a specimen signature of each such employee or
agent. The employees and agents so authorized shall also be authorized to act
for the Borrower in respect of all other matters relating to the Loan
Documents. The Administrative Agent, the Arranger, and the Lenders shall be
entitled to rely conclusively on such employee's or agent's authority to
request the Term Loan or such conversion/continuation until the Administrative
Agent and the Arranger receive written notice to the contrary. Neither the
Administrative Agent nor the Arranger shall have any duty to verify the
authenticity of the signature appearing on the Notice of Borrowing or any
Notice of Conversion/Continuation or any other document, and, with respect to
an oral request for such conversion/continuation, the Administrative Agent and
the Arranger shall have no duty to verify the identity of any person
representing himself or herself as one of the employees or agents authorized
to make such request or otherwise to act on behalf of the Borrower. None of
the Administrative Agent, the Arranger or the Lenders shall incur any
liability to the Borrower or any other Person in acting upon any telephonic or
facsimile notice referred to above which the Administrative Agent or the
Arranger believe to have been given by a person duly authorized to act on
behalf of the Borrower and the Borrower hereby indemnifies and holds harmless
the Administrative Agent, the Arranger and each Lender from any loss or
expense the Administrative Agent, the Arranger or the Lenders might incur in
acting in good faith as provided in this Section 2.4; provided, however, that
Borrower shall not indemnify the applicable party for acts resulting from its
own gross negligence or willful misconduct.
ARTICLE III.
INTENTIONALLY OMITTED
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ARTICLE IV.
PAYMENTS AND PREPAYMENTS
4.1. Prepayments.
(a) Voluntary Prepayments. The Borrower may, at any time and
from time to time, prepay the Loans, in part or in their entirety, subject to
the following limitations. The Borrower shall give at least three (3) Business
Days prior written notice to the Administrative Agent (which the
Administrative Agent shall promptly transmit to each Lender) of any prepayment
in the entirety to be made prior to the occurrence of an Event of Default,
which notice of prepayment shall specify the date (which shall be a Business
Day) of prepayment. When notice of prepayment is delivered as provided herein,
the outstanding principal amount of the Loans on the prepayment date specified
in such notice shall become due and payable on such prepayment date. Each
voluntary partial prepayment of the Loans shall be in a minimum amount of
$1,000,000 and in integral multiples of $500,000 in excess of that amount (or
such lesser amount in the event the unpaid principal amount of any Loan is
less than such minimum prepayment amount). Eurodollar Rate Loans may be
prepaid in part or in their entirety only upon payment of the amounts
described in Section 5.2(f). Any amounts repaid pursuant to this Agreement may
not be reborrowed.
(b) No Penalty. The prepayments and payments in respect of
reductions and terminations described in clause (a) of this Section 4.1 may be
made without premium or penalty (except as provided in Section 5.2(f)).
(c) Mandatory Prepayment.
(i) If at any time from and after the Closing Date: (i) the
Company or the Borrower merges or consolidates with another Person
and the Company or Borrower, as the case may be, is not the surviving
entity and does not control the management of such surviving entity,
or (ii) the Company, the Borrower, any of its Affiliates or
Consolidated Subsidiaries or the Management Company ceases to provide
property management and leasing services to at least 80% of the total
number of Projects in which the Borrower has a direct ownership
interest (the date any such event shall occur being the "Prepayment
Date"), the Borrower shall prepay the Loans in their entirety as if
the Prepayment Date were the Term Loan Maturity Date. The Borrower
shall immediately make such prepayment together with interest accrued
to the date of the prepayment on the principal amount prepaid .
(ii) If the Borrower, the Company or any Subsidiary receives any
Net Offering Proceeds or any Eligible Net Cash Proceeds, the Borrower
shall prepay the Loans on the date such Eligible Net Offering
Proceeds or Net Cash Proceeds are received as follows:
(A) 100% of the Net Offering Proceeds of any Capital
Markets Transaction consisting of a convertible securities
offering shall be applied to the repayment of the Term Loan;
(B) 100% of the aggregate amount of (1) the Net Offering
Proceeds of all other Capital Markets Transactions (other than
the convertible securities offering described in clause (A)
above) and (2) the Eligible Net Cash Proceeds shall be applied
to the repayment of the Term Loan; provided that the Borrower
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may, at its option at any time, apply up to $200,000,000 in the
aggregate of such Net Offering Proceeds and Eligible Net Cash
Proceeds to repay the outstanding loans under the Existing
Revolving Credit Agreement, and amounts so applied to such
repayment of loans under the Existing Revolving Credit Agreement
shall not be required to be applied to the prepayment of the
Loans.
In connection with the prepayment of any Loan prior to the maturity thereof,
the Borrower shall also pay any applicable expenses pursuant to Section
5.2(f). Each such prepayment shall be applied to prepay ratably the Loans of
the Lenders. Amounts prepaid pursuant to this Section 4.1(c) may not be
reborrowed. Such prepayment shall not affect any rights and remedies that the
Agents and Lenders may otherwise have hereunder.
4.2. Payments.
(a) Manner and Time of Payment. All payments of principal of
and interest on the Loans and other Obligations (including, without
limitation, fees and expenses) which are payable to the Administrative Agent,
the Arranger or any Lender shall be made without condition or reservation of
right, in immediately available funds, delivered to the Administrative Agent
not later than 12:00 noon (New York time) on the date and at the place due, to
such account of the Administrative Agent (or Arranger) as it may designate,
for the account of the Administrative Agent, the Arranger, or such Lender, as
the case may be; and funds received by the Administrative Agent (or Arranger)
not later than 12:00 noon (New York time) on any given Business Day shall be
credited against payment to be made that day and funds received by the
Administrative Agent (or Arranger) after that time shall be deemed to have
been paid on the next succeeding Business Day. Payments actually received by
the Administrative Agent for the account of the Lenders, or any of them, shall
be paid to them by the Administrative Agent promptly after receipt thereof.
(b) Apportionment of Payments. (i) Subject to the provisions of
Section 4.2(b)(iv), all payments of principal and interest in respect of
outstanding Loans, all payments of fees and all other payments in respect of
any other Obligations, shall be allocated among such of the Lenders as are
entitled thereto, in proportion to their respective Pro Rata Shares or
otherwise as provided herein. Subject to the provisions of Section 4.2(b)(ii),
all such payments and any other amounts received by the Administrative Agent
from or for the benefit of the Borrower shall be applied in the following
order:
(A) to pay principal of and interest on any portion of
the Loans which the Administrative Agent may have advanced on
behalf of any Lender other than CNAI for which the
Administrative Agent has not then been reimbursed by such Lender
or the Borrower;
(B) to pay all other Obligations then due and payable,
and
(C) as the Borrower so designates.
Unless otherwise designated by the Borrower, all principal payments in respect
of its Loans shall be applied first, to repay its outstanding Base Rate Loans,
and then to repay its outstanding Eurodollar Rate Loans with those Eurodollar
Rate Loans which have earlier expiring Eurodollar Interest Periods being
repaid prior to those which have later expiring Eurodollar Interest Periods.
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(ii) After the occurrence of an Event of Default and while the
same is continuing which results in an acceleration of the
Obligations in accordance with Section 11.2, the Administrative Agent
shall apply all payments in respect of any Obligations in the
following or der:
(A) first, to pay principal of and interest on any
portion of the Loans which the Administrative Agent may have
advanced on behalf of any Lender other than CNAI for which the
Administrative Agent has not then been reimbursed by such Lender
or the Borrower;
(B) second, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the
Administrative Agent;
(C) third, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Lenders;
(D) fourth, to pay interest due in respect of Loans;
(E) fifth, to the ratable payment or prepayment of
principal outstanding on Loans; and
(F) sixth, to the ratable payment of all other
Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent and the Lenders as among themselves.
The order of priority set forth in clauses (A) and (B) of this Section
4.2(b)(ii) may be changed only with the prior written consent of the
Administrative Agent.
(iii) Subject to Section 4.2(b)(iv), the Administrative Agent
shall promptly distribute to the Arranger and each Lender at its
primary address set forth on Schedule LC hereto or as set forth in
the Assignment and Acceptance by which it became a Lender, or at such
other address as a Lender may request in writing, such funds as such
Person may be entitled to receive, subject to the provisions of
Article XII; provided that the Administrative Agent shall under no
circumstances be bound to inquire into or determine the validity,
scope or priority of any interest or entitlement of any Lender and
may suspend all payments or seek appropriate relief (including,
without limitation, instructions from the Requisite Lenders or an
action in the nature of interpleader) in the event of any doubt or
dispute as to any apportionment or distribution contemplated hereby.
(iv) In the event that any Lender fails to fund its Pro Rata
Share of the Term Loan which such Lender is obligated to fund under
the terms of this Agreement (the funded portion of the Term Loan
being hereinafter referred to as a "Non Pro Rata Loan"), until the
earlier of such Lender's cure of such failure and the termination of
the Term Loan Commitments, the proceeds of all amounts thereafter
repaid to the Administrative Agent by the Borrower and otherwise
required to be applied to such Lender's share of all other
Obligations pursuant to the terms of this Agreement shall be advanced
to the Borrower by the Administrative Agent on behalf of such Lender
to cure, in full or in part, such failure by such Lender, but shall
nevertheless be deemed to have
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been paid to such Lender in satisfaction of such other Obligations.
Notwithstanding anything in this Agreement to the contrary:
(A) the foregoing provisions of this Section 4.2(b)(iv)
shall apply only with respect to the proceeds of payments of
Obligations and shall not affect the conversion or continuation
of Loans pursuant to Section 5.1(c);
(B) a Lender shall be deemed to have cured its failure to
fund its Pro Rata Share of the Term Loan at such time as an
amount equal to such Lender's original Pro Rata Share of the
requested principal portion of the Term Loan is fully funded to
the Borrower, whether made by such Lender itself or by operation
of the terms of this Section 4.2(b)(iv), and whether or not the
Non Pro Rata Loan with respect thereto has been repaid,
converted or continued; and
(C) regardless of whether or not an Event of Default has
occurred or is continuing, and notwithstanding the instructions
of the Borrower as to its desired application, all repayments of
principal which, in accordance with the other terms of this
Section 4.2, would be applied to its outstanding Base Rate Loans
shall be applied first, ratably to its Base Rate Loans
constituting Non Pro Rata Loans and second, ratably to its Base
Rate Loans other than those constituting Non Pro Rata Loans.
(c) Payments on Non-Business Days. Whenever any payment to be
made by the Borrower hereunder or under the Notes is stated to be due on a day
which is not a Business Day, the payment shall instead be due on the next
succeeding Business Day (or, as set forth in Section 5.2(b)(iii), the next
preceding Business Day).
4.3. Promise to Repay; Evidence of Indebtedness.
(a) Promise to Repay. The Borrower hereby agrees to pay when
due, without setoff or counterclaim, the principal amount of the Term Loan
which is made to it, and further agrees to pay all unpaid interest accrued
thereon, in accordance with the terms of this Agreement and the Notes. The
Borrower shall execute and deliver to each Lender on or prior to the Closing
Date, a promissory note, in the form of Exhibit B attached hereto with blanks
appropriately completed, evidencing the Term Loans and thereafter shall
execute and deliver such other promissory notes as are necessary to evidence
the Term Loans made to it owing to the Lenders after giving effect to any
assignment thereof pursuant to Section 14.1, all in the form of Exhibit B
attached hereto with blanks appropriately completed (all such promissory notes
and all amendments thereto, replacements thereof and substitutions therefor
being collectively referred to as the "Notes"; and "Note" means any one of the
Notes).
(b) Loan Account. Each Lender shall maintain in accordance with
its usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of the Borrower to such Lender from time to time, including the
amount of principal and interest payable and paid to such Lender from time to
time hereunder and under the Notes.
(c) Control Account. The Register maintained by the
Administrative Agent pursuant to Section 14.1(c) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken
together) shall be recorded (i) the date and amount of the Loans made
hereunder, any conversion or continuation of the Loans, including the type of
Loan and any
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Eurodollar Interest Period applicable thereto, (ii) the effective date and
amount of each Assignment and Acceptance delivered to and accepted by it and
the parties thereto, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender
hereunder or under the Notes and (iv) the amount of any sum received by the
Administrative Agent from the Borrower hereunder and each Lender's share
thereof.
(d) Entries Binding. The entries made in the Register and each
Loan Account shall be conclusive and binding for all purposes, absent manifest
error.
(e) No Recourse. Notwithstanding anything contained in this
Agreement, any Note, or the Guaranties to the contrary, it is expressly
understood and agreed that nothing herein or therein shall be construed as
creating any liability on any Limited Partner, or any partner, officer,
shareholder or director of any Limited Partner or any officer, trustee,
member, director, or employee of the Borrower or any Guarantor, to pay any of
the Obligations other than liability arising under applicable law from or in
connection with (i) its own fraud or (ii) the misappropriation or
misapplication by it of proceeds of the Loans; but nothing contained in this
Section 4.3(e) shall be construed to prevent the exercise of any remedy
allowed to the Administrative Agent, the Arranger or the Lenders by law or by
the terms of this Agreement or the other Loan Documents which does not relate
to or result in such an obligation by any Limited Partner or such other
Persons to pay money.
ARTICLE V.
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations.
(a) Rate of Interest. All Loans and the outstanding principal
balance of all other Obligations shall bear interest on the unpaid principal
amount thereof from the Funding Date and such other Obligations are due and
payable until paid in full, except as otherwise provided in Section 5.1(d), as
follows:
(i) If a Base Rate Loan or such other Obligation, at a rate per
annum equal to the sum of (A) the Base Rate, as in effect from time
to time as interest accrues, plus (B) the then Applicable Margin for
Base Rate Loans; and
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to the
sum of (A) the Eurodollar Rate determined for the applicable
Eurodollar Interest Period, plus (B) the then Applicable Margin for
Eurodollar Loans.
The applicable basis for determining the rate of interest on the Loans shall
be selected by the Borrower at the time the Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; provided, however, the Borrower may not select the Eurodollar Rate as
the applicable basis for determining the rate of interest on such a Loan if at
the time of such selection an Event of Default has occurred and is continuing
or if Eurodollar Rate Loans are not available pursuant to Section 5.2(d) or
(e). If on any day any Loan is outstanding with respect to which notice has
not been timely delivered to the Administrative Agent in accordance with the
terms of this Agreement specifying the basis for determining the rate of
interest on that day, then for that day interest on that Loan shall be
determined by reference to the Base Rate.
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(b) Interest Payments. (i) Interest accrued on each Loan,
whether a Base Rate Loan or a Eurodollar Loan shall be calculated on the last
day of each calendar month and shall be payable in arrears (A) on the first
day of each calendar month, commencing on the first such day following the
Funding Date, (B) upon the payment or prepayment thereof in full or in part,
and (C) if not theretofore paid in full, at maturity (whether by acceleration
or otherwise) of the Loan.
(ii) Interest accrued on the principal balance of all other
Obligations shall be calculated on the last day of each calendar
month and shall be payable in arrears (A) on the first (1st) Business
Day of each calendar month, commencing on the first such day
following the incurrence of such Obligation, (B) upon repayment
thereof in full or in part, and (C) if not theretofore paid in full,
at the time such other Obligation becomes due and payable (whether by
acceleration or otherwise).
(c) Conversion or Continuation. (i) The Borrower shall have the
option (A) to convert at any time all or any part of outstanding Base Rate
Loans to Eurodollar Rate Loans; (B) to convert all or any part of outstanding
Eurodollar Rate Loans having Eurodollar Interest Periods which expire on the
same date to Base Rate Loans on such expiration date; or (C) to continue all
or any part of outstanding Eurodollar Rate Loans having Eurodollar Interest
Periods which expire on the same date as Eurodollar Rate Loans, and the
succeeding Eurodollar Interest Period of such continued Loans shall commence
on such expiration date; provided, however, no such outstanding Loan may be
continued as, or be converted into, a Eurodollar Rate Loan (i) if the
continuation of, or the conversion into, would violate any of the provisions
of Section 5.2 or (ii) if an Event of Default has occurred and is continuing.
Any conversion into or continuation of Eurodollar Rate Loans under this
Section 5.1(c) shall be in a minimum amount of $3,000,000 and in integral
multiples of $500,000 in excess of that amount, except in the case of a
conversion into or a continuation of the entire Borrowing of Non Pro Rata
Loans.
(ii) To convert or continue a Loan under Section 5.1(c)(i), the
Borrower shall deliver a Notice of Conversion/Continuation to the
Administrative Agent no later than 11:00 a.m. (New York time) at
least three (3) Business Days in advance of the proposed
conversion/continuation date. A Notice of Conversion/Continuation
shall specify (A) the proposed conversion/continuation date (which
shall be a Business Day), (B) the principal amount of the Loan to be
converted/continued, (C) whether such Loan shall be converted and/or
continued, and (D) in the case of a conversion to, or continuation
of, a Eurodollar Rate Loan, the requested Eurodollar Interest Period.
Promptly after receipt of a Notice of Conversion/Continuation under
this Section 5.1(c)(ii), the Administrative Agent shall notify each
Lender by facsimile transmission, or other similar written form of
transmission, of the proposed conversion/continuation. Any Notice of
Conversion/Continuation for conversion to, or continuation of, a Loan
(or telephonic notice in lieu thereof) given pursuant to this Section
5.1(c)(ii) shall be irrevocable, and the Borrower shall be bound to
convert or continue in accordance therewith. In the event no Notice
of Conversion/Continuation is delivered as and when specified in this
Section 5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans,
upon the expiration of the Eurodollar Interest Period applicable
thereto, such Loans shall automatically be converted to a Base Rate
Loan.
(d) Default Interest. Notwithstanding the rates of interest
specified in Section 5.1(a) or elsewhere in this Agreement, effective
immediately upon the occurrence of an Event of Default, and for as long
thereafter as such Event of Default shall be continuing, the principal balance
of the Loans and other Obligations shall bear interest at a rate equal to (A)
in
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the case of any Eurodollar Rate Loans outstanding as of the date of
occurrence of any Event of Default, the sum of (x) the applicable Eurodollar
Rate, plus (y) six percent (6.0%) per annum, and (B) in the case of any Base
Rate Loan (including any Eurodollar Loan that is converted to a Base Rate Loan
at maturity) the sum of (x) the Base Rate, as in effect from time to time as
interest accrues, plus (y) five percent (5.0%) per annum.
(e) Computation of Interest. Interest on all obligations shall
be computed on the basis of the actual number of days elapsed in the period
during which interest accrues and a year of 360 days. In computing interest on
any Loan, the Funding Date or the first day of a Eurodollar Interest Period,
as the case may be, shall be included and the date of payment or the
expiration date of a Eurodollar Interest Period, as the case may be, shall be
excluded.
(f) Eurodollar Rate Information. Upon the request of the
Borrower, the Administrative Agent shall promptly provide to the Borrower such
information with respect to the applicable Eurodollar Rate as may be so
requested.
5.2. Special Provisions Governing Eurodollar Rate Loans.
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan
shall be in a minimum principal amount of $3,000,000 and in integral multiples
of $500,000 in excess of that amount.
(b) Determination of Eurodollar Interest Period. By giving
notice as set forth in Section 5.1(c), the Borrower shall have the option,
subject to the other provisions of this Section 5.2, to select an interest
period (each, a "Eurodollar Interest Period") to apply to the Loans described
in such notice, subject to the following provisions:
(i) The Borrower may only select a Eurodollar Interest Period
of one, two, or three months in duration;
(ii) In the case of immediately successive Eurodollar Interest
Periods, each successive Eurodollar Interest Period shall commence on
the day on which the next preceding Eurodollar Interest Period
expires;
(iii) If any Eurodollar Interest Period would otherwise expire
on a day which is not a Business Day, such Eurodollar Interest Period
shall be extended to expire on the next succeeding Business Day if
the next succeeding Business Day occurs in the same calendar month,
and if there will be no succeeding Business Day in such calendar
month, such Eurodollar Interest Period shall expire on the
immediately preceding Business Day;
(iv) The Borrower may not select a Eurodollar Interest Period as
to any Loan if such Eurodollar Interest Period terminates later than
the Term Loan Maturity Date;
(v) The Borrower may not select a Eurodollar Interest Period
with respect to any portion of principal of a Loan which extends
beyond a date on which the Borrower is required to make a scheduled
payment of such portion of principal of which the Borrower is aware
on the date of such request, in the case of a payment pursuant to
Section 4.1(c) hereof; and
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(vi) There shall be no more than ten (10) Eurodollar Interest
Periods in effect at any time with respect to Eurodollar Rate Loans.
(c) Determination of Eurodollar Interest Rate. As soon as
practicable on the second Business Day prior to the first day of each
Eurodollar Interest Period (the "Eurodollar Interest Rate Determination
Date"), the Administrative Agent shall determine (pursuant to the procedures
set forth in the definition of "Eurodollar Rate") the interest rate which
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Eurodollar Interest Period and shall
promptly give notice thereof (in writing or by telephone or by facsimile
confirmed in writing) to the Borrower and to each Lender. The Administrative
Agent's determination shall be presumed to be correct, absent manifest error,
and shall be binding upon the Borrower.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the
event that at least one (1) Business Day before any Eurodollar Interest Rate
Determination Date:
(i) the Administrative Agent is advised by the Reference Bank
that deposits in Dollars (in the applicable amounts) are not being
offered by the Reference Bank in the London interbank market for such
Eurodollar Interest Period;
(ii) the Administrative Agent determines that adequate and fair
means do not exist for ascertaining the applicable interest rates by
reference to which the Eurodollar Rate then being determined is to be
fixed; or
(iii) the Requisite Lenders advise the Administrative Agent that
the Eurodollar Rate for Eurodollar Rate Loans to be continued or
converted will not adequately reflect the cost to such Requisite
Lenders of obtaining funds in Dollars in the London interbank market
in an amount substantially equal to such Lenders' Eurodollar Rate
Loans in Dollars and for a period equal to such Eurodollar Interest
Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon (until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such suspension no longer
exist) the right of the Borrower to elect to have Loans bear interest based
upon the Eurodollar Rate shall be suspended and each outstanding Eurodollar
Rate Loan shall be converted into a Base Rate Loan on the last day of the then
current Eurodollar Interest Period therefor, notwithstanding any prior
election by the Borrower to the contrary.
(e) Illegality. (i) If at any time any Lender determines (which
determination shall, absent manifest error, be final and conclusive and
binding upon all parties) that the making or continuation of any Eurodollar
Rate Loan has become unlawful or impermissible by compliance by that Lender
with any law, governmental rule, regulation or order of any Governmental
Authority (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful or would result in costs or penalties),
then, and in any such event, such Lender may give notice of that
determination, in writing, to the Borrower and the Administrative Agent, and
the Administrative Agent shall promptly transmit the notice to each other
Lender.
(ii) When notice is given by a Lender under Section 5.2(e)(i),
(A) the Borrower's right to request from such Lender and such
Lender's obligation, if any, to make Eurodollar Rate Loans to the
Borrower shall be immediately suspended, and (B) if
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the affected Eurodollar Rate Loan or Loans are then outstanding, the
Borrower shall immediately, or if permitted by applicable law, no
later than the date permitted thereby, upon at least one (1) Business
Day's prior written notice to the Administrative Agent and the
affected Lender, convert each such Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under Section
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar
Rate Loans, such Lender shall promptly give notice of that
determination, in writing, to the Borrower and the Administrative
Agent, and the Administrative Agent shall promptly transmit the
notice to each other Lender. The Borrower's right to request, and
such Lender's obligation, if any, to make Eurodollar Rate Loans to
the Borrower shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be
paid by the Borrower pur suant to Section 5.1 and Article XIII, the Borrower
shall compensate each Lender, upon demand, for all losses, expenses and
liabilities (including, without limitation, any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund or maintain such Lender's Eurodollar Rate Loans or to
the Borrower, but excluding any loss of Applicable Margin on the relevant
Loans) which that Lender may sustain (i) if for any reason a conversion into
or continuation of Eurodollar Rate Loans does not occur on a date specified
therefor in a Notice of Conversion/Continuation given by the Borrower or in a
telephonic request by it for conversion/continuation or a successive
Eurodollar Interest Period does not commence after notice therefor is given
pursuant to Section 5.1(c), other than pursuant to Sections 5.2(d) or (e), or
(ii) if for any reason any Eurodollar Rate Loan is prepaid (other than
pursuant to Section 5.2(d) or (e)) or converted on a date which is not the
last day of the applicable Eurodollar Interest Period or (iii) as a
consequence of any failure by the Borrower to repay a Eurodollar Rate Loan
when required by the terms of this Agreement. The Lender making demand for
such compensation shall deliver to the Borrower concurrently with such demand
a written statement in reasonable detail as to such losses, expenses and
liabilities, and this statement shall be conclusive as to the amount of
compensation due to that Lender, absent manifest error.
(g) Booking of Eurodollar Rate Loans. Any Lender may make,
carry or transfer Eurodollar Rate Loans at, to, or for the account of, its
Eurodollar Lending Office or Eurodollar Affiliate or its other offices or
Affiliates. No Lender shall be entitled, however, to receive any greater
amount under Sections 4.2 or 5.2(f) or Article XIII as a result of the
transfer of any such Eurodollar Rate Loan to any office (other than such
Eurodollar Lending Office) or any Affiliate (other than such Eurodollar
Affiliate) than such Lender would have been entitled to receive immediately
prior thereto, unless (i) the transfer occurred at a time when circumstances
giving rise to the claim for such greater amount did not exist and (ii) such
claim would have arisen even if such transfer had not occurred.
(h) Affiliates Not Obligated. No Eurodollar Affiliate or other
Affiliate of any Lender shall be deemed a party to this Agreement or shall
have any liability or obligation under this Agreement.
(i) Adjusted Eurodollar Rate. Any failure by any Lender to take
into account the Eurodollar Reserve Percentage when calculating interest due
on Eurodollar Rate Loans shall not constitute, whether by course of dealing or
otherwise, a waiver by such Lender of its right to collect such amount for any
future period.
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(j) Application of Mandatory Prepayments. The principal amount
of any mandatory prepayment pursuant to Section 4.1(c) hereof, shall be
applied, first, to the outstanding Base Rate Loans and then, to the
outstanding Eurodollar Rate Loans. Unless the Borrower otherwise pays breakage
costs in accordance with Section 5.2(f), the Administrative Agent shall hold
such principal amounts allocated for prepayment of Eurodollar Rate Loans until
the end of the applicable Eurodollar Interest Periods) and, during the interim
period, shall invest said sums in Cash Equivalents. Interest earned thereon
shall be forwarded to the Borrower upon the payment of the Eurodollar Rate
Loans at the end of said Eurodollar Interest Period. Interest shall continue
to accrue on the principal amount of such Eurodollar Rate Loans until so paid.
5.3. Fees.
(a) Upfront Fee. The Borrower shall pay to the Administrative
Agent, for the Administrative Agent's own account, an upfront fee as provided
in the Letter Agreement.
(b) Calculation and Payment of Fees. All fees shall be
calculated on the basis of the actual number of days elapsed in a 360-day
year. All fees shall be payable in addition to, and not in lieu of, interest,
compensation, expense reimbursements, indemnification and other Obligations.
Fees shall be payable to the Administrative Agent at its office in New York,
New York in immediately available funds unless otherwise set forth herein. All
fees shall be fully earned and nonrefundable when paid. All fees due to the
Arranger or any Lender, shall bear interest, if not paid when due, at the
interest rate specified in Section 5.1(d) and shall constitute Obligations.
ARTICLE VI.
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Loans. The obligation of each Lender
on the Funding Date to make the Term Loan requested to be made by it shall be
subject to the satisfaction of all of the following conditions precedent:
(a) Documents. The Administrative Agent shall have received on
or before the Funding Date all of the following:
(i) this Agreement, the Notes, and, to the extent not otherwise
specifically referenced in this Section 6.1(a), all other Loan
Documents and agreements, documents and instruments described in the
List of Closing Documents attached hereto as Exhibit E and made a
part hereof, each duly executed, and in form and substance
satisfactory to the Agents; without limiting the foregoing, the
Borrower hereby directs its counsel, Fried Frank Harris Shriver &
Jacobson LLP to prepare and deliver to the Agents, the Lenders, and
Bingham McCutchen LLP the legal opinions referred to in such List of
Closing Documents; and
(ii) such additional documentation as the Agents may reasonably
request.
(b) No Legal Impediments. No law, regulation, order, judgment
or decree of any Governmental Authority shall, and the Administrative Agent
shall not have received any
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notice that litigation is pending or threatened which is likely to (i) enjoin,
prohibit or restrain the making of the Term Loan on the Funding Date or (ii)
impose or result in the imposition of a Material Adverse Effect.
(c) No Change in Condition. No change in the business, assets,
management, operations, financial condition or prospects of the Borrower or
any of its Properties shall have occurred since December 31, 2004 which
change, in the judgment of the Administrative Agent, will have a Material
Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the
Arranger and the Lenders, or as permitted under the Existing Revolving Credit
Agreement (including as set forth on Schedule 6.1(d) thereto), since December
31, 2004, neither the Borrower nor the Company shall have (i) entered into any
(as determined in good faith by the Administrative Agent) commitment or
transaction, including, without limitation, transactions for borrowings and
capital expenditures, which are not in the ordinary course of the Borrower's
business, (ii) declared or paid any dividends or other distributions other
than in the ordinary course of business, (iii) established compensation or
employee benefit plans, or (iv) redeemed or issued any equity Securities.
(e) No Loss of Material Agreements and Licenses. Since December
31, 2004, no agreement or license relating to the business, operations or
employee relations of the Borrower or any of its Real Properties shall have
been terminated, modified, revoked, breached or declared to be in default, the
termination, modification, revocation, breach or default under which, in the
reasonable judgment of the Administrative Agent, would result in a Material
Adverse Effect.
(f) No Market Changes. Since the Closing Date no material
adverse change shall have occurred in the conditions in the capital markets.
(g) No Default. No Event of Default or Potential Event of
Default shall have occurred and be continuing or would result from the making
of the Loans.
(h) Representations and Warranties. As of the Funding Date,
both before and after giving effect to the Loans, all of the representations
and warranties of the Borrower contained in Sections 7.1, 9.12(b) and 9.14 and
all of the representations of the Borrower and the Guarantors in any other
Loan Document (other than representations and warranties which expressly speak
as of a different date) shall be true and correct in all material respects.
(i) Fees and Expenses Paid. There shall have been paid to the
Administrative Agent, for the accounts of the Agents and the Lenders, as
applicable, all fees due and payable on or before the Funding Date and all
expenses due and payable on or before the Funding Date, including, without
limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
(j) No Legal Impediments. No law, regulation, order,
judgment or decree of any Governmental Authority shall, and the Administrative
Agent shall not have received from such Lender notice that, in the reasonable
judgment of such Lender, litigation is pending or threatened which is likely
to, enjoin, prohibit or restrain such Lender's making of the Loan.
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(k) Acquisition. The Administrative Agent shall receive
evidence satisfactory to it of the closing of the Acquisition substantially
concurrently with the funding of the Term Loan on the Closing Date.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower. In order to
induce the Lenders to enter into this Agreement and to make the Loans and the
other financial accommodations to the Borrower described herein, the Borrower
hereby represents and warrants to each Lender that the following statements
are true, correct and complete:
(a) Organization; Powers. (i) The Borrower (A) is a limited
partnership duly organized, validly existing and in good standing under the
laws of the State of Delaware, (B) is duly qualified to do business and is in
good standing under the laws of each jurisdiction in which failure to be so
qualified and in good standing will have a Material Adverse Effect, (C) has
all requisite power and authority to own, operate and encumber its Property
and to conduct its business as presently conducted and as proposed to be
conducted in connection with and following the consummation of the
transactions contemplated by this Agreement, and (D) is a partnership for
federal income tax purposes.
(ii) The Company (A) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland, (B) is
duly authorized and qualified to do business and is in good standing under the
laws of each jurisdiction in which failure to be so qualified and in good
standing will have a Material Adverse Effect, and (C) has all requisite
corporate power and authority to own, operate and encumber its Property and to
conduct its business as presently conducted.
(iii) True, correct and complete copies of the Organizational
Documents of the Borrower and the Company identified on Schedule 7.1-A have
been delivered to Administrative Agent, each of which is in full force and
effect, has not been modified or amended except to the extent set forth or
indicated therein or as otherwise permitted hereby and, to the best of the
Borrower's knowledge, there are no defaults under such Organizational
Documents and no events which, with the passage of time or giving of notice or
both, would constitute a default under such Organizational Documents. Borrower
shall update Schedule 7.1-A from time to time in order to keep said Schedule
true and correct.
(iv) Neither the Borrower nor the Company is a "foreign
person" within the meaning of Section 1445 of the Internal Revenue Code.
(b) Authority. (i) The Company has the requisite power and
authority to execute and deliver this Agreement on behalf of the Borrower and
each of the other Loan Documents which are required to be executed on behalf
of the Borrower as required by this Agreement. The Company is the Person who
has executed this Agreement and such other Loan Documents on behalf of the
Borrower and is the sole general partner of the Borrower.
(ii) The execution, delivery and performance of each of the
Loan Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Borrower's partnership
powers, have been duly authorized by all necessary partnership action
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(and, in the case of the Company acting on behalf of the Borrower in connection
therewith, all necessary corporate action of the Company) and such
authorization has not been rescinded. No other partnership or corporate action
or proceedings on the part of the Borrower or the Company is necessary to
consummate such transactions.
(iii) Each of the Loan Documents to which the Borrower is a
party has been duly executed and delivered on behalf of the Borrower and
constitutes the Borrower's legal, valid and binding obligation, enforceable
against the Borrower in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally or by general principles of equity
regardless of whether enforcement is considered in a proceeding at law or in
equity. Each of the Loan Documents to which Borrower is a party is in full
force and effect and all the terms, provisions, agreements and conditions set
forth therein and required to be performed or complied with by the Company,
the Borrower and the Borrower's Subsidiaries on or before the Funding Date
have been performed or complied with, and no Potential Event of Default or
Event of Default exists.
(c) Subsidiaries; Ownership of Capital Stock and Partnership
Interests. (i) Schedule 7.1-C (A) contains a diagram indicating the corporate
structure of the Company, the Borrower and any other Person in which the
Company or the Borrower holds a direct or indirect partnership, joint venture
or other equity interest indicating the nature of such interest with respect
to each Person included in such diagram; and (B) accurately sets forth (1) the
correct legal name of such Person, the jurisdiction of its incorporation or
organization and the jurisdictions in which it is qualified to transact
business as a foreign corporation, or otherwise, and (2) the authorized,
issued and outstanding shares or interests of each class of equity Securities
of the Company, the Borrower and the Subsidiaries of the Borrower, and (3) the
ownership interest of the Borrower, the Company and the Subsidiaries of the
Borrower in all Joint Ventures. None of such issued and outstanding Securities
is subject to any vesting, redemption, or repurchase agreement, and there are
no warrants or options (other than Permitted Securities options) outstanding
with respect to such Securities, except as noted on Schedule 7.1-C. The
outstanding Capital Stock of the Company is duly authorized, validly issued,
fully paid and nonassessable and the outstanding Securities of the Borrower
and its Subsidiaries are duly authorized and validly issued. Attached hereto
as part of Schedule 7.1-C is a true, accurate and complete copy of the
Borrower Partnership Agreement as in effect on the Closing Date and the
Borrower Partnership Agreement has not been amended, supplemented, replaced,
restated or otherwise modified in any respect since the Closing Date, except
as otherwise permitted hereby. Borrower shall update Schedule 7.1-C as of the
first day of each fiscal quarter, and shall deliver the same together with the
Quarterly Compliance Certificates, to the extent required, in order to keep
said Schedule true and correct.
(ii) Except where failure would not have a Material Adverse
Effect, each of the Subsidiaries of the Borrower: (A) is a corporation,
limited liability company or partnership, as indicated on Schedule 7.1-C, duly
organized or formed, validly existing and, if applicable, in good standing
under the laws of the jurisdiction of its organization, (B) is duly qualified
to do business and, if applicable, is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing would
have a Material Adverse Effect, and (C) has all requisite power and authority
to own, operate and encumber its Property and to conduct its business as
presently conducted and as proposed to be conducted hereafter.
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(iii) As to each Guarantor, a provision similar, as applicable
to (a), (b) and (c) above shall be included in each such Subsidiary's
Guaranty, and the Borrower shall be deemed to make for itself and on behalf of
such Subsidiary a representation as to such provisions.
(d) No Conflict. The execution, delivery and performance of
each of the Loan Documents to which the Borrower, the Company or any Guarantor
is a party, and the consummation of the transactions expressly contemplated
thereby respectively, do not and will not (i) conflict with the Organizational
Documents of the Borrower, the Company or any Guarantor, (ii) conflict with,
result in a breach of or constitute (with or without notice or lapse of time
or both) a default under any Requirement of Law or material Contractual
Obligation of the Borrower, the Company or any Guarantor, or require
termination of any such material Contractual Obligation which would subject
the Administrative Agent or any of the other Lenders to any liability, (iii)
result in or require the creation or imposition of any Lien whatsoever upon
any of the Property or assets of the Borrower, the Company or any Guarantor,
or (iv) require any approval of shareholders of the Company (other than such
approvals that have been obtained and are in full force and effect).
(e) Governmental Consents. The execution, delivery and
performance of each of the Loan Documents to which the Borrower, the Company
or any Guarantor is a party and the consummation of the transactions expressly
contemplated thereby do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by any
Governmental Authority, except filings, consents or notices which have been
made, obtained or given.
(f) Governmental Regulation. None of the Borrower, the Company
or the Guarantors is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or
the Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness as contemplated by
this Agreement.
(g) Financial Position. Complete and accurate copies of the
following financial statements and materials have been delivered to the
Administrative Agent: annual unaudited financial statements of the Borrower,
annual audited financial statements of the Company for the fiscal year ended
December 31, 2004 and unaudited financial statements of the Company for the
fiscal quarter ended March 31, 2005. All annual financial statements of the
Borrower shall be accompanied by an Officer's Certificate of the Borrower, and
shall be certified by the Chief Financial Officer of the Borrower as fairly
presenting in all material respects the financial position of the Borrower.
All financial statements included in such materials were prepared in all
material respects in conformity with GAAP, except as otherwise noted therein,
and fairly present in all material respects the respective consolidated
financial positions as of the date referred to therein, and the consolidated
results of operations and cash flows for each of the periods covered thereby
of the Borrower and the Company. Neither the Borrower nor the Company has any
Contingent Obligation, contingent liability or liability for any taxes,
long-term leases or commitments not reflected in its financial statements
delivered to the Administrative Agent on or prior to the Closing Date or
otherwise disclosed to the Administrative Agent and the Lenders in writing on
or prior to the Closing Date, which will have a Material Adverse Effect.
(h) Indebtedness. Schedule 7.1-H sets forth, as of March 31,
2005, all Indebtedness for borrowed money of each of the Borrower, the Company
and their respective Subsidiaries and, except as set forth on Schedule 7.1-H,
there are no defaults in the payment of
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principal of or interest on any such Indebtedness and no payments thereunder
have been deferred or extended beyond their stated maturity and there has been
no material change in the type or amount of such Indebtedness (except for the
repayment of certain Indebtedness) since March 31, 2005.
(i) Litigation; Adverse Effects. Except as set forth in
Schedule 7.1-I, as of the Closing Date, there is no action, suit, proceeding,
investigation or arbitration before or by any Governmental Authority or
private arbitrator pending or, to the knowledge of the Borrower, threatened
against the Company, the Borrower or any of their respective Subsidiaries, or
any Property of any of them (i) challenging the validity or the enforceability
of any of the Loan Documents, (ii) which is reasonably likely to result in any
Material Adverse Effect, or (iii) under the Racketeering Influenced and
Corrupt Organizations Act or any similar federal or state statute where such
Person is a defendant in a criminal indictment that provides for the
forfeiture of assets to any Governmental Authority as a potential criminal
penalty. There is no material loss contingency within the meaning of GAAP
which has not been reflected in the consolidated financial statements of the
Company and the Borrower. None of the Company, the Borrower or any Subsidiary
of the Borrower is (A) in violation of any applicable Requirements of Law
which violation will have or is reasonably likely to have a Material Adverse
Effect, or (B) in default with respect to any final judgment, writ,
injunction, restraining order or order of any nature, decree, rule or
regulation of any court or Governmental Authority which will have a Material
Adverse Effect.
(j) No Material Adverse Effect. Since December 31, 2004, there
has occurred no event which has had a Material Adverse Effect.
(k) Intentionally Omitted.
(l) Payment of Taxes. All material tax returns, reports and
similar statements or filings of the Company, the Borrower and their
respective Subsidiaries required to be filed have been timely filed (or
extensions to file have been obtained), and, except for Customary Permitted
Liens, all material taxes, assessments, fees and other charges of Governmental
Authorities thereupon and upon or relating to their respective Properties,
assets, receipts, sales, use, payroll, employment, income, licenses and
franchises which are shown in such returns or reports to be due and payable
have been paid, except to the extent (i) such taxes, assessments, fees and
other charges of Governmental Authorities are being contested in good faith by
an appropriate proceeding diligently pursued as permitted by the terms of
Section 9.4 and (ii) such taxes, assessments, fees and other charges of
Governmental Authorities pertain to Property of the Borrower or any of its
Subsidiaries and the non-payment of the amounts thereof would not,
individually or in the aggregate, result in a Material Adverse Effect. All
other material taxes (including, without limitation, real estate taxes),
assessments, fees and other governmental charges upon or relating to the
respective Properties of the Borrower and its Subsidiaries which are due and
payable have been paid, except for Customary Permitted Liens and except to the
extent described in clauses (i) and (ii) hereinabove. The Borrower has no
knowledge of any proposed tax assessment against the Borrower, any of its
Subsidiaries, or any of the Projects that will have or is reasonably likely to
have a Material Adverse Effect.
(m) Performance. To the knowledge of the Borrower, neither the
Company, the Borrower nor any of their Subsidiaries has received any written
notice or citation, nor has actual knowledge, that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation applicable to it,
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or (ii) any condition exists which, with the giving of notice or the lapse of
time or both, would constitute a default with respect to any such Contractual
Obligation; in each case, except where such default or defaults, if any, will
not have a Material Adverse Effect.
(n) Disclosure. The representations and warranties of the
Borrower and the Guarantors contained in the Loan Documents, and all
certificates and other documents delivered to the Administrative Agent or any
Lender pursuant to the terms thereof, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, taken as a whole, not misleading. Notwithstanding the
foregoing, the Lenders acknowledge that the Borrower shall not have liability
under this clause (n) with respect to its projections of future events or for
any financial projections. (o) Requirements of Law. Each of the Borrower and
each of its Subsidiaries is in compliance with all Requirements of Law
applicable to it and its respective businesses and Properties, in each case
where the failure to so comply individually or in the aggregate will have a
Material Adverse Effect.
(p) Environmental Matters.
(i) Except as disclosed on Schedule 7.1-P (the Borrower shall
update Schedule 7.1-P as of the first day of each fiscal quarter, and
deliver the same together with the Quarterly Compliance Certificates,
to the extent required, in order to keep said Schedule true and
correct):
(A) the operations of the Borrower, each of its
Subsidiaries, and their respective Properties comply with all
applicable Environmental, Health or Safety Requirements of Law,
except to the extent any failure to do so would not have a
Material Adverse Effect;
(B) the Borrower and each of its Subsidiaries have
obtained all material environmental, health and safety Permits
necessary for their respective operations, and all such Permits
are in good standing and the holder of each such Permit is
currently in compliance with all terms and conditions of such
Permits, except to the extent any failure to do so would not
have a Material Adverse Effect;
(C) to the knowledge of the Borrower, none of the
Borrower, its Subsidiaries or any of their respective present or
past Properties or operations are subject to or are the subject
of any investigation of any Governmental Authority, judicial or
administrative proceeding, order, judgment or decree,
negotiations, agreement or settlement respecting (I) any
Remedial Action, (II) any Claims or Liabilities and Costs
arising from the Release or threatened Release of a Contaminant
into the environment, or (III) any violation of or liability
under any Environmental, Health or Safety Requirement of Law,
except to the extent none of the foregoing would have a Material
Adverse Effect;
(D) none of Borrower or any of its Subsidiaries has filed
any notice under any applicable Requirement of Law (I) reporting
a Release of a Contaminant; (II) indicating past or present
treatment, storage or disposal of a
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hazardous waste, as that term is defined under 40 C.F.R. Part
261 or any state equivalent; or (III) reporting a violation of
any applicable Environmental, Health or Safety Requirement of
Law with respect to any of the foregoing, the substance of which
would have a Material Adverse Effect;
(E) none of the Borrower's or any of its Subsidiaries'
present or past Property is listed or, to the knowledge of the
Borrower, proposed for listing on the National Priorities List
("NPL") pursuant to CERCLA or on the Comprehensive Environmental
Response Compensation Liability Information System List
("CERCLIS") or any similar state list of sites requiring
Remedial Action;
(F) to the knowledge of the Borrower, none of the
Borrower or any of its Subsidiaries has sent or directly
arranged for the transport of any waste to any site listed or
proposed for listing on the NPL, CERCLIS or any similar state
list;
(G) to the best of the Borrower's knowledge, there is not
now, and to the Borrower's knowledge there has never been, on or
in any Project (I) any treatment, recycling, storage away from
the site of generation or disposal of any hazardous waste, as
that term is defined under 40 C.F.R. Part 261 or any state
equivalent, (II) any solid waste management facility, (III) any
underground storage tanks the presence or use of which is in
violation of applicable Environmental, Health or Safety
Requirements of Law, (IV) any asbestos-containing material
which, in its present state, such Person has any reason to
believe could subject such Person or its Property to Liabilities
and Costs arising out of or relating to environmental, health or
safety matters that would result in a Material Adverse Effect;
or (V) any polychlorinated biphenyls (PCB) used in hydraulic
oils, electrical transformers or other Equipment, which, in any
such case, would subject the Borrower or its Subsidiaries or
their respective Properties to Liabilities and Costs arising out
of or relating to environmental, health or safety matters that
would result in a Material Adverse Effect;
(H) to the knowledge of the Borrower, none of the
Borrower or any of its Subsidiaries has received any notice or
Claim to the effect that any of such Persons is or may be liable
to any Person as a result of the Release or threatened Release
of a Contaminant into the environment which would result in a
Material Adverse Effect;
(I) none of the Borrower or any of its Subsidiaries has
any contingent liability in connection with any Release or
threatened Release of any Contaminants into the environment
which will result in a Material Adverse Effect;
(J) no Environmental Lien has attached to any Property of
the Borrower or any of its Subsidiaries (other than those
otherwise permitted hereunder) or which do not constitute an
Event of Default; and
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(K) no Property of the Borrower or any of its
Subsidiaries is subject to any Environmental Property Transfer
Act, or to the extent such acts are applicable to any such
Property, the Borrower and/or such Subsidiary whose Property is
subject thereto has complied in all material respects with the
requirements of such acts.
(q) ERISA. As of the date hereof, neither the Borrower nor any
ERISA Affiliate maintains or contributes to any Benefit Plan or Multiemployer
Plan other than those listed on Schedule 7.1-Q hereto. Each Plan which is
intended to be qualified under Section 401(a) of the Internal Revenue Code as
currently in effect has been determined by the IRS to be so qualified, and
each trust related to any such Plan has been determined to be exempt from
federal income tax under Section 501(a) of the Internal Revenue Code as
currently in effect. Except as disclosed in Schedule 7.1-Q, neither the
Borrower nor any of its Subsidiaries maintains or contributes to any employee
welfare benefit plan within the meaning of Section 3(1) of ERISA that provides
benefits to employees after termination of employment other than as required
by Section 601 of ERISA. The Borrower and each of its Subsidiaries is in
compliance in all material respects with the responsibilities, obligations and
duties imposed on it by ERISA, the Internal Revenue Code and regulations
promulgated thereunder with respect to all Plans. No Benefit Plan has incurred
any accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA
and 412 (a) of the Internal Revenue Code) whether or not waived. Neither the
Borrower nor any ERISA Affiliate nor any fiduciary of any Plan which is not a
Multiemployer Plan (i) has engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Internal Revenue Code or
(ii) has taken or failed to take any action which would constitute or result
in an ERISA Termination Event. Neither the Borrower nor any ERISA Affiliate is
subject to any liability under Sections 4063, 4064, or 4204 of ERISA which
would have a Material Adverse Effect. Neither the Borrower nor any ERISA
Affiliate is subject to any liability under Sections 4069 or 4212 (c) of ERISA
or has incurred any liability to the PBGC which remains outstanding other than
the payment of premiums, and there are no premium payments which have become
due which are unpaid. Schedule B to the most recent annual report filed with
the IRS with respect to each Benefit Plan has been furnished to the
Administrative Agent and is complete and accurate in all material respects.
Since the date of each such Schedule B, there has been no material adverse
change in the funding status or financial condition of the Benefit Plan
relating to such Schedule B. Neither the Borrower nor any ERISA Affiliate has
(i) failed to make a required contribution or payment to a Multiemployer Plan
or (ii) made a complete or partial withdrawal under Sections 4203 or 4205 of
ERISA from a Multiemployer Plan which would have a Material Adverse Effect.
Neither the Borrower, nor any ERISA Affiliate has failed to make a required
installment or any other required payment under Section 412 of the Internal
Revenue Code on or before the due date for such installment or other payment.
Neither the Borrower nor any ERISA Affiliate is required to provide security
to a Benefit Plan under Section 401(a)(29) of the Internal Revenue Code due to
a Benefit Plan amendment that results in an increase in current liability for
the plan year. Except as disclosed on Schedule 7.1-Q, which shall be updated
by Borrower as of the first day of each fiscal quarter, to the extent
required, neither the Borrower nor any of its Subsidiaries has, by reason of
the transactions contemplated hereby, any obligation to make any payment to
any employee pursuant to any Plan or existing contract or arrangement.
(r) Securities Activities. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock except as described on Schedule 7.l-R.
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(s) Solvency. After giving effect to the Term Loans to be made
on the Funding Date, the Acquisition, and the disbursement of the proceeds of
such Term Loan pursuant to the Borrower's instructions, each of the Borrower
and each Guarantor is Solvent.
(t) Insurance. Schedule 7.1-T accurately sets forth as of the
Closing Date all insurance policies and programs currently in effect with
respect to the respective Property and assets and business of the Borrower and
its Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, and (v) the expiration date thereof. The Borrower has
delivered to the Administrative Agent certificates of insurance or other
satisfactory evidence of all insurance policies set forth on Schedule 7.1-T.
Such insurance policies and programs or their replacements obtained in
compliance with Section 9.5 are currently in full force and effect, in
compliance with the requirements of Section 9.5 hereof and provide coverage
against such casualties and contingencies as are commercially reasonable and
in accordance with the customary and general practices of businesses having
similar operations and real estate portfolios in similar geographic areas and
are in amounts, containing such terms, in such forms and for such periods as
are reasonable and prudent for such businesses. Borrower shall update Schedule
7.1-T, to the extent required, in order to keep said Schedule true and
correct.
(u) REIT Status. The Company qualifies as a REIT under the
Internal Revenue Code.
(v) Ownership of Projects, Joint Ventures and Property.
Ownership of all wholly owned Projects, Joint Ventures and other Property of
the Consolidated Businesses is held by the Borrower and its Subsidiaries and
is not held directly by the Company.
(w) Title to Properties. The Borrower, the Guarantors and their
respective Subsidiaries that own Real Property each has good title to all of
its respective Real Property purported to be owned by it, including, without
limitation, that:
(a) Either (i) the Borrower or (ii) a Guarantor is the owner of
or the holder of a fee or ground leasehold interest (under an Eligible Ground
Lease) in the Unencumbered Projects and Unencumbered New York City Assets
which are wholly-owned or ground-leased by the Borrower and the Consolidated
Businesses, free from any Lien, except for Customary Permitted Liens, or
preferred equity interest.
(b) The Company, the Borrower and their Consolidated
Subsidiaries will, as of the Closing Date, own all of the assets as reflected
in the financial statements of the Borrower and the Company described in
Section 7.1(g) or acquired since the date of such financial statements (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date).
ARTICLE VIII.
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Term Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities pursuant to Section 14.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent
thereto:
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8.1. Borrower Accounting Practices. The Borrower shall maintain, and
cause each of its consolidated Subsidiaries to maintain, a system of
accounting established and administered in accordance with sound business
practices to permit preparation of consolidated financial statements in
conformity with GAAP.
8.2. Financial Reports. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders):
(a) Quarterly Reports.
(i) Borrower Quarterly Financial Reports. As soon as
practicable, and in any event within forty-five (45) days after the
end of each fiscal quarter in each Fiscal Year (other than the last
fiscal quarter in each Fiscal Year), a consolidated balance sheet of
the Borrower and the related consolidated statements of income and
cash flow of the Borrower (to be prepared and delivered quarterly in
conjunction with the other reports delivered hereunder at the end of
each fiscal quarter) for each such fiscal quarter, and, in
comparative form, the corresponding figures for the corresponding
dates and periods of the previous Fiscal Year, certified by an
Authorized Financial Officer of the Borrower as fairly presenting in
all material respects the consolidated financial position of the
Borrower as of the dates indicated and the consolidated results of
its operations and cash flow for the months indicated in accordance
with GAAP, subject to normal adjustments.
(ii) Company Quarterly Financial Reports. As soon as
practicable, and in any event within forty-five (45) days after the
end of each fiscal quarter in each Fiscal Year (other than the last
fiscal quarter in each Fiscal Year), the Financial Statements of the
Company and its consolidated Subsidiaries on Form 10-Q as at the end
of such period and a report setting forth in comparative form the
corresponding figures for the corresponding dates and period of the
previous Fiscal Year, certified by an Authorized Financial Officer of
the Company as fairly presenting in all material respects the
consolidated financial position of the Company and its consolidated
Subsidiaries as at the date indicated and the consolidated results of
their operations and cash flow for the period indicated in accordance
with GAAP, subject to normal adjustments.
(iii) Quarterly Compliance Certificates. Together with each
delivery of any quarterly report pursuant to paragraph (a)(i) of this
Section 8.2, Officer's Certificates of the Borrower and the Company
in the form of Exhibit F hereto (the "Quarterly Compliance
Certificates"), signed by the Borrower's and the Company's respective
Authorized Financial Officers representing and certifying (1) that
the Authorized Financial Officer signatory thereto has reviewed the
terms of the Loan Documents, and has made, or caused to be made under
his/her supervision, a review in reasonable detail of the
consolidated financial condition of the Company and its Consolidated
Subsidiaries, for the fiscal quarter covered by such reports, that
such review has not disclosed the existence during or at the end of
such fiscal quarter, and that such officer does not have knowledge of
the existence as at the date of such Officer's Certificate, of an
Event of Default or Potential Event of Default or mandatory
prepayment event, or, if any such condition or event existed or
exists, the nature and period of existence thereof and what action
the Company and/or the Borrower or any of their Subsidiaries has
taken, is taking and proposes to take with respect thereto; (2) the
calculations in the form of Exhibit G hereto for the period then
ended which demonstrate whether there has been compliance with the
covenants and financial ratios set forth in Sections 9.9, 9.11, 10.2,
10.6, 10.7,
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10.11, and 10.12 hereof and, when applicable, that no Event of
Default described in Section 11.1 exists, (3) a schedule of the
Borrower's outstanding Indebtedness, including the amount, maturity,
interest rate and amortization requirements, as well as such other
information regarding such Indebtedness as may be reasonably
requested by the Administrative Agent, (4) a schedule of Total
Adjusted EBITDA, and (5) a schedule of Adjusted Unencumbered NOI.
(b) Annual Reports.
(i) Borrower Financial Statements. As soon as practicable, and
in any event within ninety (90) days after the end of each Fiscal
Year, the Financial Statements of the Borrower and its Subsidiaries
as at the end of such Fiscal Year, accompanied by an Officer's
Certificate of the Borrower, signed by the Chief Financial Officer of
the Borrower, that such Financial Statements fairly present in all
material respects the consolidated financial position of the Borrower
and its Subsidiaries as of the dates indicated and the results of
their operations and cash flow for the periods indicated in
conformity with GAAP consistently applied, and which Officer's
Certificate shall explain any inconsistencies between the Financial
Statements of the Borrower and the Financial Statements of the
Company.
(ii) Company Financial Statements. As soon as practicable, and
in any event within ninety (90) days after the end of each Fiscal
Year, (i) the Financial Statements of the Company and its
consolidated Subsidiaries on Form 10-K as at the end of such Fiscal
Year and a report setting forth in comparative form the corresponding
figures from the consolidated Financial Statements of the Company and
its Subsidiaries as of the end of and for the prior Fiscal Year; (ii)
a report with respect thereto of Ernst & Young LLP or other
independent certified public accountants acceptable to the
Administrative Agent (it being understood that any "Big Four"
certified public accountants are acceptable to the Administrative
Agent), which report shall be unqualified and shall state that such
financial statements fairly present the consolidated financial
position of the Company and its consolidated Subsidiaries as at the
dates indicated and the results of their operations and cash flow for
the periods indicated in conformity with GAAP (except for changes
with which Ernst & Young LLP or any such other independent certified
public accountants, if applicable, shall concur and which shall have
been disclosed in the notes to the financial statements) (which
report shall be subject to the confidentiality limitations set forth
herein); and (iii) in the event that the report referred to in clause
(ii) above is qualified, a copy of the management letter or any
similar report delivered to the Company or to any officer or employee
thereof by such independent certified public accountants in
connection with such financial statements. The Administrative Agent
and each Lender (through the Administrative Agent) may, with the
consent of the Company (which consent shall not be unreasonably
withheld), communicate directly with such accountants, with any such
communication to occur together with a representative of the Company,
at the expense of the Administrative Agent (or the Lender requesting
such communication), upon reasonable notice and at reasonable times
during normal business hours.
(iii) Annual Compliance Certificates. Together with each
delivery of any annual report pursuant to clauses (i) and (ii) of
this Section 8.2(b), Officer's Certificates of the Borrower and the
Company in the form of Exhibit F hereto (the "Annual Compliance
Certificates" and, collectively with the Quarterly Compliance
Certificates,
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the "Compliance Certificates"), signed by the Borrower's and the
Company's respective Authorized Financial Officers, representing and
certifying (1) that the officer signatory thereto has reviewed the
terms of the Loan Documents, and has made, or caused to be made under
his/her supervision, a review in reasonable detail of the
consolidated financial condition of the Company and its consolidated
Subsidiaries, for the accounting period covered by such reports, that
such review has not disclosed the existence at the end of such
accounting period, and that such officer does not have knowledge of
the existence as at the date of such Officer's Certificate, of an
Event of Default or Potential Event of Default or mandatory
prepayment event, or, if any such condition or event existed or
exists, the nature and period of existence thereof and what action
the Company and/or the Borrower or any of their Subsidiaries has
taken, is taking and proposes to take with respect thereto; (2) the
calculations in the form of Exhibit G hereto for the period then
ended which demonstrate whether there has been compliance with the
covenants and financial ratios set forth in Sections 9.9, 9.11, 10.2,
10.6, 10.7, 10.11, and 10.12 hereof and, when applicable, that no
Event of Default described in Section 11.1 exists, (3) a schedule of
the Borrower's outstanding Indebtedness including the amount,
maturity, interest rate and amortization requirements, as well as
such other information regarding such Indebtedness as may be
reasonably requested by the Administrative Agent, (4) a schedule of
Total Adjusted EBITDA and (5) a schedule of Adjusted Unencumbered
NOI.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year,
a written report, in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or
against any tenant of any of the Projects, which tenant occupies
three and one half percent (3.5%) or more of the gross leasable area
in the Projects in the aggregate. The Borrower shall deliver to the
Administrative Agent and the Lenders, immediately upon the Borrower's
learning thereof, of any bankruptcy proceedings filed by or against,
or the cessation of business or operations of, any tenant of any of
the Projects which tenant occupies three and one half percent (3.5%)
or more of the gross leasable area in the Projects in the aggregate.
(v) Update of Schedule 7.1-C. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year,
the Borrower shall deliver an update of Schedule 7.1-C.
8.3. Events of Default. Promptly upon the Borrower obtaining
knowledge (a) of any condition or event which constitutes an Event of Default
or Potential Event of Default; (b) that any Person has given any notice to the
Borrower or any Subsidiary of the Borrower or taken any other action with
respect to a claimed default or event or condition of the type referred to in
Section 11.1(e); or (c) of any condition or event which has a Material Adverse
Effect, the Borrower shall deliver to the Administrative Agent (with copies
for each of the Lenders) an Officer's Certificate specifying (i) the nature
and period of existence of any such claimed default, Event of Default,
Potential Event of Default, condition or event, (ii) the notice given or
action taken by such Person in connection therewith, and (iii) what action the
Borrower has taken, is taking and proposes to take with respect thereto.
8.4. Lawsuits. (i) Promptly upon the Borrower's obtaining knowledge
of the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries not previously disclosed pursuant to Section 7.1(i),
which action, suit, proceeding, governmental investigation or
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arbitration exposes, or in the case of multiple actions, suits, proceedings,
governmental investigations or arbitrations arising out of the same general
allegations or circumstances which expose, in the Borrower's reasonable
judgment, the Borrower or any of its Subsidiaries to liability in an amount
aggregating $1,000,000 or more and is not covered by the Borrower's or such
Subsidiary's insurance, the Borrower shall give written notice thereof to the
Administrative Agent (with copies for each of the Lenders) and provide such
other information as may be reasonably available to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters; (ii) as soon as
practicable and in any event within forty-five (45) days after the end of each
fiscal quarter of the Borrower, the Borrower shall provide a written quarterly
report to the Administrative Agent and the Lenders covering the institution
of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration in an amount equal to or in excess of $50,000,000
(to the extent not previously reported) against or affecting the Borrower or
any of its Subsidiaries or any Property of the Borrower or any of its
Subsidiaries not previously disclosed by the Borrower to the Administrative
Agent and the Lenders, and shall provide such other information at such time
as may be reasonably available to enable each Lender and the Administrative
Agent and its counsel to evaluate such matters; and (iii) in addition to the
requirements set forth in clauses (i) and (ii) of this Section 8.4, the
Borrower upon request of the Administrative Agent or the Requisite Lenders
shall promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) or (ii) above and provide such other
information as may be reasonably requested and available to it to enable each
Lender and the Administrative Agent and its counsel to evaluate such matters.
Notwithstanding the foregoing, the Borrower shall not be required to disclose
any information which is subject to the attorney-client privilege.
8.5. Insurance. As soon as practicable and in any event by January
31st of each calendar year, the Borrower shall deliver to the Administrative
Agent (with copies for each of the Lenders) (i) a report in form and substance
reasonably satisfactory to the Administrative Agent, outlining all insurance
coverage maintained as of the date of such report by the Borrower and its
Subsidiaries and the duration of such coverage and (ii) an Officer's
Certificate signed by an Authorized Financial Officer of the Borrower
certifying that all premiums with respect to such coverage have been paid when
due.
8.6. ERISA Notices. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders),
at the Borrower's expense, the following information and notices as soon as
reasonably possible, and in any event:
(a) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know that an ERISA Termination Event
has occurred, a written statement of an Authorized Financial Officer of the
Borrower describing such ERISA Termination Event and the action, if any, which
the Borrower or any ERISA Affiliate has taken, is taking or proposes to take
with respect thereto, and when known, any action taken or threatened by the
IRS, DOL or PBGC with respect thereto;
(b) within fifteen (15) Business Days after the Borrower knows
or has reason to know that a non-exempt prohibited transaction (as defined in
Sections 406 of ERISA and Section 4975 of the Internal Revenue Code) has
occurred with respect to the Borrower, any ERISA Affiliate or any Plan, a
statement of an Authorized Financial Officer of the Borrower describing such
transaction with respect to the Borrower, any ERISA Affiliate or any Plan and
the action which the Borrower or any ERISA Affiliate has taken, is taking or
proposes to take with respect thereto;
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(c) within fifteen (15) Business Days after the filing of the
same with the DOL, IRS or PBGC, copies of each annual report (Form 5500
series), including Schedule B thereto, filed with respect to each Benefit
Plan;
(d) within fifteen (15) Business Days after receipt by the
Borrower or any ERISA Affiliate of each actuarial report for any Benefit Plan
or Multiemployer Plan and each annual report for any Multiemployer Plan,
copies of each such report;
(e) within fifteen (15) Business Days after the filing of the
same with the IRS, a copy of each funding waiver request filed with respect to
any Benefit Plan and all written communications received by the Borrower or
any ERISA Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence of
any material increase in the benefits of any existing Benefit Plan or
Multiemployer Plan or the establishment of any new Benefit Plan or the
commencement of contributions to any Benefit Plan or Multiemployer Plan to
which the Borrower or any ERISA Affiliate to which the Borrower or any ERISA
Affiliate was not previously contributing, notification of such increase,
establishment or commencement;
(g) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate receives notice of the PBGC's intention to terminate a Benefit
Plan or to have a trustee appointed to administer a Benefit Plan, copies of
each such notice;
(h) within fifteen (15) Business Days after the Borrower or any
of its Subsidiaries receives notice of any unfavorable determination letter
from the IRS regarding the qualification of a Plan under Section 401(a) of the
Internal Revenue Code, copies of each such letter to the extent any of the
foregoing would have a Material Adverse Effect;
(i) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(j) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due
date for such installment or payment which failure has not been cured, a
notification of such failure; and
(k) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know (i) a Multiemployer Plan has been
terminated, (ii) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (iii) the PBGC has instituted or
has given written notice that it will institute proceedings under Section 4042
of ERISA to terminate a Multiemployer Plan, notification of such termination,
intention to terminate, or institution of proceedings.
For purposes of this Section 8.6, the Borrower and any ERISA
Affiliate shall be deemed to know all facts known by the "Administrator" of
any Plan of which the Borrower or any ERISA Affiliate is the plan sponsor.
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8.7. Environmental Notices. The Borrower shall notify the
Administrative Agent (with copies for each of the Lenders) in writing,
promptly upon any officer of the Borrower responsible for the environmental
matters at any Property of the Borrower learning thereof, of any of the
following (together with any material documents and correspondence received or
sent in connection therewith):
(a) notice or claim to the effect that the Borrower or any of
its Subsidiaries is or may be liable to any Person as a result of the Release
or threatened Release of any Contaminant into the environment, if such
liability would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is
subject to investigation by any Governmental Authority evaluating whether any
Remedial Action is needed to respond to the Release or threatened Release of
any Contaminant into the environment which would have a Material Adverse
Effect;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to which such
Environmental Lien relates would result in a Material Adverse Effect;
(d) notice of violation by the Borrower or any of its
Subsidiaries of any Environmental, Health or Safety Requirement of Law which
violation would have a Material Adverse Effect;
(e) commencement or written threat of any judicial or
administrative proceeding alleging a violation by the Borrower or any of its
Subsidiaries of any Environmental, Health or Safety Requirement of Law, which
would result in a Material Adverse Effect; or
(f) any proposed acquisition of stock, assets, real estate, or
leasing of Property by the Borrower or any of its Subsidiaries that would
subject the Borrower or any of its Subsidiaries to environmental, health or
safety Liabilities and Costs which would result in a Material Adverse Effect.
8.8. Labor Matters. The Borrower shall notify the Administrative
Agent (with copies for each of the Lenders) in writing, promptly upon the
Borrower's learning thereof, of any labor dispute to which the Borrower or any
of its Subsidiaries is reasonably expected to become a party (including,
without limitation, any strikes, lockouts or other disputes relating to any
Property of such Persons and other facilities) which would result in a
Material Adverse Effect.
8.9. Notices of Asset Sales and/or Acquisitions. The Borrower shall
deliver to the Administrative Agent and the Lenders written notice of each of
the following events affecting the Company, the Borrower or their respective
Subsidiaries not less than five (5) Business Days prior to the occurrence
thereof: (a) a sale, transfer or other disposition of (i) an Unencumbered
Project or Unencumbered New York City Asset or (ii) other assets, in a single
transaction or series of related transactions within the two preceding
calendar quarter periods, for consideration in excess of $50,000,000, (b) an
acquisition of assets, in a single transaction or series of related
transactions within the two preceding calendar quarter period, for
consideration in excess of $50,000,000, (c) the grant of a Lien with respect
to (i) an Unencumbered Project or Unencumbered New York City Asset or (ii)
other assets, in a single transaction or series of related transactions within
the two preceding calendar quarter periods, for consideration in excess of
$50,000,000 and (d) a release
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from an escrow account of the proceeds of a qualified, deferred exchange under
ss.1031 of the Internal Revenue Code. In addition, simultaneously with
delivery of any such notice, the Borrower shall deliver to the Administrative
Agent a certificate of an Authorized Officer certifying that Borrower is in
compliance with this Agreement and the other Loan Documents both on a
historical basis and on a pro forma basis, exclusive of the property sold,
transferred and/or encumbered and inclusive of the property to be acquired or
the indebtedness to be incurred.
To the extent such proposed transaction would result in a failure to comply
with the covenants set forth herein, the Borrower shall (i) apply the proceeds
of such transaction (together with such additional amounts as may be
required), to prepay the Obligations in an amount, as determined by the
Administrative Agent, equal to that which would be required to reduce the
Obligations so that Borrower will be in compliance with the covenants set
forth herein upon the consummation of the contemplated transaction, to the
extent such proceeds are not applied pursuant to clauses (ii) or (iii); (ii)
to the extent applicable, segregate the net proceeds of such transaction in an
escrow account with the Administrative Agent or with a financial institution
reasonably acceptable to the Administrative Agent and apply such net proceeds
solely to a qualified, deferred exchange under ss.1031 of the Internal Revenue
Code that results in compliance with the covenants set forth herein upon the
consummation of the contemplated transaction, or with the prior written
approval of the Requisite Lenders to another use, to the extent such proceeds
are not applied pursuant to clauses (i) or (iii); or (iii) to the extent
applicable, complete an exchange of such assets for other real property of
equivalent value under ss.1031 of the Internal Revenue Code that results in
compliance with the covenants set forth herein upon the consummation of the
contemplated transaction, to the extent such proceeds are not applied pursuant
to clauses (i) or (ii).
8.10. Notices of Joint Ventures. The Borrower shall deliver to the
Administrative Agent and the Lenders written notice of each of the following
not less than two (2) Business Days prior to the occurrence thereof: (a) the
acquisition of an interest in a Joint Venture in excess of $5,000,000, (b) the
investment of an amount in excess of $5,000,000 in a Joint Venture of which
the Administrative Agent and the Lenders have not previously received notice,
and (c) the sale of an interest in a Subsidiary that results in the same
becoming a Joint Venture. Simultaneously with the delivery of the Compliance
Certificates, the Borrower shall deliver to the Administrative Agent and the
Lenders written notice of the formation of any other Joint Venture.
8.11. Tenant Notifications. The Borrower shall promptly notify the
Administrative Agent upon obtaining knowledge of the bankruptcy or cessation
of operations of any tenant to which greater than three and one half percent
(3.5%) of the Borrower's share of annual base rent (as reported in the
Borrower's most recent quarterly financial statements) is attributable to such
tenant.
8.12. Other Reports. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders)
copies of all financial statements and reports, if any, sent or made available
generally by the Company and/or the Borrower to its respective Securities
holders, including, without limitation, supplemental quarterly forms, or (to
the extent not otherwise provided hereunder), all press releases made
available generally by the Company and/or the Borrower or any of its
Subsidiaries to the public concerning material adverse developments in the
business of the Company, the Borrower or any such Subsidiary and all material
notifications received by the Company, the Borrower or their Subsidiaries
pursuant to the Securities Exchange Act and the rules promulgated thereunder.
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8.13. Other Information. Promptly upon receiving a request therefor
from the Administrative Agent or the Arranger, the Borrower shall prepare and
deliver to the Administrative Agent (with copies for each of the Lenders) such
other information with respect to the Company, the Borrower, or any of their
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent or the Arranger, including without limitation, rent
rolls, title reports, environmental site assessments, and tax returns.
ARTICLE IX.
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Term Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities pursuant to Section 14.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent:
9.1. Existence. Etc. The Borrower shall, and shall cause each of its
Subsidiaries and the Company to, at all times maintain its corporate existence
or existence as a limited partnership, limited liability company or joint
venture, as applicable, and preserve and keep, or cause to be preserved and
kept, in full force and effect its rights and franchises material to its
businesses, except where the loss or termination of such rights and franchises
will not have a Material Adverse Effect.
9.2. Powers; Conduct of Business. The Borrower shall remain
qualified, and shall cause each of its Subsidiaries and the Company to qualify
and remain qualified, to do business and maintain its good standing in each
jurisdiction in which the nature of its business and the ownership of its
Property requires it to be so qualified and in good standing if the failure to
do so will have a Material Adverse Effect.
9.3. Compliance with Laws. Etc. The Borrower shall, and shall cause
each of its Subsidiaries and the Company to, (a) comply with all Requirements
of Law and all restrictive covenants affecting such Person or the business,
Property or operations of such Person, and (b) obtain and maintain as needed
all Permits necessary for its operations (including, without limitation, the
operation of the Projects) and maintain such Permits in good standing, except
where noncompliance with either clause (a) or (b) above will not have a
Material Adverse Effect.
9.4. Payment of Taxes and Claims. (a) The Borrower shall pay, and
cause each of its Subsidiaries and the Company to pay, (i) all material taxes,
assessments and other governmental charges imposed upon it or on any of its
Property or assets or in respect of any of its franchises, licenses, receipts,
sales, use, payroll, employment, business, income or Property before any
penalty or interest accrues thereon, and (ii) all material Claims (including,
without limitation, claims for labor, services, materials and supplies) for
sums which have become due and payable and which by law have or may become a
Lien (other than a Lien permitted by Section 10.2 or a Customary Permitted
Lien for property taxes and assessments not yet due upon any of the
Borrower's, the Company's or any of the Borrower's Subsidiaries' Property,
prior to the time when any penalty or fine shall be incurred with respect
thereto; provided, however, that no such taxes, assessments, fees and
governmental charges referred to in clause (i) above or Claims referred to in
clause (ii) above need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor.
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9.5. Insurance. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries or tenants to maintain,
in full force and effect the insurance policies and programs listed on
Schedule 7.1-T or substantially similar policies and programs or other
policies and programs as are reasonably acceptable to the Administrative
Agent. All such policies and programs shall be maintained (a) with insurers
having an Alfred M. Best Company, Inc. rating of "A" or better (or if approved
by the Administrative Agent, a rating of "A-") and a financial size category
of not less than VIII or (b) in the case of (i) insurance maintained by
tenants, pursuant to insurance programs, including self-insurance, supported
by creditworthy entities which do not satisfy clause (a) above or (ii) a
program by which a tenant (or any guarantor of tenant) undertakes obligations
that are substantially the same as would be covered by the insurance referred
to in this Section, by a tenant (or any guarantor) that is a creditworthy
entity, in each case consistent with normal industry practice and reasonably
acceptable to the Administrative Agent; provided that a tenant (or any
guarantor) that is, or has senior unsecured long term debt that is, rated at
least "A" (or its equivalent) by any Rating Agency shall be deemed to have
acceptable creditworthiness by the Administrative Agent.
9.6. Inspection of Property, Books and Records Discussions. The
Borrower shall permit, and cause each of its Subsidiaries and the Company to
permit, any authorized representative(s) designated by the Administrative
Agent, the Arranger or any Lender (coordinated through the Administrative
Agent) to visit and inspect any of the Projects, to examine, audit, and check
their respective financial and accounting records, books, journals, orders,
receipts and any correspondence and other data relating to their respective
businesses or the transactions contemplated hereby (including, without
limitation, in connection with environmental compliance, hazard or liability),
and to discuss their affairs, finances and accounts with their officers and
independent certified public accountants, upon reasonable notice and at such
reasonable times during normal business hours, as often as may be reasonably
requested. Each such visitation and inspection shall be at such visitor's
expense. The Borrower shall keep and maintain, and cause its Subsidiaries to
keep and maintain, in all material respects proper books of record and account
in which entries are made in conformity with GAAP.
9.7. ERISA Compliance. The Borrower shall, and shall cause each of
its Subsidiaries and ERISA Affiliates to, establish, maintain and operate all
Benefit Plans to comply in all material respects with the provisions of ERISA,
the Internal Revenue Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the governing
documents for such Plans.
9.8. Maintenance of Property. The Borrower shall, and shall cause
each of its Subsidiaries to, maintain in all material respects all of their
respective owned and leased Property in good, safe and insurable condition and
repair (ordinary wear and tear excepted), and not permit, commit or suffer any
waste or abandonment of any such Property and from time to time shall make or
cause to be made all material repairs, renewals and replacements thereof,
including, without limitation, any capital improvements which may be required
to maintain the same; provided, however, that such Property may be altered or
renovated in the ordinary course of business of the Borrower or such
applicable Subsidiary. Without any limitation on the foregoing, the Borrower
shall maintain each Project that is an office or industrial Project as an
office or industrial Project.
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9.9. Company Status. The Borrower shall cause the Company to, and the
Company shall, at all times (1) remain a publicly traded company listed on the
New York Stock Exchange; (2) maintain its status as a REIT under the Internal
Revenue Code, and (3) retain direct or indirect management and control of the
Borrower.
9.10. Ownership of Projects, Joint Ventures and Property. The
ownership of substantially all wholly owned Projects, Joint Ventures and other
Property of the Consolidated Businesses shall be held by the Borrower and its
Subsidiaries and shall not be held directly by the Company.
9.11. [Intentionally Omitted.]
9.12. Additional Guarantors; Solvency of Guarantors.
(a) If, after the Closing Date, a Subsidiary of the Borrower
that is not a Guarantor acquires any Real Property that then or thereafter
qualifies under the definition of Unencumbered Project or Unencumbered New
York City Asset or any other Unencumbered asset and such Property or asset is
directly or indirectly wholly-owned or ground leased by the Borrower, the
Borrower shall cause such Person (which Person must be or become a
wholly-owned Subsidiary of the Borrower) to execute and deliver a Guaranty to
the Administrative Agent and the Lenders in substantially the form of Exhibit
H hereto. Such Guaranty shall evidence consideration and equivalent value.
(b) The Borrower, the Company, and each other Guarantor are
Solvent. The Borrower and the Company each acknowledge that, subject to the
indefeasible payment and performance in full of the Obligations, the rights of
contribution among each of them and the other Guarantors are in accordance
with applicable laws and in accordance with each such Person's benefits under
the Loans and this Agreement. The Borrower further acknowledges that, subject
to the indefeasible payment and performance in full of the Obligations, the
rights of subrogation of the Guarantors as against the Borrower and the
Company are in accordance with applicable laws.
(c) Other than during the continuance of a Potential Event of
Default or Event of Default, at the request of the Borrower following the
delivery of the certificate of an Authorized Officer in accordance with
Section 8.9 hereof, the Guaranty of any Guarantor shall be released by the
Administrative Agent if and when all of the Real Property owned or
ground-leased by such Guarantor shall cease (not thereby creating a Potential
Event of Default or Event of Default) to be an Unencumbered Project or
Unencumbered New York City Asset which is wholly-owned by a Consolidated
Business, provided the foregoing shall never permit the release of the
Company.
9.13. Further Assurances. The Borrower will, and will cause each
Guarantor to, cooperate with, and to cause each of its Subsidiaries to
cooperate with, the Administrative Agent and the Lenders and execute such
further instruments and documents as the Lenders or the Administrative Agent
shall reasonably request to carry out to their reasonable satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.
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9.14. Distributions in the Ordinary Course. In the ordinary course of
business the Borrower causes all of its Subsidiaries to make net transfers of
cash and cash equivalents upstream to the Borrower and the Company, and shall
continue to follow such ordinary course of business. The Borrower shall not
make net transfers of cash and cash equivalents downstream to its Subsidiaries
except in the ordinary course of business consistent with past practice.
ARTICLE X.
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Term Loan Commitments are outstanding and thereafter
until payment in full of all of the Obligations (other than indemnities
pursuant to Section 14.3 not yet due), unless the Requisite Lenders shall
otherwise give prior written consent:
10.1. Intentionally Omitted.
10.2. Liens. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien (i)
that is not permitted under the Existing Revolving Credit Agreement or (ii) if
the Existing Revolving Credit Agreement is no longer in effect, on or with
respect to any Property, except:
(a) Liens with respect to Capital Leases of Equipment entered
into in the ordinary course of business of the Borrower or its Subsidiaries
pursuant to which the aggregate Indebtedness under such Capital Leases does
not exceed $1,000,000 for any Project;
(b) Existing Permitted Liens;
(c) Liens securing permitted Secured Indebtedness; provided
that the incurrence of such Liens shall be subject to compliance with Section
4.1(c) and Section 8.9 hereof; and
(d) Customary Permitted Liens.
10.3. Intentionally Omitted.
10.4. Conduct of Business. Neither the Borrower nor any of its
Subsidiaries shall engage in any business, enterprise or activity other than
(a) the businesses of acquiring, developing, re-developing, financing, leasing
and managing predominantly office and industrial Projects and portfolios of
like Projects, (b) any business or activities which are substantially similar,
related or incidental thereto, (c) investments in and loans to Investment
Funds, FrontLine Capital Group, Subsidiaries, Affiliates and Joint Ventures
and unaffiliated entities (to the extent permitted hereunder) and (d) other
activities referred to in Section 2.2 hereof.
10.5. Transactions with Partners and Affiliates. Neither the Borrower
nor any of its Subsidiaries shall directly or indirectly enter into or permit
to exist any transaction (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder or holders of more than five percent (5%) of any class of equity
Securities of the Borrower, or with any Affiliate of the Borrower which is not
its Subsidiary or the Company, unless such transaction is determined by the
Board of Directors of the Company to be no less favorable to the Borrower or
any of its Subsidiaries, as applicable, than those that
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might be obtained in an arm's length transaction at the time from Persons who
are not such a holder or Affiliate (other than transactions referred to in
Section 2.2). Nothing contained in this Section 10.5 shall prohibit (a)
increases in compensation and benefits for officers and employees of the
Company, the Borrower or any of its Subsidiaries; (b) payment of officers',
managers', trustees', directors', partners' and other similar indemnities; (c)
performance of any obligations arising under the Loan Documents; or (d) loans
to Persons in connection with such Person's contribution of Real Property to
the Consolidated Businesses or Joint Ventures.
10.6. Restriction on Fundamental Changes. The Borrower shall not, and
shall not permit any of the Guarantors to, enter into any merger,
consolidation or amalgamation, or liquidate, wind-up or dissolve (or suffer
any liquidation or dissolution), or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or substantially
all of the Borrower's or such Guarantor's business or Property, whether now or
hereafter acquired, except in connection with issuance, transfer, conversion
or repurchase of limited partnership interests in the Borrower.
Notwithstanding the foregoing, (a) the Borrower or a Guarantor shall be
permitted to merge, consolidate or amalgamate with another Person so long as
the Borrower or such Guarantor, as the case may be, is the surviving Person
following such merger, consolidation or amalgamation, (b) a Guarantor (other
than the Company) shall be permitted to merge, consolidate or amalgamate with
or into the Borrower or another Guarantor, and (c) so long as no Potential
Event of Default or Event of Default has occurred and is continuing and
following the delivery by the Borrower to the Administrative Agent of a
certificate of an Authorized Officer certifying that Borrower is in compliance
with this Agreement and the other Loan Documents on a pro forma basis,
exclusive of the properties owned by a Guarantor, such Guarantor (other than
the Company) shall be permitted to merge, consolidate or amalgamate with or
into another Person.
10.7. Margin Regulations; Securities Laws. Neither the Borrower nor
any of its Subsidiaries shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock.
10.8. ERISA. The Borrower shall not and shall not permit any of its
Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections
406 of ERISA or 4975 of the Internal Revenue Code for which a statutory or
class exemption is not available or a private exemption has not been
previously obtained from the DOL, except to the extent engaging in such
transaction would not have a Material Adverse Effect;
(b) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Internal Revenue Code), with
respect to any Benefit Plan, whether or not waived;
(c) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any Benefit
Plan;
(d) terminate any Benefit Plan which would result in any
liability of Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any
Multiemployer Plan which Borrower or any ERISA Affiliate may be required to
make under any agreement relating to
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such Multiemployer Plan, or any law pertaining thereto, except to the extent
such failure would not have a Material Adverse Effect;
(f) fail to pay any required installment or any other payment
required under Section 412 of the Internal Revenue Code on or before the due
date for such installment or other payment; or
(g) amend a Benefit Plan resulting in an increase in current
liability for the plan year such that the Borrower or any ERISA Affiliate is
required to provide security to such Plan under Section 401(a)(29) of the
Internal Revenue Code.
10.9. Organizational Documents. Neither the Company nor the Borrower
shall, and the Borrower shall not permit any Guarantor to, amend, modify or
otherwise change any of the terms or provisions in any of their respective
Organizational Documents as in effect on the Closing Date, except amendments
to effect (a) a change of name of the Borrower or such Guarantor, provided
that the Borrower shall have provided the Administrative Agent with thirty
(30) days prior written notice of any such name change, or (b) changes that
would not affect such Organizational Documents in any material manner not
otherwise prohibited under this Agreement.
10.10. Fiscal Year. Neither the Company, the Borrower nor any of
their Subsidiaries shall change its Fiscal Year for accounting or tax purposes
from a period consisting of the 12-month period ending on December 31 of each
calendar year.
10.11. Financial Covenants.
(a) Indebtedness. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any
Indebtedness, except (i) Total Outstanding Indebtedness which would not exceed
sixty percent (60%) of Total Value as of the date of incurrence, (ii) Total
Secured Outstanding Indebtedness which would not exceed forty percent (40%) of
Total Value as of the date of incurrence or (iii) Total Recourse Secured
Outstanding Indebtedness which would not exceed ten percent (10%) of Total
Value as of the date of incurrence.
(b) Minimum Combined Equity Value. The Combined Equity Value
shall at no time be less than $1,250,000,000, plus an amount equal to seventy
percent (70%) of all Net Offering Proceeds received by the Company after
August 6, 2004.
(c) Intentionally Omitted.
(d) Minimum Unsecured Interest Coverage Ratio. As of the first
day of each calendar quarter for the immediately preceding calendar quarter,
the ratio of (i) Adjusted Unencumbered NOI to (ii) Unsecured Interest Expense
shall not be less than 2.0 to 1.0.
(e) Limitation on Total Unsecured Outstanding Indebtedness. As
of the first day of each calendar quarter for the immediately preceding
calendar quarter, the ratio of (i) Total Unsecured Outstanding Indebtedness to
(ii) Total Unencumbered Value (including Eligible Cash 1031 Proceeds, to the
extent not already included) shall not exceed 0.60 to 1.0.
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(f) Minimum Total Interest Coverage Ratio. As of the first day
of each calendar quarter for the immediately preceding calendar quarter, the
ratio of (i) Total Adjusted EBITDA to (ii) Total Interest Expense shall not be
less than 2.0 to 1.0.
(g) Minimum Fixed Charge Coverage Ratio. As of the first day of
each calendar quarter for the immediately preceding calendar quarter, the
ratio of (i) Total Adjusted EBITDA to (ii) Fixed Charges shall not be less
than 1.60 to 1.0.
(h) Maximum Dividend Payout Ratio. The Borrower shall not make
any Restricted Payment during any of its fiscal quarters, which, when added to
all Restricted Payments made during the three immediately preceding fiscal
quarters, exceeds the greater of (i) 90% of FFO of the Borrower, and (ii) the
amounts required to maintain the Company's status as a REIT under the Internal
Revenue Code, and, provided an Event of Default shall not have occurred and be
continuing, to avoid federal income and excise tax liability. For purposes of
this provision, "Restricted Payment" means any cash dividend or other cash
distribution on any interest in the Borrower's common operating partnership
units or on any of the Borrower's common partnership interests or other common
equity interests (except dividends or distributions payable solely in
interests in operating partnership units, partnership interests, or other
equity interests or in rights to subscribe for or purchase interests in its
operating partnership units, partnership interests, or other equity interests
and except dividends or distributions which are necessary to pay dividends or
distributions on preferred stock or other preferred equity interests of the
Company).
(i) Development Activities. As of the first day of each
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Budgeted Construction Cost to (ii) Total Value shall not exceed 0.20 to
1.0.
(j) Negative Pledge. From and after the date hereof, neither
the Borrower nor the Company will, and will not permit any of their respective
Subsidiaries, to enter into any agreement containing any provision prohibiting
the creation or assumption of any Lien upon its properties, revenues or assets
(other than with respect to (i) prohibitions on subordinate liens or
prohibitions on pledges of direct or indirect ownership interests (other than
pledges of direct ownership interests in the Borrower or any Subsidiary that
owns an Unencumbered Project or Unencumbered New York City Asset) set forth in
a mortgage on a particular property, (ii) customary restrictions contained in
the Organizational Documents of a Joint Venture, or (iii) restrictions
contained in the Organizational Documents of the Borrower on the ability of
its general partner and limited partner to pledge and transfer partnership
interests in the Borrower), whether now owned or hereafter acquired, or
restricting the ability of the Borrower to amend or modify this Agreement or
any other Loan Document.
10.12. Negative Covenants with respect to the Company.
(a) From and after the date hereof, the Company will not
acquire any assets of any nature whatsoever other than additional units in the
Borrower, Cash or Cash Equivalents in the ordinary course of business or in
connection with the payment of dividends.
(b) From and after the date hereof, the Company will not incur
any Indebtedness or any other obligations or liabilities except (i) as imposed
by operation of law on the Company in its capacity as the general partner of
the Borrower, (ii) Indebtedness, the net proceeds of which are contributed to
the Borrower simultaneously with the incurrence thereof by
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the Company, (iii) guarantees of Indebtedness which are recourse to the
Borrower, (iv) in connection with the payment of a declared dividend and (v)
otherwise as imposed by law.
(c) From and after the date hereof, the Company will not retain
any Net Offering Proceeds, and the same will be contributed by the Company to
the Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or
consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, any of its business or assets,
including its interests in the Borrower. Notwithstanding the foregoing, the
Company shall be permitted to merge with another Person so long as the Company
is the surviving Person following such merger.
ARTICLE XI.
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. The Borrower shall fail
to pay (i) when due any principal payment on the Obligations which is due on
the Term Loan Maturity Date or pursuant to the terms of Section 2.1(a),
Section 2.4, Section 4.1(a), or Section 4.1(c) or (ii) when due, any interest
payment on the obligations, provided, however, that the Borrower shall be
entitled to a five (5) day grace period with respect to any interest payment
but not more than one time in any twelve (12) month period during the term
hereof, or (iii) when due, any principal payment on the Obligations not
referenced in clauses (i) or (ii) hereinabove or (iv) when due, any fees due
pursuant to the terms of Section 5.3 and such default shall continue for five
(5) days.
(b) Breach of Certain Covenants. The Borrower shall fail duly
and punctually to perform or observe any agreement, covenant or obligation
binding on such Person under Sections 9.1, 9.4, 9.5, 9.10, or Article X.
(c) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Borrower or any of the parties to the
Guaranties to the Administrative Agent, the Arranger or any Lender herein or
by the Borrower or any of the parties to the Guaranties or any of their
Subsidiaries in any of the other Loan Documents or in any statement or
certificate at any time given by any such Person pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as
of which made or deemed made or given.
(d) Other Defaults. The Borrower shall default in the
performance of or compliance with any terms contained in this Agreement (other
than as identified in paragraphs (a), (b) or (c) of this Section 11.1), or any
default or event of default shall occur under any of the other Loan Documents,
and such default or event of default shall continue for thirty (30) days after
receipt of written notice from the Administrative Agent thereof.
(e) Acceleration of Other Indebtedness. Any breach, default or
event of default shall occur and be continuing, or any other condition shall
exist under any instrument, agreement or indenture pertaining to any recourse
Indebtedness (other than the Obligations) of
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the Company, the Borrower or their Subsidiaries aggregating more than
$10,000,000, and the effect thereof is to cause an acceleration, mandatory
redemption or other required repurchase of such Indebtedness, or permit the
holder(s) of such Indebtedness to accelerate the maturity of any such
Indebtedness or require a redemption or other repurchase of such Indebtedness;
or any such Indebtedness shall be otherwise declared to be due and payable (by
acceleration or otherwise) or required to be prepaid, redeemed or otherwise
repurchased by the Borrower or any of its Subsidiaries (other than by a
regularly scheduled required prepayment) prior to the stated maturity thereof;
or any such Indebtedness shall not be repaid at maturity (after taking into
account grace and cure periods).
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company,
the Borrower or any of its Subsidiaries to which $25,000,000 or more
of the Combined Equity Value is attributable, and the petition shall
not be dismissed, stayed, bonded or discharged within sixty (60) days
after commencement of the case; or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the
Company, the Borrower or any such Subsidiaries of the Borrower in an
involuntary case, under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect; or any other similar
relief shall be granted under any applicable federal, state, local or
foreign law; or the respective board of directors of the Company, or
General Partner or Limited Partners of the Borrower or the board of
directors or partners of any such Subsidiaries of the Borrower (or
any committee thereof) adopts any resolution or otherwise authorizes
any action to approve any of the foregoing.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Company, the Borrower or any of their Subsidiaries to which
$25,000,000 or more of the Combined Equity Value is attributable, or
over all or a substantial part of the Property of the Company, the
Borrower or any of such Subsidiaries, shall be entered; or an interim
receiver, trustee or other custodian of the Company, the Borrower or
any of such Subsidiaries or of all or a substantial part of the
Property of the Company, the Borrower or any of such Subsidiaries
shall be appointed or a warrant of attachment, execution or similar
process against any substantial part of the Property of any of the
Company, the Borrower, or any of such Subsidiaries shall be issued
and any such event shall not be stayed, dismissed, bonded or
discharged within sixty (60) days after entry, appointment or
issuance; or the respective board of directors of any of the Company
or General Partners or Limited Partners of the Borrower or the board
of directors or partners of any of Borrower's Subsidiaries (or any
committee thereof) adopts any resolution or otherwise authorizes any
action to approve any of the foregoing.
(g) Voluntary Bankruptcy; Appointment of Receiver. Etc. The
Company, the Borrower or any of their Subsidiaries to which $25,000,000 or
more of the Combined Equity Value is attributable, shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in
an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its Property; or the Company, the
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Borrower or any of such Subsidiaries shall make any assignment for the benefit
of creditors or shall be unable or fail, or admit in writing its inability, to
pay its debts as such debts become due.
(h) Judgments and Unpermitted Liens.
(i) Any money judgment (other than a money judgment covered by
insurance as to which the insurance company has acknowledged
coverage), writ or warrant of attachment, or similar process against
the Borrower or any of its Subsidiaries or any of their respective
assets involving in any case an amount in excess of $5,000,000 (other
than with respect to Claims arising out of non-recourse Indebtedness)
is entered and shall remain undischarged, unvacated, unbonded or
unstayed for a period of sixty (60) days or in any event later than
five (5) days prior to the date of any proposed sale thereunder.
(ii) A federal, state, local or foreign tax Lien is filed
against the Borrower which is not discharged of record, bonded over
or otherwise secured to the satisfaction of the Administrative Agent
within sixty (60) days after the filing thereof or the date upon
which the Administrative Agent receives actual knowledge of the
filing thereof for an amount which, either separately or when
aggregated with the amount of any judgments described in clause (i)
above, equals or exceeds $5,000,000.
(iii) An Environmental Lien is filed against any Project with
respect to Claims in an amount which, either separately or when
aggregated with the amount of all other such Environmental Liens,
equals or exceeds $5,000,000.
(i) Dissolution. Any order, judgment or decree shall be entered
against the Borrower or any Guarantor decreeing its involuntary dissolution or
split up; or the Borrower or any Guarantor shall otherwise dissolve or cease
to exist except as specifically permitted by this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan
Document ceases to be in full force and effect or the Borrower or any
Guarantor seeks to repudiate its obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event occurs
which the Administrative Agent believes could subject any of the Borrower or
any ERISA Affiliate to liability in excess of $500,000.
(l) Waiver Application. The plan administrator of any Benefit
Plan applies under Section 412 (d) of the Internal Revenue Code for a waiver
of the minimum funding standards of Section 412 (a) of the Internal Revenue
Code and the Administrative Agent believes that the substantial business
hardship upon which the application for the waiver is based could subject
either the Borrower or any ERISA Affiliate to liability in excess of $500,000.
(m) Material Adverse Effect. An event shall occur which has a
Material Adverse Effect.
(n) Certain Defaults Pertaining to the Company. The Company
shall fail to comply with Section 9.9, or any representation or warranty
contained in Section 7.1(a)(ii), (b), (d), (l), or (o) shall be false or
misleading in any material respect on the date as of which made.
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(o) Merger or Liquidation of the Company, the Borrower. The
Company shall merge or liquidate with or into any other Person and, as a
result thereof and after giving effect thereto, (i) the Company is not the
surviving Person or (ii) such merger or liquidation would effect an
acquisition of or Investment in any Person which is prohibited or results in a
Potential Event of Default or an Event of Default under the terms of this
Agreement. The Borrower shall merge or liquidate with or into any other Person
and, as a result thereof and after giving effect thereto, (i) the Borrower is
not the surviving Person or (ii) such merger or liquidation would effect an
acquisition of or Investment in any Person which is prohibited or results in a
Potential Event of Default or an Event of Default under the terms of this
Agreement.
(p) Existing Revolving Credit Agreement. An "Event of Default"
shall occur under the Existing Revolving Credit Agreement.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with Section 14.7.
11.2. Rights and Remedies.
(a) Acceleration and Termination. Upon the occurrence of any
Event of Default described in Sections 11.1(f) or 11.1(g), the Term Loan
Commitments shall automatically and immediately terminate and the unpaid
principal amount of, and any and all accrued interest on, the Obligations and
all accrued fees and other Obligations shall automatically become immediately
due and payable, without presentment, demand, or protest or other requirements
of any kind (including, without limitation, valuation and appraisement,
diligence, presentment, notice of intent to demand or accelerate and of
acceleration), all of which are hereby expressly waived by the Borrower, and,
upon the occurrence and during the continuance of any other Event of Default,
the Administrative Agent shall at the request, or may with the consent, of the
Lenders whose Pro Rata Shares, in the aggregate, are greater than fifty-one
percent (51%), by written notice to the Borrower, (i) declare that the Term
Loan Commitments are terminated, whereupon the Term Loan Commitments and the
obligation of each Lender to convert or continue any Loan hereunder shall
immediately terminate, and/or (ii) declare the unpaid principal amount of and
any and all accrued and unpaid interest on the Obligations and all other
Obligations to be, and the same shall thereupon be, immediately due and
payable, without presentment, demand, or protest or other requirements of any
kind (including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and of acceleration),
all of which are hereby expressly waived by the Borrower.
(b) Rescission. If within ninety (90) days after termination of
the Term Loan Commitments and/or acceleration of the maturity of the Loans,
the Borrower shall pay all arrears of interest and all payments on account of
principal of the Loans which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law,
on overdue interest, at the rates specified in this Agreement) and all Events
of Default and Potential Events of Default (other than nonpayment of principal
of and accrued interest on the Loans due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 14.7, then upon
the written consent of the Requisite Lenders and written notice to the
Borrower, the termination of the Term Loan Commitments and/or the acceleration
and their consequences may be rescinded and annulled; but such action shall
not affect any subsequent Event of Default or Potential Event of Default or
impair any right or remedy consequent thereon. The provisions of the preceding
sentence are intended merely to bind the Lenders to a decision which may be
made at the election of the Requisite Lenders; they are not intended to
benefit the
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Borrower and do not give the Borrower the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
(c) Enforcement. The Borrower acknowledges that in the event
the Borrower, the Guarantors or any of their Subsidiaries fails to perform,
observe or discharge any of their respective obligations or liabilities under
this Agreement or any other Loan Document, any remedy of law may prove to be
inadequate relief to the Administrative Agent, the Arranger and the Lenders;
therefore, the Borrower agrees that the Administrative Agent, the Arranger and
the Lenders shall be entitled to temporary and permanent injunctive relief in
any such case without the necessity of proving actual damages.
ARTICLE XII.
THE AGENTS
12.1. Appointment. (a) Each Lender hereby designates and appoints
CNAI as the Administrative Agent, and the Arranger as the arrangers of such
Lender under this Agreement, and each Lender hereby irrevocably authorizes the
Administrative Agent, and the Arranger to take such actions on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers in each case only as are set forth herein or therein
together with such other powers as are reasonably incidental thereto. The
Administrative Agent and the Arranger each agrees to act as such on the
express conditions contained in this Article XII.
(b) The provisions of this Article XII are solely for the
benefit of the Administrative Agent, the Arranger and the Lenders, and neither
the Borrower, the Company nor any Subsidiary of the Borrower shall have any
rights to rely on or enforce any of the provisions hereof (other than as
expressly set forth in Section 12.7). In performing its respective functions
and duties under this Agreement, the Administrative Agent and the Arranger
shall act solely as agents of the Lenders and do not assume and shall not be
deemed to have assumed any obligation or relationship of agency, trustee or
fiduciary with or for the Company, the Borrower or any Subsidiary of the
Borrower. The Administrative Agent and the Arranger may perform any of their
respective duties hereunder, or under the other Loan Documents, by or through
their respective agents or employees.
12.2. Nature of Duties. The Administrative Agent and the Arranger
shall not have any duties or responsibilities except those expressly set forth
in this Agreement or in the other Loan Documents. The duties of the
Administrative Agent and the Arranger shall be mechanical and administrative
in nature. Neither the Administrative Agent nor the Arranger shall have by
reason of this Agreement a fiduciary relationship in respect of any Lender.
Nothing in this Agreement or any of the other Loan Documents, expressed or
implied, is intended to or shall be construed to impose upon the
Administrative Agent or the Arranger any obligations in respect of this
Agreement or any of the other Loan Documents except as expressly set forth
herein or therein. The Administrative Agent and the Arranger each hereby
agrees that its duties shall include providing copies of documents received by
such Agent from the Borrower which are reasonably requested by any Lender,
furnishing copies of documents to each Lender, upon request, of documents sent
by such Agent to the Borrower and promptly notifying each Lender upon its
obtaining actual knowledge of the occurrence of any Event of Default
hereunder. In addition, the Administrative Agent shall deliver to each Lender,
promptly after receipt thereof, copies of those documents and reports received
by it pursuant to Sections 8.2, 8.3, 8.4, 8.7 and 8.12.
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12.3. Right to Request Instructions. The Administrative Agent and the
Arranger may at any time request instructions from the Lenders with respect to
any actions or approvals which by the terms of any of the Loan Documents such
Agent is permitted or required to take or to grant, and such Agent shall be
absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever to any Person for
refraining from any action or withholding any approval under any of the Loan
Documents until it shall have received such instructions from those Lenders
from whom such Agent is required to obtain such instructions for the pertinent
matter in accordance with the Loan Documents. Without limiting the generality
of the foregoing, such Agent shall take any action, or refrain from taking any
action, which is permitted by the terms of the Loan Documents upon receipt of
instructions from those Lenders from whom such Agent is required to obtain
such instructions for the pertinent matter in accordance with the Loan
Documents, provided, that no Lender shall have any right of action whatsoever
against the Administrative Agent or the Arranger as a result of such Agent
acting or refraining from acting under the Loan Documents in accordance with
the instructions of the Requisite Lenders or, where required by the express
terms of this Agreement, a greater proportion of the Lenders.
12.4. Reliance. The Administrative Agent and the Arranger shall each
be entitled to rely upon any written notices, statements, certificates, orders
or other documents believed by it in good faith to be genuine and correct and
to have been signed, sent or made by the proper Person, and with respect to
all matters pertaining to this Agreement or any of the other Loan Documents
and its duties hereunder or thereunder, upon advice of legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it.
12.5. Indemnification. To the extent that the Administrative Agent or
the Arranger is not reimbursed and indemnified by the Borrower, the Lenders
will reimburse and indemnify such Agent for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, and reasonable costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against it in any
way relating to or arising out of the Loan Documents or any action taken or
omitted by such Agent under the Loan Documents, in proportion to each Lender's
Pro Rata Share. Notwithstanding anything to the contrary contained herein,
neither the Administrative Agent nor the Arranger shall be indemnified to the
extent such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs and expenses result from such Person's gross
negligence, willful misconduct or breach of this Article XII. Such Agent
agrees to refund to the Lenders any of the foregoing amounts paid to it by the
Lenders which amounts are subsequently recovered by such Agent from the
Borrower or any other Person on behalf of the Borrower. The obligations of the
Lenders under this Section 12.5 shall survive the payment in full of the Loans
and all other Obligations and the termination of this Agreement.
12.6. Agents Individually. With respect to their respective Pro Rata
Share of the Term Loan Commitments hereunder, if any, and the Loans made by
them, if any, the Persons serving as the Administrative Agent and the Arranger
shall have and may exercise the same rights and powers hereunder and are
subject to the same obligations and liabilities as and to the extent set forth
herein for any Lender. The terms "Lenders" or "Requisite Lenders" or any
similar terms shall, unless the context clearly otherwise indicates or such
Lender has assigned its interest hereunder, include CNAI in its individual
capacity as a Lender or as one of the Requisite Lenders. CNAI, Citigroup
Global Markets Inc. and each of their Affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with the Borrower
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or any of its Subsidiaries as if CNAI and Citicorp Global Markets Inc. were
not acting as an Agent or Arranger pursuant hereto.
12.7. Successor Agents.
(a) Resignation. Any Agent may resign from the performance of
all its functions and duties hereunder at any time by giving at least thirty
(30) Business Days' prior written notice to the Borrower and the Lenders,
unless applicable law requires a shorter notice period or that there be no
notice period, in which instance such applicable law shall control. Such
resignation shall take effect upon the acceptance by a successor Agent of
appointment pursuant to this Section 12.7.
(b) Appointment by Requisite Lenders. Upon any such resignation
becoming effective, the Requisite Lenders shall have the right to appoint a
successor Administrative Agent selected from among the Lenders with the prior
written consent of the Borrower (so long as no Event of Default then exists),
which consent shall not be unreasonably withheld.
(c) Appointment by Retiring Agent. If a successor
Administrative Agent shall not have been appointed within the thirty (30)
Business Day or shorter period provided in paragraph (a) of this Section 12.7,
the retiring Agent shall then appoint a successor Agent who shall serve as
Administrative Agent until such time, if any, as the Requisite Lenders appoint
a successor Agent as provided above with the prior written consent of the
Borrower (so long as no Event of Default then exists) which shall not be
unreasonably withheld, provided, however, that such successor Administrative
Agent shall have total assets of not less than $10,000,000,000.
(d) Rights of the Successor and Retiring Agents. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under this
Agreement.
12.8. Relations Among the Lenders. Each Lender agrees that it will
not take any legal action, or institute any actions or proceedings, against
the Borrower or any other obligor hereunder with respect to any of the
Obligations, without the prior written consent of the Lenders. Without
limiting the generality of the foregoing, no Lender may accelerate or
otherwise enforce its portion of the obligations, or unilaterally terminate
its Term Loan Commitment except in accordance with Section 11.2(a).
12.9. Standard of Care. The Administrative Agent and the Arranger
shall administer the Loans in the same manner that such Agent administers
loans made for its own account.
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ARTICLE XIII.
YIELD PROTECTION
13.1. Taxes.
(a) Payment of Taxes. Any and all payments by the Borrower
hereunder or under the Notes or other documents evidencing any Obligations of
such Person shall be made, in accordance with Section 4.2, free and clear of
and without reduction for any and all present or future taxes, levies,
imposts, deductions, charges, withholdings, and all stamp or documentary
taxes, excise taxes, ad valorem taxes and other taxes which arise from the
execution, delivery or registration, or from payment or performance under, or
otherwise with respect to, any of the Loan Documents or the Term Loan
Obligations and all other liabilities with respect thereto excluding, in the
case of each Lender, taxes imposed on or measured by net income or overall
gross receipts and capital and franchise taxes imposed on it by (i) the United
States, (ii) the Governmental Authority of the jurisdiction in which such
Lender's Applicable Lending Office is located or any political subdivision
thereof or (iii) the Governmental Authority in which such Person is organized,
managed and controlled or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges and withholdings
being hereinafter referred to as "Taxes"). Except as otherwise provided
herein, if the Borrower shall be required by law to withhold or deduct any
Taxes from or in respect of any sum payable hereunder or under any such Note
or document to any Lender, (x) the sum payable to such Lender shall be
increased as may be necessary so that after making all required withholding or
deductions (including withholding or deductions applicable to additional sums
payable under this Section 13.1) such Lender receives an amount equal to the
sum it would have received had no such withholding or deductions been made,
(y) the Borrower shall make such withholding or deductions, and (z) the
Borrower shall pay the full amount withheld or deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) Indemnification. Except as otherwise provided herein, the
Borrower will indemnify each Lender against, and reimburse each Lender within
ten (10) Business Days after written demand for, the full amount of all Taxes
(including, without limitation, any Taxes imposed by any Governmental
Authority on amounts payable under this Section 13.1 and any additional income
or franchise taxes resulting therefrom) incurred or paid by such Lender and
any liability (including penalties, interest, and out-of-pocket expenses paid
to third parties) arising therefrom or with respect thereto, whether or not
such Taxes were lawfully payable, to the extent not paid by the Borrower
pursuant to this Section 13.1. A certificate as to any additional amount
payable to any Person under this Section 13.1 submitted by it to the Borrower
shall, absent manifest error, be final, conclusive and binding upon all
parties hereto. Each Lender agrees, within a reasonable time after receiving a
written request from the Borrower, to provide the Borrower and the
Administrative Agent with such certificates and other documents as are
reasonably required, and take such other actions as are reasonably necessary
to claim such exemptions as such Lender may be entitled to claim in respect of
all or a portion of any Taxes which are otherwise required to be paid or
deducted or withheld pursuant to this Section 13.1 in respect of any payments
under this Agreement or under the other Loan Documents. If any Lender receives
any refund with respect to any Taxes, such Lender shall promptly remit such
refund to the Borrower.
(c) Receipts. Within thirty (30) days after the date of any
payment of Taxes by the Borrower, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 14.8, the original
or a certified copy of a receipt evidencing payment thereof.
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(d) Foreign Bank Certifications. (i) Each Lender that is not
created or organized under the laws of the United States or a political
subdivision thereof shall deliver to each of the Borrower and the
Administrative Agent on the Closing Date or the date on which such Lender
becomes a Lender pursuant to Section 14.1 hereof a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender
to the effect that such Lender is eligible to receive payments hereunder and
under the Notes without deduction or withholding of United States federal
income tax (I) under the provisions of an applicable tax treaty concluded by
the United States (in which case the certificate shall be accompanied by two
duly completed copies of IRS Form W-8BEN (or any successor or substitute form
or forms)) or (II) under Sections 1441(c)(1) and 1442(a) of the Internal
Revenue Code (in which case the certificate shall be accompanied by two duly
completed copies of IRS Form W-8ECI (or any successor or substitute form or
forms)).
(ii) Each Lender referred to in Section 13.1(d)(i) further
agrees to deliver to each of the Borrower and the Administrative Agent from
time to time, a true and accurate certificate executed in duplicate by a duly
authorized officer of such Lender before or promptly upon the occurrence of
any event requiring a change in the most recent certificate previously
delivered by it to the Borrower and the Administrative Agent pursuant to this
Section 13.1(d). Each certificate required to be delivered pursuant to this
Section 13.1(d)(ii) shall certify as to one of the following:
(A) that such Lender can continue to receive payments
hereunder and under the Notes without deduction or withholding
of United States federal income tax;
(B) that such Lender cannot continue to receive payments
hereunder and under the Notes without deduction or withholding
of United States federal income tax as specified therein but
does not require additional payments pursuant to Section 13.1(a)
because it is entitled to recover the full amount of any such
deduction or withholding from a source other than the Borrower;
or
(C) that such Lender is no longer capable of receiving
payments hereunder and under the Notes without deduction or
withholding of United States federal income tax as specified
therein and that it is not capable of recovering the full amount
of the same from a source other than the Borrower.
Each such Lender agrees to deliver to each of the Borrower and the
Administrative Agent further duly completed copies of the above-mentioned IRS
forms on or before the earlier of (x) the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a condition to
obtaining an exemption from withholding from United States federal income tax
and (y) fifteen (15) days after the occurrence of any event requiring a change
in the most recent form previously delivered by such Lender to the Borrower
and Administrative Agent, unless any change in treaty, law, regulation, or
official interpretation thereof which would render such form inapplicable or
which would prevent such Lender from duly completing and delivering such form
has occurred prior to the date on which any such delivery would otherwise be
required and such Lender promptly advises the Borrower that it is not capable
of receiving payments hereunder and under the Notes without any deduction or
withholding of United States federal income tax.
(iii) Notwithstanding anything to the contrary contained in
this Section 13.1, the Borrower will not be required to make any additional
payment to or for the account of any
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Lender under Section 13.1(a) or (b) by reason of (x) a breach by such Lender
of any certification or representation set forth in any form furnished to the
Borrower under this Section 13.1(d), or (y) such Lender's failure or inability
to furnish, if required to do so, under this Section 13.1(d) an original or
renewal of a Form W-8ECI or Form W-8BEN (or successor form), as applicable,
unless such failure or inability results from a change (after the date such
Lender became a Lender party hereto) in any applicable law or regulation or in
the interpretation thereof by any regulatory authority (including without
limitation any change in any applicable tax treaty).
13.2. Increased Capital. If after the date hereof any Lender
determines that (i) the adoption or implementation of or any change in or in
the interpretation or administration of any law or regulation or any guideline
or request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over
any Lender or banks or financial institutions generally (whether or not having
the force of law), compliance with which affects the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (ii) the amount of such capital is increased by or
based upon the making or maintenance by any Lender of its Loans, any Lender's
participation in or obligation to participate in the Loans or other advances
made hereunder or the existence of any Lender's obligation to make Loans then,
in any such case, within ten (10) Business Days after written demand by such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall immediately pay to the Administrative Agent for the account of such
Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation therefor. Such demand
shall be accompanied by a statement as to the amount of such compensation and
include a brief summary of the basis for such demand. Such statement shall be
conclusive and binding for all purposes, absent manifest error.
13.3. Changes; Legal Restrictions. If after the date hereof any
Lender determines that the adoption or implementation of or any change in or
in the interpretation or administration of any law or regulation or any
guideline or request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over
any Lender, or over banks or financial institutions generally (whether or not
having the force of law), compliance with which:
(a) subjects a Lender (or its Applicable Lending Office or
Eurodollar Affiliate) to charges (other than taxes) of any kind which such
Lender reasonably determines to be applicable to the Term Loan Commitments of
the Lenders to make Eurodollar Rate Loans or change the basis of taxation of
payments to that Lender of principal, fees, interest, or any other amount
payable hereunder with respect to Eurodollar Rate Loans (other than taxes
covered by Section 13.1(a) hereof and taxes excluded in Section 13.1(a)
hereof); or
(b) imposes, modifies, or holds applicable, in the
determination of a Lender, any reserve, special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, commitments made,
or other credit extended by, or any other acquisition of funds by, a Lender or
any Applicable Lending Office or Eurodollar Affiliate of that Lender in
respect of Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to that Lender
of making, renewing or maintaining the Loans or its Term Loan Commitment;
then, in any such case, within ten (10) Business Days after written demand by
such Lender (with a copy of such demand to the
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Administrative Agent), the Borrower shall immediately pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, such amount or amounts as may be necessary to
compensate such Lender or its Eurodollar Affiliate for any such additional
cost incurred or reduced amount received. Such demand shall be accompanied by
a statement as to the amount of such compensation and include a brief summary
of the basis for such demand. Such statement shall be conclusive and binding
for all purposes, absent manifest error.
13.4. Replacement of Certain Lenders. In the event a Lender (a
"Designated Lender") shall have (i) requested additional compensation from the
Borrower under Section 13.1 or under Section 13.2 or under Section 13.3, (ii)
failed to make its Pro Rata Share of the Term Loan or (iii) failed to make any
Loan at the Eurodollar Rate, the Borrower may, at its sole election, make
written demand on such Designated Lender (with a copy to the Administrative
Agent) for the Designated Lender to assign, and such Designated Lender shall
assign pursuant to one or more duly executed Assignment and Acceptances to one
or more Eligible Assignees which the Borrower or the Administrative Agent
shall have identified for such purpose, all of such Designated Lender's right
and obligations under this Agreement, the Notes and the other Loan Documents
(including, without limitation, its Term Loan Commitment, all Loans owing to
it and all other Obligations owing to it) in accordance with Section 14.1. All
out-of-pocket expenses incurred by the Administrative Agent in connection with
the foregoing shall be for the sole account of the Borrower and shall
constitute Obligations hereunder. In no event shall Borrower's election under
the provisions of this Section 13.4 affect its obligation to pay the
additional compensation required under either Section 13.1, Section 13.2 or
Section 13.3.
13.5. Mitigation. Each Lender shall notify the Borrower of any event
occurring after the date of this Agreement entitling such Lender to
compensation under Sections 13.1, 13.2 or 13.3 as promptly as practicable, but
in any event, within 45 days, after such Lender obtains actual knowledge
thereof; provided that (i) if any Lender fails to give such notice within 45
days after it obtains actual knowledge of such an event, such Lender shall,
with respect to compensation payable pursuant to Sections 13.1, 13.2 or 13.3
in respect of any costs resulting from such event, only be entitled to payment
under Sections 13.1, 13.2 or 13.3 for costs incurred from and after the date
45 days prior to the date that such Lender does give such notice and (ii) each
Lender will designate a different Applicable Lending Office for the Loans of
such Lender affected by such event if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the
reasonable judgment of such Lender, be disadvantageous to such Lender.
ARTICLE XIV.
MISCELLANEOUS
14.1. Assignments and Participations.
(a) Assignments. No assignments or participations of any
Lender's rights or obligations under this Agreement shall be made except in
accordance with this Section 14.1. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all of its rights and obligations with respect to the
Loans) in accordance with the provisions of this Section 14.1.
(b) Limitations on Assignments. Each assignment shall be
subject to the following conditions: (i) each assignment shall be of a
constant, and not a varying, ratable percentage of all of the assigning
Lender's rights and obligations under this Agreement and, in the case of a
partial assignment to an assignee which is not a Lender or a Lender Affiliate,
shall be in
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a minimum principal amount of $5,000,000 (and the assignor shall maintain a
minimum amount of $5,000,000 for its own account unless the assignor shall
assign or participate its entire interest), (ii) each such assignment shall be
to an Eligible Assignee, (iii) (A) so long as no Event of Default has occurred
and is continuing, each assignment shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld);
provided that, no such consent of the Administrative Agent shall be required
for an assignment by any Lender to any of its Lender Affiliates, so long as
such Lender Affiliate is an Eligible Assignee, and (B) so long as no Event of
Default has occurred and is continuing, each assignment to an assignee which
is not a Lender or a Lender Affiliate shall be subject to the approval of the
Borrower (which approval shall not be unreasonably withheld and shall be
deemed to have been given if the Borrower fails to object to such proposed
assignment within five (5) Business Days of its receipt of a request for
approval), and (iv) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance. Upon such execution, delivery,
acceptance and recording in the Register, from and after the effective date
specified in each Assignment and Acceptance and agreed to by the
Administrative Agent, (A) the assignee thereunder shall, in addition to any
rights and obligations hereunder held by it immediately prior to such
effective date, if any, have the rights and obligations hereunder that have
been assigned to it pursuant to such Assignment and Acceptance and shall, to
the fullest extent permitted by law, have the same rights and benefits
hereunder as if it were an original Lender hereunder, (B) the assigning Lender
shall, to the extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights
(except as otherwise provided in Section 14.9) and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of such assigning Lender's
rights and obligations under this Agreement, the assigning Lender shall cease
to be a party hereto, except as otherwise provided in Section 14.9) and (C)
the Borrower shall execute and deliver to the assignee thereunder a Note
evidencing its obligations to such assignee with respect to the Loans.
(c) The Register. The Administrative Agent shall maintain at
its address referred to in Section 14.8 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register (the "Register") for
the recordation of the names and addresses of the Lenders, the Term Loan
Commitment of, and the principal amount of the Loans owing to, each Lender
from time to time and whether such Lender is an original Lender or the
assignee of another Lender pursuant to an Assignment and Acceptance. The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the
other Lenders and each other party to a Loan Document may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance
executed by the assigning Lender and an Assignee and a processing and
recordation fee of $3,500 (payable by the assignee to the Administrative
Agent), the Administrative Agent shall, if such Assignment and Acceptance has
been completed and is in compliance with this Agreement and in substantially
the form of Exhibit A hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Borrower.
(e) Participations. Each Lender may sell participations to one
or more other financial institutions or other Persons in or to all or a
portion of its rights and obligations under and in respect of any and all
facilities under this Agreement (including, without limitation, all or a
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portion of its Term Loan Commitment hereunder and the Loans owing to it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Term Loan Commitment hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, (iv) each participation (other
than a participation to an Affiliate) shall be in a minimum amount of
$5,000,000, and (v) such participant's rights to agree or to restrict such
Lender's ability to agree to the modification, waiver or release of any of the
terms of the Loan Documents, to consent to any action or failure to act by any
party to any of the Loan Documents or any of their respective Affiliates, or
to exercise or refrain from exercising any powers or rights which any Lender
may have under or in respect of the Loan Documents, shall be limited to the
right to consent to any (A) increase in the Term Loan Commitment of the Lender
from whom such participant purchased a participation, (B) reduction of the
principal of, or rate or amount of interest on the Loans subject to such
participation (other than by the payment or prepayment thereof), (C)
postponement of any date fixed for any payment of principal of, or interest
on, the Loans) subject to such participation and (D) release of any guarantor
of the Obligations.
(f) Information Regarding the Borrower. Any Lender may, subject
to the provisions of Section 14.22, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
14.1, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower or its Subsidiaries
furnished to such Lender by the Administrative Agent or by or on behalf of the
Borrower.
(g) Payment to Participants. Anything in this Agreement to the
contrary notwithstanding, in the case of any participation, all amounts
payable by the Borrower under the Loan Documents shall be calculated and made
in the manner and to the parties required hereby as if no such participation
had been sold.
(h) Lenders' Creation of Security Interests. Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
create a security interest in all or any portion of its rights under this
Agreement (including, without limitation, Obligations owing to it and any Note
held by it) in favor of any Person.
14.2. Expenses.
(a) Generally. The Borrower agrees promptly upon demand to pay,
or reimburse the Administrative Agent for the reasonable fees, expenses and
disbursements of counsel to the Administrative Agent (but not of other legal
counsel) and for all other reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent or the Arranger in connection with (i)
the preparation, negotiation, and execution of the Loan Documents; (ii) the
preparation, negotiation, execution, syndication and interpretation of this
Agreement (including, without limitation, the satisfaction or attempted
satisfaction of any of the conditions set forth in Article VI), the Loan
Documents, and the making of the Loans and other extensions of credit
hereunder; (iii) any amendments, consents, waivers, assignments, restatements,
or supplements to any of the Loan Documents and the preparation, negotiation,
and execution of the same; and (iv) any other amendments, modifications,
agreements, assignments, restatements or supplements to any of the Loan
Documents requested by Borrower and the preparation, negotiation, and
execution of the same.
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(b) After Default. The Borrower further agrees to pay or
reimburse the Administrative Agent, the Arranger and each of the Lenders upon
demand for all reasonable out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys' fees (including allocated costs of internal
counsel and costs of settlement) incurred by the such entity after the
occurrence and during the continuance of an Event of Default (i) in enforcing
any Loan Document or Obligation, the collection of any Obligation or
exercising or enforcing any other right or remedy available by reason of such
Event of Default; or (ii) in connection with any refinancing or restructuring
of the credit arrangements provided under this Agreement in the nature of a
"work-out" or in any insolvency or bankruptcy proceeding; (iii) in commencing,
defending or intervening in any litigation or in filing a petition, complaint,
answer, motion or other pleadings in any legal proceeding relating to the
Obligations, a Project, or any of the Consolidated Businesses and related to
or arising out of the transactions contemplated hereby or by any of the other
Loan Documents; and (iv) in taking any other action in or with respect to any
suit or proceeding (bankruptcy or otherwise) described in clauses (i) through
(iii) above.
14.3. Indemnity. The Borrower further agrees (a) to defend, protect,
indemnify, and hold harmless the Administrative Agent, the Arranger and each
and all of the Lenders and each of their respective officers, directors,
employees, attorneys and agents (collectively, the "Indemnitees") from and
against any and all liabilities, obligations, losses (other than loss of
profits), damages, penalties, actions, judgments, suits, claims, reasonable
costs, reasonable expenses and reasonable disbursements (excluding any taxes
and including, without limitation, the reasonable fees and disbursements of
counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitees shall
be designated a party thereto), imposed on, incurred by, or asserted against
such Indemnitees in any manner relating to or arising out of (i) this
Agreement or the other Loan Documents, the making of the Loans, the use or
intended use of the proceeds of the Loans hereunder, or any of the other
transactions contemplated by the Loan Documents, or (ii) any Liabilities and
Costs relating to violation of any Environmental, Health or Safety
Requirements of Law, the past, present or future operations of the Borrower,
any of its Subsidiaries or any of their respective predecessors in interest,
or, the past, present or future environmental, health or safety condition of
any respective Property of the Borrower or any of its Subsidiaries, the
presence of asbestos-containing materials at any respective Property of the
Borrower or any of its Subsidiaries, or the Release or threatened Release of
any Contaminant into the environment (collectively, the "Indemnified
Matters"); provided, however, the Borrower shall have no obligation to an
Indemnitee hereunder with respect to Indemnified Matters caused by or
resulting from the willful misconduct or gross negligence of such Indemnitee,
as determined by a court of competent jurisdiction in a non-appealable final
judgment; and provided further that payment of the costs of preparation of the
Loan Documents shall be governed by Section 14.2(a) hereof; and (b) not to
assert any claim against any of the Indemnitees, on any theory of liability,
for consequential or punitive damages arising out of, or in any way in
connection with, the Term Loan Commitments, the Obligations, or the other
matters governed by this Agreement and the other Loan Documents. To the extent
that the undertaking to indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, the Borrower shall contribute the maximum portion which it is
permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by the Indemnitees.
14.4. Change in Accounting Principles. If any change in the
accounting principles used in the preparation of the most recent financial
statements referred to in Sections 8.1 or 8.2 are hereafter required or
permitted by the rules, regulations, pronouncements and opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants
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(or successors thereto or agencies with similar functions) and are adopted by
the Company or the Borrower as applicable, with the agreement of its
independent certified public accountants and such changes result in a change
in the method of calculation of any of the covenants, standards or terms found
in Article X, the parties hereto agree to enter into negotiations in order to
amend such provisions so as to equitably reflect such changes with the desired
result that the criteria for evaluating compliance with such covenants,
standards and terms by the Borrower shall be the same after such changes as if
such changes had not been made; provided, however, no change in GAAP that
would affect the method of calculation of any of the covenants, standards or
terms shall be given effect in such calculations until such provisions are
amended, in a manner satisfactory to the Administrative Agent and the
Borrower, to so reflect such change in accounting principles.
14.5. Intentionally Omitted.
14.6. Ratable Sharing. The Lenders agree among themselves that (i)
with respect to all amounts received by them which are applicable to the
payment of the Obligations (excluding the costs, fees and other payments
described in Sections 5.2(f), and 5.3, Article XIII and Section 14.1)
equitable adjustment will be made so that, in effect, all such amounts will be
shared among them ratably in accordance with their Pro Rata Shares, whether
received by voluntary payment, by the exercise of the right of setoff or
banker's lien, by counterclaim or cross-action or by the enforcement of any or
all of the Obligations (excluding the costs, fees and other payments described
in Sections 5.2(f), and 5.3, Article XIII and Section 14.1), (ii) if any of
them shall by voluntary payment or by the exercise of any right of
counterclaim, setoff, banker's lien or otherwise, receive payment of a
proportion of the aggregate amount of the Obligations held by it, which is
greater than the amount which such Lender is entitled to receive hereunder,
the Lender receiving such excess payment shall purchase, without recourse or
warranty, an undivided interest and participation (which it shall be deemed to
have done simultaneously upon the receipt of such payment) in such Obligations
owed to the others so that all such recoveries with respect to such
obligations shall be applied ratably in accordance with their Pro Rata Shares;
provided, however, that if all or part of such excess payment received by the
purchasing party is thereafter recovered from it, those purchases shall be
rescinded and the purchase prices paid for such participations shall be
returned to such party to the extent necessary to adjust for such recovery,
but without interest except to the extent the purchasing party is required to
pay interest in connection with such recovery. The Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 14.6 may, to the fullest extent permitted by law, exercise all its
rights of payment with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
14.7. Amendments and Waivers.
(a) General Provisions. Unless otherwise provided for or
required in this Agreement, no amendment or modification of any provision of
this Agreement or any of the other Loan Documents shall be effective without
the written agreement of the Requisite Lenders (which the Requisite Lenders
shall have the right to grant or withhold in their sole discretion) and the
Borrower; provided, however, that the Borrower's agreement shall not be
required for any amendment or modification of Sections 12.1 through 12.8
(other than Section 12.7). In the event that the Administrative Agent shall
request the agreement of the Lenders to any amendment, modification or waiver,
if any Lender shall fail to respond to any such request within fifteen (15)
days after receipt of such request, such Lender's approval thereto shall be
deemed to have been given; provided, however, that such request shall state,
in capital letters that "FAILURE TO
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RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT, SHALL BE
DEEMED CONSENT TO THE ENCLOSED REQUEST". No termination or waiver of any
provision of this Agreement or any of the other Loan Documents, or consent to
any departure by the Borrower therefrom, shall be effective without the
written or deemed concurrence of the Requisite Lenders, which the Requisite
Lenders shall have the right to grant or withhold in their sole discretion.
All amendments, waivers and consents not specifically reserved to the
Administrative Agent, the Arranger or the Lenders in Section 14.7(b), 14.7(c),
and in other provisions of this Agreement shall require only the approval of
the Requisite Lenders. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was given. No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances.
(b) Amendments, Consents and Waivers by Affected Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a
written agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in Sections 6.1
(except with respect to a condition based upon another provision
of this Agreement, the waiver of which requires only the
concurrence of the Requisite Lenders),
(ii) change the amount of such Lender's Term Loan Commitment
(other than pursuant to an assignment permitted under Section
14.1),
(iii) reduction of the principal of, or the rate or amount of
interest on, the Loans, or any fees or other amounts payable to
such Lender (other than by the payment or prepayment thereof),
and
(iv) postponement or extension of any date (other than the
Term Loan Maturity Date postponement or extension of which is
governed by Section 14.7(c)(i)) fixed for any payment of
principal of, or interest on, the Loans or any fees or other
amounts payable to such Lender (except with respect to any
modifications of the application provisions relating to
prepayments of Loans and other Obligations which are governed by
Section 4.2(b)).
(c) Amendments, Consents and Waivers by All Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a
written agreement, signed by each Lender:
(i) postponement of the Term Loan Maturity Date;
(ii) change in the definition of Requisite Lenders or in the
aggregate Pro Rata Share of the Lenders which shall be required
for the Lenders or any of them to take action hereunder or under
the other Loan Documents,
(iii) amendment of Section 14.6 or this Section 14.7,
(iv) assignment of any right or interest in or under this
Agreement or any of the other Loan Documents by the Borrower,
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(v) waiver of any Event of Default under Section 11.1(a),
Section 11.1(f) or Section 11.1(g), and
(vi) amendment or release of the Guaranties, except in
connection with the permitted sale of an Unencumbered Project or
Unencumbered New York City Asset by a Guarantor.
(d) Administrative Agent Authority. Subject to the second
succeeding sentence of this subsection (d), the Administrative Agent may, but
shall have no obligation to, with the written concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of that
Lender. Notwithstanding anything to the contrary contained in this Section
14.7, no amendment, modification, waiver or consent shall affect the rights or
duties of the Administrative Agent under this Agreement and the other Loan
Documents, unless made in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action. Notwithstanding
anything herein to the contrary, in the event that the Borrower shall have
requested, in writing, that any Lender agree to an amendment, modification,
waiver or consent with respect to any particular provision or provisions of
this Agreement or the other Loan Documents, and such Lender shall have failed
to state, in writing, that it either agrees or disagrees (in full or in part)
with all such requests (in the case of its statement of agreement, subject to
satisfactory documentation and such other conditions it may specify) within
fifteen (15) days after such request, then such Lender hereby irrevocably
authorizes the Administrative Agent to agree or disagree, in full or in part,
and in the Administrative Agent's sole discretion, to such requests on behalf
of such Lender as such Lender's attorney-in-fact and to execute and deliver
any writing approved by the Administrative Agent which evidences such
agreement as such Lender's duly authorized agent for such purposes; provided,
however, that such request shall state, in capital letters that "FAILURE TO
RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT, SHALL BE
DEEMED AUTHORIZATION TO THE ADMINISTRATIVE AGENT WITH RESPECT TO THE ENCLOSED
REQUEST".
14.8. Notices. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall
be in writing and may be personally served, sent by facsimile transmission or
by courier service or United States certified mail and shall be deemed to have
been given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent pursuant to Articles II, IV or XII shall not be effective
until received by the Administrative Agent. For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 14.8) shall be (i) for the Borrower, as set forth
on its signature page to this Agreement, and (ii) for the Lenders, as set
forth on Schedule LC hereto or on the applicable Assignment and Acceptance by
which such party became a Lender hereunder, or, as to each party, at such
other address as may be designated by such party in a written notice to all of
the other parties to this Agreement.
14.9. Survival of Warranties and Agreements. All representations and
warranties made herein and all obligations of the Borrower in respect of
taxes, indemnification and expense reimbursement shall survive the execution
and delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans and, in the case of any Lender that may assign any
interest in its Term Loan Commitment, or Loans hereunder, shall survive the
making of such assignment, notwithstanding that such assigning Lender may
cease to be a "Lender" hereunder, and, except for the representations and
warranties, the termination of this Agreement
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other than any of the foregoing set forth in Section 13.1 or Section 13.2 or
Section 13.3 or Section 5.2(f), which shall survive for thirty (30) days after
termination of this Agreement.
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of the Administrative Agent or any Lender in the
exercise of any power, right or privilege under any of the Loan Documents
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise
of any such power, right or privilege preclude any other or further exercise
thereof or of any other right, power or privilege. All rights and remedies
existing under the Loan Documents are cumulative to and not exclusive of any
rights or remedies otherwise available.
14.11. Payments Set Aside. To the extent that the Borrower makes a
payment or payments to the Administrative Agent, the Arranger or any Lender or
any such Person exercises its rights of setoff, and such payment or payments
or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party, then to
the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all right and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
14.12. Severability. In case any provision in or obligation under
this Agreement or the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired
thereby.
14.13. Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement or be given any substantive effect.
14.14. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF
LAWS PRINCIPLES.
14.15. Limitation of Liability. No claim may be made by any Lender,
the Arranger, the Administrative Agent, or any other Person against any Lender
(acting in any capacity hereunder) or the Affiliates, directors, officers,
employees, attorneys or agents of any of them for any consequential or
punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated
by this Agreement, or any act, omission or event occurring in connection
therewith; and each Lender, the Arranger and the Administrative Agent hereby
waives, releases and agrees not to sue upon any such claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
14.16. Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto
and the successors and permitted assigns of the Lenders. Except as otherwise
provided in Section 10.6, the rights and obligations hereunder of the
Borrower, or any interest therein, may not be assigned without the written
consent of all Lenders (and any such attempted assignment without such consent
shall be null and void).
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14.17. Certain Consents and Waivers of the Borrower.
(a) Personal Jurisdiction. (i) EACH OF THE AGENTS, THE LENDERS,
AND THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION
OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN
CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE EXTENT PERMITTED BY LAW,
IN SUCH FEDERAL COURT. EACH OF THE AGENTS, THE LENDERS AND THE BORROWER AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. EACH OF THE AGENTS, THE LENDERS, AND THE BORROWER
WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL
HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN
ANY LOCATION NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND
THE LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT OR ANY LENDER. THE BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE ADMINISTRATIVE AGENT OR ANY
LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
(b) Service of Process. THE BORROWER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE BORROWER'S PROCESS AGENT OR THE BORROWER'S
NOTICE ADDRESS SPECIFIED IN SECTION 14.8 HEREOF, SUCH SERVICE TO BECOME
EFFECTIVE UPON RECEIPT. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR THE LENDERS TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
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(c) Waiver Of Jury Trial. EACH OF THE AGENTS AND THE LENDERS
AND THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
14.18. Counterparts; Effectiveness; Inconsistencies. This Agreement
and any amendments, waivers, consents, or supplements hereto may be executed
in counterparts, each of which when so executed and delivered shall be deemed
an original, but all such counterparts together shall constitute but one and
the same instrument. This Agreement shall become effective against the
Borrower and each Agent and Lender on the Closing Date. This Agreement and
each of the other Loan Documents shall be construed to the extent reasonable
to be consistent one with the other, but to the extent that the terms and
conditions of this Agreement are actually inconsistent with the terms and
conditions of any other Loan Document, this Agreement shall govern.
14.19. Limitation on Agreements. All agreements between the Borrower,
the Administrative Agent, the Arranger and each Lender in the Loan Documents
are hereby expressly limited so that in no event shall any of the Loans or
other amounts payable by the Borrower under any of the Loan Documents be
directly or indirectly secured (within the meaning of Regulation U) by Margin
Stock.
14.20. Disclaimers. The Administrative Agent, the Arranger and the
Lenders shall not be liable to any contractor, subcontractor, supplier,
laborer, architect, engineer, tenant or other party for services performed or
materials supplied in connection with any work performed on the Projects,
including any TI Work. The Administrative Agent, the Arranger and the Lenders
shall not be liable for any debts or claims accruing in favor of any such
parties against the Borrower or others or against any of the Projects. The
Borrower is not and shall not be an agent of any Agent, the Arranger or the
Lenders for any purposes and none of the Lenders, the Arranger, or the Agents
shall be deemed partners or joint venturers with Borrower. None of the
Administrative Agent, the Arranger or the Lenders shall be deemed to be in
privity of contract with any contractor or provider of services to any
Project, nor shall any payment of funds directly to a contractor or
subcontractor or provider of services be deemed to create any third party
beneficiary status or recognition of same by any of the Administrative Agent,
the Arranger or the Lenders and the Borrower agrees to hold the Administrative
Agent, the Arranger and the Lenders harmless from any of the damages and
expenses resulting from such a construction of the relationship of the parties
or any assertion thereof.
14.21. Entire Agreement. This Agreement, taken together with all of
the other Loan Documents, embodies the entire agreement and understanding
among the parties hereto and supersedes all prior agreements and
understandings, written and oral, relating to the subject matter hereof.
14.22. Confidentiality. Each of the Agents, the Arranger and the
Lenders agrees to keep confidential all non-public information provided to it
by the Borrower pursuant to this Agreement that is designated by the Borrower
as confidential; provided that nothing herein shall prevent the Agents or the
Lenders from disclosing any such information (a) to the Agents, any other
Lender or any Lender Affiliate (provided such Lender Affiliate is made aware
of the confidentiality of such information and agrees to keep such information
confidential), (b) to any Assignee, Participant or prospective Assignee or
Participant or any actual or prospective counterparty (or its advisors) to any
swap or derivative transactions relating to the Borrower and
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its Obligations (provided such Person is made aware of the confidentiality of
such information and agrees to keep such information confidential), (c) to the
employees, directors, agents, attorneys, accountants and other professional
advisors of any Lender, Assignee, Participant, prospective Assignee or
Participant who are advised of the provisions of this Section, (d) upon the
request or demand of any Governmental Authority having or asserting
jurisdiction over either Agent or any Lender, (e) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (f) if requested or required to do so in
connection with the exercise of any remedy hereunder or under any other Loan
Document, (g) upon the advice of counsel that such disclosure is required by
law, (h) with the consent of the Borrower, (i) in connection with any
litigation to which any Agent, Arranger or Lender is a party, or (j) to the
extent such information becomes publicly available other than as a result of a
breach of this Section 14.22 or becomes available to any Agent, Arranger or
Lender on a nonconfidential basis from a source other than the Borrower.
14.23. Intentionally Omitted.
14.24. USA Patriot Act. Each of the Lenders hereby notifies Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of
Pub.L.107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies Borrower, which
information includes the name and address of Borrower and other information
that will allow such Bank to identify Borrower in accordance with the Act.
Neither the execution and delivery of the Notes and the other Loan Documents
by the Borrower nor the use of the proceeds of the Loans, will violate the
Trading with the Enemy Act, as amended, or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or the Anti-Terrorism Order or any enabling legislation
or executive order relating to any of the same. Without limiting the
generality of the foregoing, none of the Borrower, the Company, nor any of
their respective Subsidiaries (a) is or will become a blocked person described
in Section 1 of the Anti-Terrorism Order or (b) engages or will engage in any
dealings or transactions or be otherwise associated with any such blocked
person in any manner which violates applicable law or regulation.
[Remainder of Page Intentionally Left Blank--Signature Pages to Follow]
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IN WITNESS WHEREOF the undersigned have duly executed this Agreement
as a sealed instrument as of the date first set forth above.
BORROWER:
---------
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
By: /s/ Jason Barnett
---------------------------------------
Name: Jason Barnett
Title: Executive Vice President
& General Counsel
Address for Notices:
225 Broadhollow Road
Melville, New York 11747
Attention: Michael Maturo
Telephone: 631-622-6630
Telecopy: 631-622-8994
Taxpayer Identification Number: 11-3233647
LENDERS:
CITICORP NORTH AMERICA, INC.,
individually and as Administrative Agent
By: /s/ David Bouton
---------------------------------------
Name: David Bouton
Title: Vice President
SCHEDULE LC
I. ADMINISTRATIVE AGENT
Citicorp North America, Inc.
Notice Address: 2 Penns Way, Suite 110
New Castle, DE 19720
Attention: Annemarie E. Pavco
Telecopy: 212-994-0849
II. LENDERS
a. Citicorp North America, Inc.
Notice Address, Domestic
and Eurodollar 2 Penns Way, Suite 110
Lending Office: New Castle, DE 19720
Attention: Annemarie E. Pavco
Telecopy: 212-994-0849
Eurodollar Affiliate: None
Pro Rata Share: 100%
Term Loan Commitment: $470,000,000.00
AMENDMENT NO. 1 TO THIRD
------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
This AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment No. 1") is made as of May 11, 2005 by and among (a) Reckson
Operating Partnership, L.P. (the "Borrower"), (b) the Lenders party hereto,
and (c) JPMorgan Chase Bank, N.A. (f/k/a JPMorgan Chase Bank) as
Administrative Agent (in such capacity, the "Administrative Agent") for the
Lenders.
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to a Third Amended and Restated Credit Agreement dated as of August 6,
2004 (the "Credit Agreement"), pursuant to which the Lenders have agreed to
make loans to the Borrower on the terms and conditions set forth therein;
WHEREAS, the Borrower has requested that the Lenders amend certain
provisions of the Credit Agreement, and the Lenders party hereto are willing
to so amend certain provisions of the Credit Agreement on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and fully intending to be legally bound by this Amendment
No. 1, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Credit Agreement.
2. Amendment to Credit Agreement. As of the Effective Date (as defined in
ss.4 hereof) Section 10.11(a) of the Credit Agreement is amended by restating
such Section 10.11(a) in its entirety to read as follows:
"(a) Indebtedness. Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any
Indebtedness, except (i) Total Outstanding Indebtedness which would
not exceed sixty percent (60%) of Total Value as of the date of
incurrence, (ii) Total Secured Outstanding Indebtedness which would
not exceed forty percent (40%) of Total Value as of the date of
incurrence or (iii) Total Recourse Secured Outstanding Indebtedness
which would not exceed ten percent (10%) of Total Value as of the
date of incurrence."
3. Provisions Of General Application.
3.1. Representations and Warranties. The Borrower hereby represents
and warrants as of the date hereof that (a) each of the representations
and warranties of the Borrower contained in the Credit Agreement, the
other Loan Documents or in any document or instrument delivered pursuant
to or in connection with the Credit Agreement or this Amendment No. 1 are
true and correct in all material respects as of the date as of which they
were made and are true and correct in all material respects at and as of
the date of this Amendment No. 1 (except to the extent that such
representations and warranties expressly speak as of a different date),
(b) no Potential Event of Default or Event of Default exists on the date
hereof, and (c) this Amendment No. 1 has been duly authorized, executed
and delivered by the Borrower and is in full force and effect as of the
Effective Date, and the agreements and obligations of the Borrower
contained herein constitute the legal, valid and binding obligations of
the Borrower, enforceable against it in accordance with its terms, except
to the extent that the enforcement hereof or the availability of
equitable remedies may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent transfer, fraudulent
conveyance or similar laws now or hereafter in effect relating to or
affecting creditors' rights generally or by general principles of equity,
or by the discretion of any court in awarding equitable remedies,
regardless of whether such enforcement is considered in a preceding in
equity or at law.
3.2. No Other Changes. Except as otherwise expressly provided or
contemplated by this Amendment No. 1, all of the terms, conditions and
provisions of the Credit Agreement remain unaltered and in full force and
effect. The Credit Agreement and this Amendment No. 1 shall be read and
construed as one agreement. The making of the amendments in this
Amendment No. 1 does not imply any obligation or agreement by the
Administrative Agent or any Lender to make any other amendment, waiver,
modification or consent as to any matter on any subsequent occasion.
3.3. Governing Law. This Amendment No. 1 shall be deemed to be a
contract under the laws of the State of New York. This Amendment No. 1
and the rights and obligations of each of the parties hereto are
contracts under the laws of the State of New York and shall for all
purposes be construed in accordance with and governed by the laws of such
State (excluding the laws applicable to conflicts or choice of law).
3.4. Assignment. This Amendment No. 1 shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
permitted successors and assigns.
3.5. Counterparts. This Amendment No. 1 may be executed in any
number of counterparts, but all such counterparts shall together
constitute but one and the same agreement. In making proof of this
Amendment No. 1, it shall not be necessary to produce or account for more
than one counterpart thereof signed by each of the parties hereto.
4. Effectiveness of this Amendment No. 1. This Amendment No. 1 shall
become effective on the date on which the following conditions precedent are
satisfied (such date being hereinafter referred to as the "Effective Date"):
(a) Execution and delivery to the Administrative Agent by the
Requisite Lenders, the Borrower, the Guarantors and the Administrative
Agent of this Amendment No. 1.
(b) Execution and delivery to the Administrative Agent of (i) a
certificate of the Borrower confirming that there have been no changes to
its charter documents since August 6, 2004, or (ii) if there have been
changes to the Borrower's charter document since such date, a secretary's
certificate of the Borrower certifying as to such changes.
(c) Delivery to the Administrative Agent of an incumbency
certificate of the Borrower and of resolutions of the board of directors
of the general partner of the Borrower authorizing this Amendment No. 1.
[Remainder of page left blank intentionally]
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Amendment No. 1 as of the date first set forth above.
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp., its general partner
By: /s/ Jason Barnett
-------------------------------------------------
Name: Jason Barnett
Title: Executive Vice Presieent & General Counsel
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent
By: Marc E. Costantino
-------------------------------------------------
Name: Marc E. Costantino
Title: Vice President
CITICORP NORTH AMERICA, INC.
By: /s/ David Bouton
-------------------------------------------------
Name: David Bouton
Title: Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS, INC.
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
KEYBANK, NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
---------------------------------------------
Name:
Title:
SCOTIABANC INC.
By:
---------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
---------------------------------------------
Name:
Title:
ING REAL ESTATE FINANCE (USA) LLC
By:
---------------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
Title:
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
---------------------------------------------
Name:
Title:
UBS LOAN FINANCE LLC
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
CHANG HWA COMMERCIAL BANK, LTD.
By:
---------------------------------------------
Name:
Title:
COMERICA BANK
By:
---------------------------------------------
Name:
Title:
EUROHYPO AG, NEW YORK BRANCH
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
FIRST HORIZON BANK, A DIVISION OF FIRST TENNESSEE BANK
N.A.
By:
---------------------------------------------
Name:
Title:
CITIZENS BANK OF RHODE ISLAND
By:
---------------------------------------------
Name:
Title:
Each of the undersigned Guarantors hereby acknowledges the foregoing Amendment
No. 1 and reaffirms its guaranty of the Guaranteed Obligations (as defined in
the Guaranty executed and delivered by such Guarantor) under the Credit
Agreement and the other Loan Documents, each as amended hereby or in
connection herewith, in accordance with the Guaranty executed and delivered by
such Guarantor.
RECKSON ASSOCIATES REALTY CORP.
By:
---------------------------------------------
Name:
Title:
RECKSON FS LIMITED PARTNERSHIP
By: Reckson Financing LLC, its general partner
By: Reckson Operating Partnership, L.P.,
its sole member
By: Reckson Associates Realty Corp., its
general partner
By:
---------------------------------------------
Name:
Title:
360 HAMILTON PLAZA, LLC
By: Reckson Operating Partnership, L.P., its sole member
By: Reckson Associates Realty Corp., its general
partner
By:
---------------------------------------------
Name:
Title:
METROPOLITAN PARTNERS LLC
By: Reckson Operating Partnership, L.P., its sole member
By: Reckson Associates Realty Corp., its general
partner
By:
---------------------------------------------
Name:
Title:
METROPOLITAN OPERATING PARTNERSHIP, L.P.
By: Metropolitan Partners LLC, its general partner
By: Reckson Operating Partnership, L.P., its sole
member
By: Reckson Associates Realty Corp., its
general partner
By:
---------------------------------------------
Name:
Title:
275 BROADHOLLOW LLC
By: RCG Holdings, Inc., its managing member
By:
---------------------------------------------
Name:
Title:
1055 WASHINGTON BOULEVARD LLC
By: Reckson Operating Partnership, L.P., its sole member
By: Reckson Associates Realty Corp., its general
partner
By:
---------------------------------------------
Name:
Title:
RM SQUARE, LLC
By: Reckson Operating Partnership, L.P., its sole member
By: Reckson Associates Realty Corp., its general
partner
By:
---------------------------------------------
Name:
Title: