Ex. 10.2
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MORTGAGE LOAN AGREEMENT
dated as of March 1, 1999
among
Tower Realty Operating Partnership, L.P.
The Banks Listed Herein
and
Fleet National Bank,
as Administrative Agent
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
as Syndication Agent and Arranger
and
NationsBank, N.A.,
as Documentation Agent
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MORTGAGE LOAN AGREEMENT
THIS MORTGAGE LOAN AGREEMENT dated as of March 1, 1999 by and among
TOWER REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the
"Borrower"), the BANKS listed on the signature pages hereof FLEET NATIONAL BANK,
as Administrative Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., as Syndication Agent and Arranger,
and NATIONSBANK, N.A., as Documentation Agent.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used but not defined
herein shall have the meanings ascribed thereto in the Revolving Credit
Agreement and the following terms, as used herein, have the following meanings:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.4(b).
"Administrative Agent" means Fleet, in its capacity as administrative
agent for the Banks hereunder, and its successors in such capacity.
"Agents" means the Administrative Agent, the Syndication Agent, the
Arranger and the Documentation Agent, and "Agent" means any of them.
"Agreement" means this Mortgage Loan Agreement, as the same may from
time to time hereafter be modified, supplemented or amended, as permitted
herein.
"Applicable Margin" means, with respect to the Mortgage Loan which is
then a Euro-Dollar Loan or Base Rate Loan, as applicable, the respective
percentages per annum determined as of the Closing Date and thereafter at any
time, based on the Leverage Ratio (as determined under the Revolving Credit
Agreement) as of the date of determination, in accordance with the table set
forth below. Any change in the Leverage Ratio shall be effective as of the
financial reporting dates set forth in Section 5.1 of the Revolving Credit
Agreement or as of
the date of any Borrowing under the Revolving Credit Agreement on which the
Leverage Ratio changes.
Applicable Margin Applicable
for Base Rate Margin for Euro-
Loans Dollar Loans
Leverage Ratio (% per annum) (% per annum)
----------------- ------------------- ------------------------
<30% 0.000 1.250
30% to <45% 0.125 1.375
45% to <55% 0.375 1.625
Notwithstanding the foregoing, however, if the sale of the outstanding shares of
the Company to Reckson Associates Realty Corp., or an affiliate thereof, shall
not have closed on or before May 31, 1999, then the Applicable Margin, as of
May 31, 1999, shall be as follows:
Applicable Margin Applicable
for Base Rate Margin for Euro-
Loans Dollar Loans
Leverage Ratio (% per annum) (% per annum)
----------------- ------------------ -----------------------
<30% 0.000 1.625
30% to <45% 0.125 1.750
45% to <55% 0.375 2.000
"Arranger" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
"Assignment of Leases and Rents" means the Assignment of Leases and
Rents, dated as of the date hereof, by the Borrower, as assignor, in favor of
Administrative Agent for the benefit of the Banks, as assignee.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to the provisions, as incorporated herein
pursuant to Article V hereof, of Section 9.6(c) of the Revolving Credit
Agreement, and their respective successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day or (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
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"Base Rate Loan" means the Mortgage Loan designated as or converted to
a Base Rate Loan in accordance with the applicable Notice of Interest Rate
Election or pursuant to the terms of this Agreement.
"Borrower" means Tower Realty Operating Partnership, L.P.
"Closing Date" means the date of this Agreement.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof (and for each Bank
which is an Assignee, the amount set forth in the Assumption Agreement entered
into pursuant to the provisions, as incorporated herein pursuant to Article V
hereof, of Section 9.6(c) of the Revolving Credit Agreement.
"Company" means Tower Realty Trust, Inc., a Maryland corporation
qualified as a real estate investment trust.
"Documentation Agent" means NationsBank, N.A.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Boston, Massachusetts are authorized by
law to close.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Loan" means the Mortgage Loan designated as or converted
to a Euro-Dollar Loan in accordance with the applicable Notice of Interest
Rate Election.
"Event of Default" has the meaning set forth in Section 4.1.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by ▇▇▇▇▇-
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al funds brokers on such day, as published by the Federal Reserve Bank of New
York on the Domestic Business Day next succeeding such day, provided that (i) if
such day is not a Domestic Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business Day, and (ii) if no
such rate is so published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to Fleet on
such day on such transactions as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System as constituted from time to time.
"Fleet" means Fleet National Bank.
"Guarantor" means the Company.
"Interest Period" means: (1) with respect to the Mortgage Loan if then
a Euro-Dollar Loan, the period commencing on the date thereof or the applicable
Notice of Interest Rate Election and ending one, two, three or six months
thereafter, as the Borrower may elect on the date hereof or in the applicable
Notice of Interest Rate Election; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of
a calendar month; and
(c) if any Interest Period includes a date on which a payment of
principal of the Loans is re-
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quired to be made under Section 2.6 but does not end on such date, then (i) the
principal amount (if any) of such Euro-Dollar Loan required to be repaid on such
date shall have an Interest Period ending on such date and (ii) the remainder
(if any) of such Euro-Dollar Loan shall have an Interest Period determined as
set forth above.
(2) with respect to the Mortgage Loan, if then a Base Rate Loan, the period
commencing on the date thereof or in the applicable Notice of Interest Rate
Election and ending 30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is not a
Domestic Business Day shall be extended to the next succeeding Domestic Business
Day; and
(b) if any Interest Period includes a date on which a payment of
principal of the Mortgage Loan is required to be made under Section 2.6 but
does not end on such date, then (i) the principal amount (if any) of such Base
Rate Loan required to be repaid on such date shall have an Interest Period
ending on such date and (ii) the remainder (if any) of such Base Rate Loan shall
have an Interest Period determined as set forth above.
"Loan" means the portion the Mortgage Loan made by a Bank pursuant to
this Loan Agreement and further evidenced and secured by the Loan Documents,
whether designated a Base Rate Loan or a Euro-Dollar Loan and "Loans" means each
such Loan, collectively.
"Loan Amount" shall mean the amount of Sixty Million Dollars
($60,000,000).
"Loan Documents" means this Agreement, the Restated Mortgage Note, the
Split Mortgage Notes, the Mortgage, the Assignment of Leases and Rents and the
Mortgage Loan Guaranty.
"London Interbank Offered Rate" has the meaning set forth in Section
2.4(b).
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"Maturity Date" shall have the meaning set forth in Section 2.5.
"Merrill" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation.
"Mortgage" means the Amended and Restated Mortgage Agreement, dated as
of the date hereof, by the Borrower, as mortgagor, in favor of Administrative
Agent for the benefit of the Banks, as mortgagee.
"Mortgage Loan" means the mortgage loan made pursuant to this
Agreement and evidenced and secured by the Restated Mortgage Note (as split by
the Split Mortgage Notes), the Mortgage, and the other Mortgage Loan Documents.
"Mortgage Loan Documents" means the Restated Mortgage Note, the Split
Mortgage Notes, the Mortgage, the Assignment of Leases and Rents, the Mortgage
Loan Guaranty, and all other agreements, documents and instruments now or
hereafter evidencing or securing the Mortgage Loan.
"Mortgage Loan Guaranty" means that certain Unconditional Mortgage
Loan Guaranty Agreement, dated as of the date hereof, by the Company, as the
same may be amended, supplemented, modified or restated from time to time.
"Non-Recourse Party" has the meaning ascribed thereto in Section 9.15
of the Revolving Credit Agreement.
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.11(a). A form of Notice of Interest Rate Election is attached hereto
as Exhibit A.
"Person" means an individual, a corporation, a partnership, an
association, a trust, limited liability company or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
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"Prime Rate" means the rate of interest publicly announced by Fleet
National Bank in Boston, Massachusetts from time to time as its Prime Rate.
"Restated Mortgage Note" means the Consolidated, Amended and Restated
Mortgage Note, in the original principal amount of $60,000,000.00, dated as of
the date hereof, by the Borrower, as maker, in favor of Administrative Agent for
the benefit of the Banks, as payee.
"Reuters Screen LIBO Page" shall mean the display designated as page
"LIBO" on the Reuters Monitor Money rates Service (or such other page as may
replace the LIBO page on such service) for the purpose of displaying interbank
rates from London in U.S. dollars.
"Revolving Credit Agreement" means the Revolving Credit Agreement,
dated as of October 20, 1997 by and among the Borrower, as borrower, the Banks
listed on the signature pages thereof, Fleet, as Administrative Agent, ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., as Syndication Agent and Arranger, and NationsBank, N.A., as
Documentation Agent, as amended by the First Amendment to Revolving Credit
Agreement, dated as of the date hereof and as the same may hereafter be further
amended, supplemented, modified or restated from time to time.
"Split Mortgage Note" means a Split Mortgage Note, dated as of the
date hereof, by the Borrower, as maker, in favor of a Bank, as payee, pursuant
to which a portion of the Restated Mortgage Note in the amount of such Bank's
Loan has been split from the indebtedness thereunder and become payable directly
to such Bank, and "Split Mortgage Notes" means each Split Mortgage Note,
collectively.
"Syndication Agent" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
"Telerate Page 3750" means the display designated as "Page 3750" on
the Dow ▇▇▇▇▇ Telerate Service (or such other page as may replace Page 3750 on
that service) or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for U.S. dollar deposits.
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"Term" has the meaning set forth in Section 2.5.
SECTION 1.2. Type of Loan. The term "Mortgage Loan" denotes the
aggregation of Loans by the Banks to be made to the Borrower comprising the
Mortgage Loan on the date hereof. The Mortgage Loan shall be classified for
purposes of this Agreement by reference to the interest rate election made with
respect thereto (e.g., the Mortgage Loan shall be classified a "Euro-Dollar Rate
Loan" if an election is made by the Borrower for the Mortgage Loan to be a
Euro-Dollar Rate Loan).
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend. On the Closing Date, each Bank
severally agrees, on the terms and conditions set forth in this Agreement, to
make its respective Loan to the Borrower. The Loans under this Section 2.1 shall
be made from the several Banks ratably in the amounts of their respective
Commitments. Subject to the terms and provisions of this Agreement, the Borrower
shall, to the extent required by Section 2.6, or may, to the extent permitted by
Section 2.7, prepay the Mortgage Loan at any time during the Term. All or any
portion of the Mortgage Loan repaid or prepaid by the Borrower may not be
reborrowed.
SECTION 2.2. Notes. The Mortgage Loan shall initially be evidenced by
the Restated Mortgage Note. The indebtedness evidenced by the Restated Mortgage
Note shall, immediately after issuance thereof, be split so that each portion of
the indebtedness comprising a Loan payable to a Bank shall be evidenced by a
single Split Mortgage Note payable to the order of such Bank for the account of
its Applicable Lending Office in an amount equal to the initial principal amount
of such Bank's Loan. The Split Notes collectively evidence the same
indebtedness, in the aggregate, evidenced by the Restated Mortgage Note and do
not evidence indebtedness which is duplicate, additional, substitute or novated
with respect to the indebtedness evidenced by the Restated Mortgage Note.
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SECTION 2.3. Maturity of Loans. The Mortgage Loan shall mature, and
the principal amount thereof shall be due and payable, on the Maturity Date.
SECTION 2.4. Interest Rates.
(a) If a Base Rate Loan, the Mortgage Loan shall bear interest on the
outstanding principal amount thereof for each day from the date the Mortgage
Loan is made (or converted to a Base Rate Loan) until the date it is repaid at a
rate per annum equal to the Base Rate plus the Applicable Margin for a Base Rate
Loan for such day. Such interest shall be payable for each Interest Period on
the last day thereof.
(b) If a Euro-Dollar Loan, the Mortgage Loan shall bear interest on
the outstanding principal amount thereof, for each day during the Interest
Period applicable thereto, at a rate per annum equal to the sum of the
Applicable Margin for a Euro-Dollar Loan for such day plus the Adjusted London
Interbank Offered Rate applicable to such Interest Period. Such interest shall
be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than one month, at intervals of thirty days after the
first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period
means the rate (expressed as a percentage per annum rounded upwards, if
necessary, to the nearest one sixteenth (1/16) of one percent (1%)) for deposits
in U.S. Dollars for a period of time comparable to such Interest Period that
appears on Telerate Page 3750 as of 11:00 a.m., London time, two Euro-Dollar
Business Days before the first day of such Interest Period. If such rate does
not appear on Telerate Page 3750 as of 11:00 a.m., London time, two Euro-Dollar
Business Days before the first day of such Interest Period, the London Interbank
Offered Rate will be the arithmetic mean of the offered rates (expressed as a
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percentage per annum rounded upwards, if necessary, to the nearest one sixteenth
(1/16) of one percent (1%)) for deposits in U.S. dollars for a one (1) month
period that appear on the Reuters Screen LIBO Page as of 11:00 a.m., London
time, two Euro-Dollar Business Days before the first day of such Interest
Period, if at least two such offered rates so appear. If fewer than two such
offered rates appear on the Reuters Screen LIBO Page as of 11:00 a.m., London
time, on any such date, the Administrative Agent will request the principal
London office of any four (4) major reference banks in the London interbank
market selected by the Administrative Agent to provide such bank's offered
quotation (expressed as a percentage per annum rounded upwards, if necessary, to
the nearest one sixteenth (1/16) of one percent (1%)) to prime banks in the
London interbank market for deposits in U.S. dollars for a period comparable to
such Interest Period as of 11:00 a.m., London time, on such date for amounts
comparable to the then outstanding principal amount of the applicable Loan (if
available). If at least two such offered quotations are so provided, LIBOR will
be the arithmetic mean of such quotations. If fewer than two such quotations
are so provided, the Administrative Agent will request any three (3) major banks
in New York City selected by the Administrative Agent to provide such bank's
rate (expressed as a percentage per annum rounded upwards, if necessary, to the
nearest one sixteenth (1/16) of one percent (1%)) for loans in U.S. dollars to
leading European banks for a period comparable to such Interest Period as of
approximately 11:00 a.m., New York City time, on the date which is two
Euro-Dollar Business Days before the first day of such Interest Period for
amounts comparable to the then outstanding principal amount (if available) of
such Loan. If at least two such rates are so provided, the London Interbank
Offered Rate will be the arithmetic mean of such rates. If fewer than two
rates are so provided, then the London Interbank Offered Rate will be the rate
provided.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
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respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar 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). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(c) In the event that, and for so long as, any Event of Default shall
have occurred and be continuing, the outstanding principal amount of the
Mortgage Loan, and, to the extent permitted by applicable law, overdue interest
in respect thereof, shall bear interest at the annual rate of the sum of the
Prime Rate and four percent (4%).
(d) The Administrative Agent shall determine each interest rate
applicable to the Mortgage Loan hereunder. The Administrative Agent shall give
prompt notice to the Borrower and the participating Banks of each rate of
interest so determined, and its determination thereof shall be conclusive in the
absence of manifest error.
(e) The Administrative Agent agrees to use its best efforts to obtain
quotations of the London Interbank Offered Rate as contemplated by this Section.
If the Administrative Agent does not obtain a timely quotation, the provisions
of Section 8.1 shall apply.
SECTION 2.5. Mandatory Termination. The term (the "Term") of the
Mortgage Loan shall terminate and expire on October 20, 2000 (or, if such date
is not a Domestic Business Day, then the next succeeding Domestic Business Day)
(the "Maturity Date").
SECTION 2.6. Mandatory Prepayment.
(a) The Mortgage Loan shall immediately mature upon the occurrence of
any Mandatory Prepayment Event (as such term is defined in the Revolving Credit
Agreement).
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(b) Prepayments of the Mortgage Loan pursuant to this Section 2.6
shall be applied to prepay ratably the Loans of the Banks. In connection with
the prepayment of a Euro-Dollar Loan prior to the maturity thereof, the Borrower
shall also pay any applicable expenses pursuant to Section 2.9.
SECTION 2.7. Optional Prepayments.
(a) The Borrower may, upon at least two (2) Domestic Business Days'
notice to the Administrative Agent, prepay the Mortgage Loan, if then a Base
Rate Loan, in whole at any time, or from time to time in part, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Banks.
(b) Except as provided pursuant to the terms, as incorporated herein
pursuant to Article V hereof, of Section 8.2 of the Revolving Credit Agreement,
the Borrower may not prepay all or any portion of the principal amount of the
Mortgage Loan, if then a Euro-Dollar Loan, prior to the date applicable for the
payment of interest hereunder with respect to the applicable Interest Period
unless the Borrower shall also pay any applicable expenses pursuant to Section
2.9. Notice of such prepayment shall be delivered to the Administrative Agent by
Borrower, upon at least three (3) Domestic Business Days' notice. Each such op-
tional prepayment shall be applied to prepay ratably the Loans of the Banks.
(c) Any amounts prepaid pursuant to Sections 2.7(a) or (b) may not be
reborrowed.
SECTION 2.8. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest
on, the Mortgage Loan and of the fees required hereunder, not later than 11:00
a.m. (New York City time) on the date when due, in Federal or other funds
immediately available to the Administrative Agent at its address referred to in
Section 9.1 of the Revolving Credit Agreement. Whenever any payment of principal
of, or interest on, the Mortgage Loan, if then
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a Base Rate Loan, or of fees required hereunder shall be due on a day which is
not a Domestic Business Day, the date for payment thereof shall be extended to
the next succeeding Domestic Business Day. Whenever any payment of principal
of, or interest on, the Mortgage Loan, if then a Euro-Dollar Loan, shall be due
on a day which is not a Euro-Dollar Business Day, the date for payment thereof
shall be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business Day. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may (but
shall have no obligation to), in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent that the Borrower shall not have so made such
payment, each Bank shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.9. Funding Losses. If the Borrower makes any payment of
principal with respect to the Mortgage Loan, if then a Euro-Dollar Loan
(pursuant to Article II hereof or pursuant to the terms, as incorporated herein
by Article V hereof, of Article VI or VIII of the Revolving Credit Agreement or
otherwise), on any day other than the last day of the Interest Period applicable
thereto (other than the last day of a Euro-Dollar Period as established in
clause (1)(c) of the definition of Interest Period), or the last day of an
applicable period fixed pursuant to Section 2.4(b), or in the event of any
mandatory prepayment under Section 2.6 hereof, then and only then shall Borrower
reimburse
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each Bank within 15 days after demand therefor for any resulting loss or expense
reasonably incurred by it (or by a Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment or failure to borrow; provided that such Bank shall have
delivered to the Borrower a certificate signed by an authorized officer of such
Bank as to the amount of such loss or expense reasonably incurred, which
certificate shall be conclusive in the absence of manifest error.
SECTION 2.10. Computation of Interest and Fees. Interest and fees
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed (including the first day but excluding the last day).
SECTION 2.11. Method of Electing Interest Rates.
(a) The Mortgage Loan shall bear interest initially at the type of
rate specified by the Borrower in connection with the closing of the Mortgage
Loan. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne thereby (subject in each case to the
provisions, as incorporated herein by Article V hereof, of Article VIII of the
Revolving Credit Agreement), as follows:
(i) if at the time the Mortgage Loan is a Base Rate Loan, the
Borrower may elect to convert such Mortgage Loan to a Euro-Dollar Loan as of any
Euro-Dollar Business Day;
(ii) if at the time the Mortgage Loan is a Euro-Dollar Loan, the
Borrower may elect to convert such Mortgage Loan to a Base Rate Loan or elect to
continue such Mortgage Loan as a Euro-Dollar Loan for an additional Interest
Period, in each case effective on the last day of the then current Interest
Period applicable to such Mortgage Loan.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent at least three (3) Euro-Dollar
Business Days before the conversion or continuation selected in
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such notice is to be effective (unless the Mortgage Loan is to be continued as a
Base Rate Loan, in which case such notice shall be delivered to the
Administrative Agent no later than 12:00 Noon (New York City time) at least one
(1) Domestic Business Day before such continuation is to be effective). A
Notice of Interest Rate Election shall apply to the entire Mortgage Loan;
provided that (i) the Mortgage Loan may not be continued as, or converted into,
a Euro-Dollar Loan when any Event of Default has occurred and is continuing,
and (ii) no Interest Period shall extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the provisions of
subsection (a) above;
(ii) if the Mortgage Loan is to be converted, the new type of
Mortgage Loan and, if such new type is a Euro-Dollar Loan, the duration of the
initial Interest Period applicable thereto; and
(iii) if such Mortgage Loan is to be continued as a Euro-Dollar Loan
for an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall notify
each Bank on the same day as it receives such Notice of Interest Rate Election
of the contents thereof and such notice shall not thereafter be revocable by the
Borrower. If the Borrower fails to deliver a timely Notice of Interest Rate
Election to the Administrative Agent and the Mortgage Loan is at the time a
Euro-Dollar Loan, such Mortgage Loan shall be converted into a Base Rate Loan on
the last day of the then current Interest Period applicable thereto.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Incorporation of Representations and Warranties from the
Revolving Credit Agreement. All of the representations and warranties of the
Borrower set forth in Article IV of the Revolving Credit Agreement are by this
reference incorporated in this Agreement as though fully set forth herein and
are hereby made by the Borrower.
SECTION 3.2. Inducement. In order to induce the Administrative Agent
and each of the other Banks which may become a party to this Agreement to make
the Mortgage Loan, the Borrower makes the representations and warranties
incorporated by reference pursuant to Section 3.1 as of the Closing Date. Such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the other Mortgage Loan Documents and
the making of the Mortgage Loan.
ARTICLE IV
DEFAULTS
SECTION 4.1. Events of Default. The occurrence and continuation of
one or more of the following events (each, an "Event of Default") shall
constitute an event of default hereunder:
(a) the Borrower shall fail to (i) pay when due any principal or
interest on the Mortgage Loan, or (ii) pay when due any fees or any other amount
payable hereunder and such failure to pay fees or other amounts shall continue
for three (3) Domestic Business Days;
(b) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a)
above) for 30 days after written notice thereof has been given to the Borrower
by the Administrative Agent at the request of any Bank;
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(c) any representation, warranty, certification or statement made by
the Borrower in this Agreement or in any Mortgage Loan Document or any
certificate or other document delivered pursuant to this Agreement shall prove
to have been incorrect in any material respect when made (or deemed made);
(d) any default beyond applicable grace and cure shall have occurred
under the Restated Note, the Split Mortgage Notes, the Mortgage, the Assignment
of Leases and Rents, the Mortgage Loan Guaranty or any other Mortgage Loan
Document; or
(e) any "Event of Default" (as such term is defined in the Revolving
Credit Agreement) shall have occurred under the Revolving Credit Agreement.
ARTICLE V
INCORPORATION OF TERMS OF
REVOLVING CREDIT AGREEMENT; CONSTRUCTION AND CONFLICT
SECTION 5.1. Incorporation of Terms. For purposes of (i) the
relationships among the Banks, among the Banks and the Agents and between and
among the Borrower, the Company, the Agents and the Banks, and all or any subset
of such relationships; (ii) the provision, existence and exercise of remedies;
(iii) affirmative and negative covenants; (iv) defined terms; (v) miscellaneous
provisions set forth in Article IX of the Revolving Credit Agreement, including,
without limitation, the recourse provisions of Section 9.15; and (vi) any other
purpose in connection with the course of dealing among the parties hereto and
the making, enforcement and administration of the Mortgage Loan, the provisions
of the Revolving Credit Agreement, excluding the provisions of Article II and
Section 6.1 thereof, are incorporated in this Agreement by this reference and
are hereby made applicable to the Mortgage Loan, subject in any event to the
terms of Section 5.2.
SECTION 5.2. Construction; Conflicts.
(a) To the extent that any provision in this Agreement has a
corresponding provision in the Revolving
-18-
Credit Agreement, the applicable provisions of this Agreement shall control.
(b) In furtherance of the provisions of Section 5.2(a), to the extent
that any conflict exists between the terms of this Agreement and the terms of
the Revolving Credit Agreement, the terms of this Agreement shall control and
any such conflict shall be resolved by the Administrative Agent in its sole
discretion.
(c) Nothing contained in Section 5.1 shall be construed to effect the
result that the Mortgage Loan shall be converted from a term loan into a
revolving credit facility.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER: TOWER REALTY OPERATING PARTNER-
SHIP, L.P.
By: Tower Realty Trust, Inc.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President Finance &
Administration and
Chief Financial Officer
BANKS:
Commitment
$7,500,000 BANK ONE ARIZONA, N.A., as a Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
Title: Vice President
Commitment
$7,500,000 FLEET NATIONAL BANK, as a Bank
and as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Commitment
$7,500,000 KEYBANK, NATIONAL ASSOCIATION, as a
Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Commitment
$7,500,000 NATIONSBANK, N.A., as a Bank and
as Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: VP
Commitment
$7,500,000 SOCIETE GENERALE, as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Commitment
$6,000,000 FIRST AMERICAN BANK TEXAS,
S.S.B., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Commitment
$16,500,000 ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as a Bank
By:/s/ ▇▇▇▇▇ Dysenchuly
---------------------
Name: ▇▇▇▇▇ Dysenchuly
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., as
Syndication Agent and Arranger
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇,
INCORPORATED
By:/s/ ▇▇▇▇▇ Dysenchuly
----------------------
Name: ▇▇▇▇▇ Dysenchuly
Title: Vice President
EXHIBIT A
(Form of Notice of Interest Rate Election)
[Date]
To: Fleet National Bank ("Administrative Agent"), as
Administrative Agent for the Banks party to the Mortgage
Loan Agreement dated as of March 1, 1999 (the "Loan -
Agreement") among Tower Realty Operating Partnership,
L.P., and the Banks party thereto, as banks, the
Administrative Agent, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., as
Syndication Agent and Arranger, and NationsBank, N.A. as
Documentation Agent
Ladies and Gentlemen:
Reference is hereby made to the Loan Agreement.
The Borrower hereby gives you notice pursuant to Section 2.11(a) of
the Loan Agreement that the Borrower elects to1:
(a) Convert $______ , the current outstanding principal of the
Mortgage Loan from a Base Rate Loan to a Euro-Dollar Loan on ____, 199__.2
The Euro-Dollar Interest Period for such Euro-Dollar Loan is requested to be
[one/two/three/six] months.
(b) Convert $_____ , the current outstanding principal of the Mortgage
Loan with a current Euro-Dollar Interest Period ending on _____, 199__.3 to
Base Rate Loans.
------------------------
1 Include those items that are applicable, completed appropriately for
the circumstances.
2 Date of conversion must be a Euro-Dollar Business Day.
3 Date of conversion may only be the last day of the Euro-Dollar Interest
Period for such Euro-Dollar Loans.
(c) Continue as a Euro-Dollar Loan $________, the current outstanding
principal amount of the Mortgage Loan, which is now a Euro-Dollar Loan with a
current Euro- Dollar Interest Period ending on _______, 199__.4 The succeeding
Euro-Dollar Interest Period for such Euro-Dollar Loan is requested to be
[one/two/three/six] month[s].
The Borrower hereby certifies that no Event of Default has occurred
and is continuing under the Loan Agreement.
Borrower: TOWER REALTY OPERATING PARTNERSHIP, L.P.
By: Tower Realty Trust, Inc., its sole
general partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
-----------------
4 Date of conversion may only be the last day of the Euro-Dollar Interest
Period for such Euro-Dollar Loans.
