Exhibit 10(xxxiii)(a)
AMENDED AND RESTATED
REIMBURSEMENT AGREEMENT
between
WFP TOWER D CO. L.P.
and
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
Premises
Parcel D
Battery Park City -- World Financial Center
New York, New York
Dated as of
November 21, 1996
AMENDED AND RESTATED REIMBURSEMENT AGREEMENT
TABLE OF CONTENTS
Page
----
Recitals 1
Article 1 - Reimbursements............................................. 3
Article 2 - [Intentionally Omitted].................................... 17
Article 3 - Assignment................................................. 17
Article 4 - Notices.................................................... 18
Article 5 - No Broker.................................................. 21
Article 6 - Amendment.................................................. 22
Article 7 - Termination................................................ 23
Article 8 - Integration; Conflict
with Other Agreements.................................... 24
Article 9 - Miscellaneous.............................................. 25
Article 10 - Definitions................................................ 29
Exhibit A - Description of Ground Lease D
Exhibit B - List of Uninsurable Casualties
Exhibit C - Form of Assignment and Assumption Agreement
AMENDED AND RESTATED REIMBURSEMENT AGREEMENT, made as of November 21, 1996
and effective as of February 26, 1988, between WFP TOWER D CO. L.P.
("Landlord"), a New York limited partnership having an office at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED ("Tenant"), a New York corporation having an office c/o Merrill
▇▇▇▇▇ & Co., Inc., World Financial Center, North Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (this "Agreement").
RECITALS
A. Landlord, the successor-in-interest to WFC Tower D Company ("WFC"), is
the owner of the interest and estate of the tenant under that certain lease
("Ground Lease D") described in Exhibit A annexed hereto and made a part hereof,
covering the land known as Parcel D ("Parcel D" or the "Parcel") more
particularly described in Ground Lease D, and the buildings and other
improvements now or hereafter erected thereon (such buildings and improvements
collectively, "Building D" or the "Building"). Parcel D is located in the
project (the "Project") known as the World Financial Center at Battery Park City
in the City, County and State of New York.
B. WFC and ▇▇▇▇▇▇▇ ▇▇▇▇▇/WFC/L, Inc. ("ML/WFC"), the
predecessor-in-interest to Tenant, entered into that certain Agreement of Lease
dated as of February 26, 1988, as amended by the First Amendment of Lease dated
as of September 29,
1988 and the Second Amendment of Lease dated as of the date hereof
(collectively, "Lease D" or the "Lease") whereby, among other things, WFC
demised and leased to ML/WFC Parcel D and Building D (except for certain
excluded portions of such Building) (collectively, the "Premises" or "Premises
D"), and ML/WFC hired Premises D from WFC, all upon and subject to the terms,
covenants and conditions set forth in the Lease. WFC's interest in the Lease has
as of the date hereof been assigned to Landlord.
C. Any capitalized term used in this Agreement which is not defined in
this Agreement shall have the meaning provided for such term in the Lease,
unless expressly provided otherwise; and all capitalized terms which are defined
in this Agreement shall be defined in or listed with cross references in Article
10 hereof.
D. Solely for purposes of facilitating Landlord's financing, the Lease
imposes upon Tenant obligations to perform certain actions and make certain
payments on behalf of and for the benefit of Landlord. In order to carry out the
true intent of Landlord and Tenant with respect to such obligations under the
Lease, Landlord and Tenant agree that Landlord shall make certain reimbursements
to Tenant, in accordance with the terms, covenants and conditions of this
Agreement, which amends and restates in its entirety the Reimbursement Agreement
between WFC and ML/WFC, dated as of August 24, 1984, as amended by the First
Amendment to
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Building D Agreement to Lease, Leasehold Improvements Agreement and
Reimbursement Agreement, dated as of July 12, 1985, as further amended by the
Second Amendment to Reimbursement Agreement, dated February 26, 1988
(collectively, the "Original Reimbursement Agreement"), which has been assigned
by ML/WFC to Tenant and which has been assigned by WFC to, and assumed by,
Landlord.
ACCORDINGLY, the parties hereto hereby agree that the Original
Reimbursement Agreement is hereby amended and restated in its entirety by this
Agreement, which shall have the terms, covenants and conditions hereinafter set
forth without reference to prior agreements or amendments.
ARTICLE 1
REIMBURSEMENTS
1.1. (a) Notwithstanding anything which may be to the contrary in the
Lease, during the Original Term of the Lease (except as otherwise provided in
Section 1.1.(c) and subject to the provisions of Section 1.8. hereof), Landlord
shall reimburse Tenant for:
(i) the actual and reasonable cost of any Restoration of the Building
necessitated by damage due to any of the causes which Landlord and Tenant have
agreed are not insurable, which causes are listed in Exhibit B annexed hereto
and made a part hereof;
(ii) the actual and reasonable cost of repairing any latent defect in the
Building of which Landlord is given
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notice during the Original Term of the Lease, but only to the extent such cost
is not covered by (x) any of the manufacturers' or contractors' warranties
assigned to Tenant pursuant to the Leasehold Improvements Agreement dated as of
August 24, 1984 between WFC (formerly known as Olympia & York Tower D Company)
and ML/WFC, as amended (the "LIA") which are applicable to the latent defect in
question, provided that Tenant, prior to seeking reimbursement from Landlord
under this Section 1.1.(a), shall either (1) use its reasonable efforts to
enforce such warranties or (2) reassign to Landlord and give Landlord a
reasonable period of time in which to enforce such warranties, or (y) Tenant's
casualty insurance (and would not be covered by Tenant's casualty insurance if
Tenant, subject to Exhibit B, were carrying all of the casualty insurance
required to be carried by Tenant under Article 7 of the Lease);
(iii) the actual and reasonable costs of any Restoration performed by
Tenant pursuant to Section 9.03(b) of the Lease as a result of any partial
condemnation, but only to the extent that such actual and reasonable costs
exceed the award received by or made available to Tenant for such Restoration;
(iv) the amount that the abatement of Fixed Rents on account of any
partial condemnation is less than the amount determined by the calculation
prescribed in Section 9.03(d) of the Lease because Tenant is required under such
Section
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to pay Fixed Rents in a sufficient amount to cover Landlord's debt service for
the First Mortgage, which amount shall be payable in installments at the times
the installments of Fixed Rent to which such reimbursement pertains are payable
under Lease D;
(v) the actual and reasonable costs of any work performed by Tenant
pursuant to Section 30.01(b) or 30.02 of the Lease to preserve Building D from
injury or damage due to any excavation on adjacent property, provided that prior
to seeking reimbursement from Landlord under this Section 1.1.(a)(v), Tenant
shall either (x) use reasonable efforts to obtain reimbursement for such cost
from the Person who caused such excavation, or (y) assign to Landlord Tenant's
right to receive such reimbursement from such Person;
(vi) the amounts, if any, paid (and not deducted by Tenant from any other
Rental or paid to Tenant by the tenant under O&Y Lease D or on its behalf) by
Tenant pursuant to Sections 3.01(j)(ii), 3.01(m)(iv), 3.02, 3.04, 3.05, 3.08,
4.01, 4.03, 5.01, 7.01(a), 12.01, 12.02, 12.03 and 14.01 of the Lease on account
of any portions of Parcel D which are not part of the Premises, each of which
amounts shall be payable by Landlord not more often than Tenant is required to
pay the item with respect to which such reimbursement is being made; and
(vii) the amount, if any, paid by Tenant as Rental pursuant to Section
9.01(a) of the Lease with respect to the
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period commencing on the date of taking (as such term is defined in the Lease)
and ending on the date payment is made to Landlord or on its behalf pursuant to
Section 9.01(c)(ii) of the Lease, which amount shall be payable in installments
at the times the installments of Fixed Rent or other Rental to which such
reimbursement pertains are payable under the Lease.
(b) For purposes of Section 1.1.(a), "latent defect" shall not include any
damage or destruction from fire or other casualty, or any damage from ordinary
or extraordinary wear and tear, or any damage caused by the negligence or wilful
misconduct of Tenant, its Affiliates or Subtenants (or their respective agents,
servants, employees, invitees and contractors), other than Landlord or its
Affiliates (or their respective agents, servants, employees, invitees and
contractors), but shall be limited to failures and flaws in the materials,
fixtures, equipment and systems included in the Work (as defined in the LIA) or
in the design thereof (unless designed by Tenant, its architect or its engineer,
provided that if by Tenant's engineer, such design was prepared for Tenant and
not for Landlord) or the installation thereof, and the failure of any such
equipment or system to perform in accordance with its design specifications,
provided (i) such materials, fixtures, equipment or systems are being used and
maintained by Tenant substantially in accordance with the manufacturer's
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instructions furnished to Tenant, and (ii) such defect could not normally be
observed upon a reasonable inspection of the Premises or portion thereof in
question made within thirty (30) days after the later of (x) the date the item
or element in question was put into service for its intended use or (y) the date
Tenant (or any Person claiming by, through or under Tenant) commenced occupancy
of the Building or portion thereof in question for the conduct of its business,
but in no event later than the date which is the later of twelve (12) months
after (1) February 26, 1988 or the date Interim Rent (as defined in the LIA)
commenced under the LIA for the portion(s) of the Premises in question, if
earlier, and (2) the date the item or element in question becomes available for
use.
(c) Notwithstanding anything to the contrary in Section 1.1.(a), Landlord
shall continue to be obligated to make the reimbursements provided for (i) in
clauses (i), (iii) and (iv) of such Section during the first Extended Term or
the first and second Extended Terms if Tenant effectively exercises its option
under Section 2.02 of the Lease for such Extended Term or Terms at least
thirty-six (36) months prior to the expiration of the Original Term, and (ii) in
clauses (v) and (vi) of such Section during any Extended Term(s) of the Lease.
(d) Subject to the provisions of Sections l.1.(a)(iv), (a)(vi) and (a)
(vii) in the case of the reimbursements re-
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ferred to in such Sections, with respect to any reimbursement claimed by Tenant
pursuant to this Section 1.1., Tenant shall submit a reasonably detailed
statement therefor to Landlord, together with such supporting data as Landlord
shall reasonably require (including, without limitation, copies of any
statements furnished by the Operator under the Project Operating Agreement on
which Tenant's statements hereunder are based), and, subject to the limitation
of Section 1.8.(a), within ten (10) Business Days (fifteen (15) Business Days in
the case of reimbursements claimed pursuant to Section 1.1.(a)(vi)) after
receipt of such statement and data, Landlord shall pay to Tenant the amount set
forth in such statement. If Landlord disputes such amount or any portion
thereof, such dispute shall be resolved by arbitration as provided in Article 36
of the Lease. Landlord shall, nevertheless, pay the amount set forth in such
statement, without prejudice to Landlord's right to contest the same; and if it
shall be determined that Landlord made an overpayment, Tenant shall refund to
Landlord the amount of such overpayment within (10) Business Days after notice
of the arbitrators' decision, together with interest thereon at the Prime Rate
from the date of such overpayment to the date of such refund.
(e) If an arbitration proceeding pursuant to Section 1.1.(d) involves a
dispute pertaining to a reimbursement for
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amounts paid by Tenant pursuant to Section 12.03(b) of Lease D, the tenant under
O&Y Lease D shall have the right, at its sole cost and expense, to participate
in such arbitration.
1.2. Notwithstanding anything which may be to the contrary in the Lease,
if Tenant is required to pay to the First Secured Lender an amount pursuant to
Section 9.01(e) of the Lease, then Landlord shall reimburse Tenant for the
amount of such payment by Tenant. Landlord shall pay such reimbursement to
Tenant, subject to the limitation of Section 1.8.(a), within ten (10) Business
Days after Tenant's statement therefor to Landlord, together with interest
thereon at the Prime Rate from the date that such payment was made by Tenant.
1.3. Intentionally Omitted.
1.4. (a) Upon the expiration or earlier termination of the Lease (unless
such earlier termination is due to an Event of Default under the Lease),
Landlord shall reimburse Tenant for the then unamortized portion of the cost to
Tenant of any repairs and replacements made by Tenant at Building D which (i)
are to (A) any of the structural components of the Building or (b) any of the
central systems or components of the central systems of the Building which in
either case (1) Tenant is required to make under the terms of the Lease, (2) is
not a repair or replacement for which Tenant is entitled to reimbursement from
Landlord pursuant to Section 1.1., (3) is not a repair or replacement
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covered by insurance proceeds or condemnation awards payable to Tenant, (4) is
not a repair or replacement the need for which was caused by the negligence or
wilful misconduct of Tenant, its Affiliates or Subtenants, or their respective
agents, servants, employees, invitees or contractors (other than Landlord or its
Affiliates or their respective agents, servants, employees, invitees or
contractors) and (5) is a repair or replacement which Tenant is required to
capitalize, and may not treat as an operating expense, under generally accepted
accounting principles, (ii) are amortized over the useful life of the item(s) in
question and in a manner consistent with past practices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
Inc. ("Merrill"), provided that prior to making such repair or replacement,
Tenant shall have obtained Landlord's written consent (which consent Landlord
shall not unreasonably withhold or delay) to the specifications, budget,
contractor and contract for such repair or replacement, and (iii) are not
recovered by Tenant pursuant to Sections 9.01(c) and/or 9.09 of the Lease (if
the Lease terminates pursuant to Section 9.01(a) thereof). Subject to Section
1.4.(b), such reimbursement shall be in the amount specified in a notice from
Tenant to Landlord requesting the same, which notice shall be accompanied by (x)
a certificate from an independent registered architect or licensed professional
engineer as to the cost to Tenant of the repairs and replacements in question,
(y) a certificate from
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an authorized officer of Tenant as to the then unamortized portion of such cost
and (z) such other information and documentation as Landlord shall reasonably
require with respect to such repairs and replacements, including, without
limitation, Tenant's accounting records with respect thereto, which records
shall be kept in accordance with ▇▇▇▇▇▇▇'▇ past practices. Landlord shall pay
such reimbursement to Tenant, subject to the limitation of Section 1.8.(a),
within ten (10) Business Days after Tenant, pursuant to Article 33 of the Lease,
has completed vacating the Premises.
(b) If Landlord disputes the amount of the reimbursement or the compliance
of the repairs and replacements in question with any of the requirements set
forth above, such dispute shall be submitted to and resolved by arbitration in
accordance with Article 36 of the Lease. Landlord shall, nevertheless, pay the
reimbursement in accordance with Tenant's notice, without prejudice to
Landlord's right to contest the same; and if it shall be determined that Tenant
was not entitled to any reimbursement or that the reimbursement exceeded the
amount to which Tenant was entitled, Tenant shall refund to Landlord the amount
of the reimbursement, or such excess, as the case may be, within ten (10)
Business Days after notice of the arbitrators' decision, together with interest
thereon at the Prime Rate from the date such reimbursement was paid (or
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dates, if the reimbursement was paid in installments) to the date of such
refund.
1.5. Except as provided in Section 1.8. of this Agreement, any payment
(other than a payment for interest) due from one party to the other under the
provisions of this Article 1 which the party obligated to make such payment
fails to pay within the period of ten (10) Business Days provided for the making
of such payment shall bear interest at an annual rate equal to the Prime Rate
plus two and one-half percent (2.5%) from the day next following the expiration
of such period of ten (10) Business Days to the date of payment.
1.6. (a) Upon at least three (3) Business Days' notice from Landlord,
Tenant shall make available to Landlord for inspection, and shall permit
Landlord (at Landlord's sole cost and expense) to audit, during business hours
on Business Days, the books and records of Tenant pertaining to or relevant to
any reimbursements requested by Tenant pursuant to this Article 1.
(b) In connection with any reimbursement for amounts paid by Tenant
pursuant to Section 12.03(b) of Lease D, Tenant shall permit the tenant under
O&Y Lease D to (i) participate with Landlord, at such tenant's sole cost and
expense, in any inspection or audit performed by Landlord pursuant to Section
1.6.(a) of this Agreement, and (ii) on at least two (2) Business Days' notice,
to inspect, during
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business hours on Business Days, any submeters located in the Premises which
pertain to utilities furnished to the premises demised to the tenant under O&Y
Lease D.
1.7. If Landlord, pursuant to the separate agreement referred to in
Section 2.02(g) of the Lease (relating to the period after the Original Term),
shall pay an amount for which Landlord must reimburse Tenant in whole or in part
hereunder, then Landlord shall be relieved of such reimbursement obligation to
the extent of the amount so paid to Tenant. In the event that Tenant shall
receive a payment for all or a portion of the same item from Landlord both
hereunder and under the Lease or hereunder and from the tenant under O&Y Lease D
(or on its behalf), Tenant shall refund the extra payment to Landlord with
interest at the Prime Rate from the date such extra payment was made until the
date refunded.
1.8. (a) Until repayment in full of the loan in the aggregate principal
amount of $434,346,000 being made on the date hereof by Boatmen's National
Mortgage, Inc. to Landlord (as the same may be modified, amended or refinanced
to the extent provided in clause (a)(v) below or in Section 1.8.(b), the
"Loan"), Landlord and Tenant agree (i) with respect to any payment due Tenant
from Landlord hereunder and not paid by Landlord within the period of ten (10)
Business Days provided for the making of such payment, such payment shall accrue
and shall bear interest at an annual
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rate equal to the Prime Rate plus three percent (3%), compounded monthly, from
the day next following the expiration of such period of ten (10) Business Days
to the date of payment and shall be enforceable against Landlord only in
accordance with this Section 1.8.(a) and Section 1.8.(b) hereof, (ii) Tenant
shall forbear its rights to pursue collection of such amounts due and interest
accruing thereon and shall not exercise any remedies with respect thereto or of,
under, or with respect to this Agreement against the Landlord or the Secured
Lender, even if an Event of Default has occurred under the Loan, but Tenant's
agreement to forbear shall terminate in the event of the bankruptcy of Landlord,
(iii) in connection with the exercise of any enforcement rights by Tenant
hereunder, Tenant agrees to waive any equitable right to the marshaling of the
assets of Landlord by the Secured Lender and hereby grants to Secured Lender for
its benefit an irrevocable (until the repayment in full of the Loan) power of
attorney (coupled with an interest) to vote with respect to any claims Tenant
may have hereunder in connection with a bankruptcy of Landlord (provided that
Secured Lender in exercising such power of attorney shall take reasonable steps
necessary as not to impair Tenant's claims against Landlord except to the extent
necessary to subordinate Tenant's claim to repayment in full of the Loan), (iv)
Tenant shall remit to Secured Lender any amounts collected
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from Landlord in contravention of the terms and conditions hereof and shall have
not right to subrogation against Secured Lender with respect to any amounts so
remitted, and (v) Tenant's right to repayment hereunder shall be subordinate to
the Loan, whether or not an event of bankruptcy with respect to Landlord shall
have occurred, and to any modification or amendment of the Loan (including a
refinancing thereof) which does not (A) increase the principal amount of the
indebtedness thereunder or (B) change the requirement that the Loan shall be
fully amortized over the Original Term of Lease D, except that after default
thereunder, modifications or amendments (including a refinancing thereof) may
provide for the extension of the maturity date, capitalization of accrued (but
unpaid) interest (and default interest), the payment of protective advances (and
interest thereon) and resetting of the interest rate and an increase in the
principal amount to pay for the transaction costs incurred in connection with
such extension, modification or amendment. Landlord agrees that Tenant's
forbearance and subordination under this Section 1.8. shall not in any way
prejudice or impair the validity or enforceability of Tenant's claims hereunder
except to the extent provided herein and shall in no way restrict Tenant from
exercising rights against any party other than Landlord or the Secured Lender.
The rights of Tenant hereunder are subordinate in lien, right and payment
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and in all other respects to the Loan, and the Tenant hereby agrees to reaffirm
from time to time such subordination of its right as required by the holder of
the Loan to confirm the foregoing. Notwithstanding anything to the contrary
contained above, Tenant may, provided an Event of Default under the Loan shall
not have occurred and be continuing, receive payment from the Landlord of
amounts due hereunder, prior to payment in full of the Loan, to the extent such
payment is made by Landlord from excess cashflow available to Landlord (i.e.,
after payment from rent received of all amounts then due under the Loan) or from
other sources.
(b) With respect to any refinancing of the Loan, if such refinancing
provides for funds available to Landlord, after any repayment of the Loan (as
the same may have previously been modified or amended) and all financing
expenses (including, without limitation, fees and expenses of counsel to
Landlord, the prior lender and the new lender in connection therewith) which are
not to be used or reserved for building expenditures at Building D, including,
without limitation, capitalized interest and costs of leasing, owning,
operating, maintaining and improving Building D and Project Operating Agreement
Common Areas or Civic Facilities, then Landlord shall to the extent of such
excess funds (i.e., above amount required for financing expenses and building
expenditures) first pay all accrued and unpaid amounts due hereunder (subject to
Landlord's
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right to dispute such amounts due in accordance with Section 1.4.(b)). For
purposes of this Section 1.8.(b), any new loan to Landlord made during the
Original Term shall be considered a refinancing of the Loan.
1.9. Tenant shall in no event offset or deduct the amount of any payment
due under this Agreement from Landlord to Tenant, and/or the interest thereon,
against any Rental or other sums due or payable under the Lease. Tenant shall
have recourse solely to the property of Landlord, and the direct or indirect
partners, agents, employees, controlling persons, shareholders, trustees,
directors, officers or other principals, if any, of Landlord shall have no
personal liability under or in connection with this Agreement.
ARTICLE 2
[INTENTIONALLY OMITTED]
ARTICLE 3
ASSIGNMENT
3.1. This Agreement, and Tenant's rights hereunder, shall not be assigned
by Tenant except to a Person to whom Tenant has the right, without the consent
of Landlord, to assign the Lease pursuant to Article 10 thereof and to whom
Tenant has assigned the Lease. Any other purported assignment by Tenant shall be
null and void and of no force or effect.
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3.2. If Tenant shall duly assign its rights hereunder, the assignee shall
execute and deliver to Landlord an agreement in form and substance reasonably
satisfactory to Landlord whereby the assignee shall assume the obligations
hereunder on the part of Tenant to be performed or observed but Tenant shall
remain fully liable for the payment and performance of the obligations hereunder
to be paid, performed or observed by Tenant.
3.3. Notwithstanding anything which may be to the contrary hereinabove, if
Tenant assigns its interest under the Lease to a Person to whom Tenant is not
permitted to assign this Agreement, and Tenant is not released from its
obligations under the Lease by reason of or in connection with such assignment,
this Agreement shall remain in full force and effect as between Landlord and
Tenant herein named (but not between Landlord and Tenant's assignee), and Tenant
herein named shall be entitled to a reimbursement hereunder if, after Tenant's
assignee fails to do so, Tenant herein named performs an obligation under the
Lease which gives rise to a reimbursement or loan under this Agreement.
ARTICLE 4
NOTICES
Whenever it is provided in this Agreement that a notice, demand, request,
consent, approval or other communication (each of which is herein referred to as
a "Notice") shall or may be given to or served upon either of
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the parties by the other, and whenever either of the parties shall desire to
give or serve upon the other any Notice with respect hereto or the Premises,
each such Notice shall be in writing and, any law or statute to the contrary
notwithstanding, shall be effective for any purpose if given or served as
follows:
(a) if by Landlord, by mailing the same to Tenant by certified or
registered mail, postage prepaid, return receipt requested, by delivery by
reputable overnight courier or by personal delivery, receipted on behalf of the
party to whom addressed, addressed to Tenant at:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
World Financial Center-Tower B
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director, Headquarters New York
Real Estate
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
World Financial Center-Tower D
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Safer
Corporate Law Department
with copies thereof to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Black III, Esq.
or to such other address(es) and attorneys as Tenant may from time to time
designate by Notice given to Landlord by certified or registered mail, reputable
overnight courier or
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personal delivery as aforesaid, except that at no time shall Landlord be
required to give, in the aggregate, more than four Notices or copies thereof;
(b) if by Tenant, by mailing the same to Landlord by certified or
registered mail, postage prepaid, return receipt requested, by reputable
overnight courier or by personal delivery, receipted on behalf of the party to
whom addressed, addressed to Landlord at:
WFP Tower D Co. L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with copies thereof to:
(1) WFP Tower D Co. L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Managing Attorney
(2) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
or to such other address(es) and attorneys as Landlord may from time to time
designate by Notice given to Tenant by certified or registered mail, reputable
overnight courier or personal delivery as aforesaid, except that at no time
shall Tenant be required to give, in the aggregate, more than four Notices or
copies thereof; and
(c) as long as the Loan remains outstanding, Tenant shall send to Secured
Lender a Notice with respect to any Landlord default which Tenant has given to
or served upon Landlord.
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ARTICLE 5
NO BROKER
Landlord and Tenant each covenants, warrants and represents to the other
that no broker was instrumental in bringing about or consummating this Agreement
and that it had no dealings with any broker or other Person concerning the
transactions referred to herein, other than ▇▇▇▇▇▇▇ Realty Corporation, Tenant's
consultant, who is entitled to any brokerage commission or finder's fee by
reason thereof. Tenant shall indemnify and hold Landlord harmless against and
from, and Landlord shall indemnify and hold Tenant harmless against and from,
any claims for any such brokerage commissions or fees, and all costs, expenses
and liabilities in connection therewith, including, without limitation,
attorneys' fees and expenses, arising out of any dealings had by the
indemnifying party with any broker, consultant or other person alleging to have
acted or dealt with the indemnifying party in connection with this transaction
(including, without limitation, ▇▇▇▇▇▇▇ Realty Corporation in the case of the
indemnification by Tenant). Tenant shall pay any and all fees, commissions and
other charges of ▇▇▇▇▇▇▇ Realty Corporation.
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ARTICLE 6
AMENDMENT
This Agreement may not be changed, modified, or terminated orally, nor may
any provision hereof be waived orally, but only by a written instrument of
change, modification, termination or waiver executed by the party against whom
enforcement of any change, modification, or termination is sought. Until such
time as the Loan is paid in full, Landlord and Tenant will not amend or modify
this Agreement except (a) to add additional reimbursement obligations with
respect to obligations which Tenant undertakes under Lease D, or (b) provided
(i) such amendment or modification does not adversely affect the subordination
effected by the Subordination and Forbearance Agreement (Amended and Restated
Reimbursement Agreement Tower D), made as of the date hereof by Tenant in favor
of Boatmen's National Mortgage Inc. (the "Forbearance Agreement"), (ii) such
amendment or modification does not otherwise constitute a breach of the
Forbearance Agreement, and (iii) Landlord (or any successor or assign) as
obligor under the Loan, receives written confirmation from the Rating Agencies
(as defined in the Forbearance Agreement) that such amendment or modification
will not result in the rating of the Securities (as defined in the Forbearance
Agreement) being withdrawn, downgraded or qualified.
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ARTICLE 7
TERMINATION
7.1. Subject to the provisions of Section 7.3. hereof, this Agreement, and
all of the obligations hereunder of the parties hereto shall terminate upon the
termination, for any reason whatsoever, of Lease D.
7.2. Notwithstanding anything to the contrary hereinabove, Tenant shall
not be entitled to receive, and Landlord shall have no obligation to make, any
reimbursement pursuant to Article 1 hereof, at any time and for so long as an
Event of Default under and as defined in the Lease has occurred and is
continuing.
7.3. If this Agreement shall terminate as provided in Section 7.1. hereof,
Tenant's subordination and standstill obligations under Section 1.8.(a) shall
survive and the then accrued and unpaid obligations of each party to the other
shall, nevertheless, survive such termination. Further, if Lease D shall
terminate (a) pursuant to Section 9.01 of such Lease, Landlord's obligations
under Section 1.2. hereof shall survive such termination, or (b) for any reason
other than an Event of Default under the Lease, Landlord's obligations under
Section 1.4. hereof shall survive such termination.
-23-
ARTICLE 8
INTEGRATION; CONFLICT WITH OTHER AGREEMENTS
8.1. All understandings and agreements heretofore had between the parties
hereto with respect to the matters covered by this Agreement are merged in this
Agreement, which fully and completely expresses their agreement with respect to
such matters, except to the extent such matters are covered by other written
agreement between the parties dated on or prior to the date of this Agreement
(in the case of prior agreements, only to the extent the parties have agreed
such prior agreements survive pursuant to a separate agreement dated the date
hereof).
8.2. This Agreement is intended to be read together with the Lease in
determining the full rights and obligations of Landlord and Tenant under the
Lease, notwithstanding anything contained to the contrary in Article 34 of the
Lease. If there shall be any conflict between any provision of this Agreement
and the Lease or any other written agreement between the parties, this Agreement
shall prevail. However, nothing contained in this Agreement, whether express or
implied, shall give to Tenant any right of abatement, reduction, setoff,
counterclaim, defense or deduction with respect to any Rental or other sums due
or payable under the Lease, and no default or other non-performance under this
Agreement by Landlord shall
-24-
affect the validity of the Lease or Tenant's obligations under the Lease.
8.3. In no event shall this Agreement be binding upon the Ground Lessor or
any Secured Lender or any Person who succeeds to the rights of the Landlord by
foreclosure or assignment or deed/assignment in lieu of foreclosure or otherwise
(except for a voluntary transfer made without Tenant's consent) nor shall the
Ground Lessor, the Secured Lender or any such Person have any liability under
this Agreement.
ARTICLE 9
MISCELLANEOUS
9.1. The captions and table of contents of this Agreement are for
convenience of reference only and in no way define, limit or describe the scope
or intent of this Agreement.
9.2. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without the aid of any canon or rule of law
requiring construction against the party drawing or causing this Agreement to be
drawn.
9.3. (a) Except as otherwise expressly provided in this Agreement, the
provisions of this Agreement 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 (i)
-25-
no violation of the provisions of Article 3 shall operate to vest any rights in
any successor or assignee of Tenant and (ii) the provisions of this Section 9.3.
shall not be construed to be a consent by a party to an assignment of this
Agreement by another party.
(b) The provisions of this Agreement are intended to be for the sole
benefit of the parties hereto and Merrill, and their respective successors and
assigns, and none of the provisions of this Agreement are intended to be, nor
shall they be construed to be, for the benefit of any third party, except that
the provisions of Sections 1.8. and 8.3. shall benefit any Secured Lender or any
Person who succeeds to the rights of the Landlord by foreclosure or assignment
or deed/assignment in lieu of foreclosure or otherwise (except for a voluntary
transfer made without Tenant's consent).
9.4. The parties shall and do hereby each waive trial by jury in any
action, suit or proceeding arising out of or in connection with this Agreement,
or the interpretation, construction or enforcement thereof.
9.5. (a) The parties each agrees to do such other and further acts and
things, and to execute and deliver such instruments and documents, as a party
may reasonably request from time to time, in furtherance of the purposes hereof.
(b) Without limitation of the provisions of Section 9.5.(a), the parties
hereto shall deliver to the other such evidence as may be reasonably required by
the other of the
-26-
due authorization, execution and delivery of this Agreement, including, without
limitation, legal opinions of the respective independent counsel for each party
as to such due authorization, execution and delivery.
9.6. The terms "hereof," "herein" and "hereunder," and words of similar
import, shall be construed to refer to this Agreement as a whole (including,
without limitation, the annexed Exhibits), and not to any particular Article,
Section, Exhibit or provision, unless expressly so stated.
9.7. All words or terms used in this Agreement, regardless of the number
or gender in which they are used, shall be deemed to include any other number
and any other gender, as the context may require.
9.8. Landlord and Tenant each agrees at any time and from time to time,
upon not less than ten (10) days' prior request by the other party, to execute,
acknowledge and deliver to the other party a certificate in writing stating (a)
that this Agreement is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications) and (b) whether or not to the best knowledge of the
Landlord or Tenant, as the case may be, (i) there is any unpaid sum owed either
party to the other pursuant to this Agreement, (ii) there is any existing
default under this Agreement on the part of either party hereto and, if
-27-
so, specifying each such default, and (iii) such other matters as the requesting
party may reasonably request.
9.9. Tenant acknowledges that WFP Tower D Co. L.P. is a legal entity
separate and distinct from any other Person (including, without limitation, the
general partners of WFP Tower D Co. L.P., the tenant under O&Y Lease D, World
Financial Properties, L.P. and any Affiliates of the foregoing). Tenant shall
not seek to substantively consolidate WFP Tower D Co. L.P. with any other Person
or such Person's assets or liabilities in any action or proceeding, and Tenant
shall refrain from filing or otherwise initiating or supporting the filing of
any motion in any bankruptcy or insolvency proceeding to substantively
consolidate Landlord with any other Person or such Person's assets or
liabilities.
9.10. In determining the fair market rental value of all or any portion of
the Premises or the fair market value of the interest of Landlord in Ground
Lease D and Parcel D, to the extent either such calculation is to be made under
Lease D, then the rights of Tenant and the obligations of Landlord hereunder
shall be taken into account in making such determination.
-28-
ARTICLE 10
DEFINITIONS
10.1. "Agreement": Defined in the heading hereof.
10.2. "Building," "Building D": Defined in Recital A.
10.3. "Forbearance Agreement": Defined in Article 6.
10.4. "Ground Lease D": Defined in Recital A.
10.5. "Interim Rent": Defined in Section 1.1.(b).
10.6. "Landlord": Defined in the heading of this Agreement.
10.7. "Lease," "Lease D": Defined in Recital B.
10.8. "LIA": Defined in Section 1.1.(a)(ii).
10.9. "Loan": Defined in Section 1.8.(a).
10.10. "Merrill": Defined in Section 1.4.(a).
10.11. "ML/WFC": Defined in Recital B.
10.12. "Original Reimbursement Agreement": Defined in Recital D.
10.13. "Parcel," "Parcel D": Defined in Recital A.
10.14. "Premises," "Premises D": Defined in Recital B.
10.15. "Project": Defined in Recital A.
10.16. "Tenant": Defined in the heading of this Agreement.
10.17. "WFC": Defined in Recital A.
10.18. "Work": Defined in Section 1.1.(b).
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of this day and year first written above.
WFP TOWER D CO. L.P.
By: WFP Tower D Co. G.P. Corp.,
general partner
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By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss.:
COUNTY OF NEW YORK )
On this ____ day of __________, 1996, before me personally came
_____________________ to me known, who, being by me duly sworn, did depose and
say that he has an address at _________________________________________, that he
is the ______________ of ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, the
corporation described in and which executed the foregoing instrument and that he
signed his name thereto by order of the board of directors of said corporation.
__________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ____ day of November, 1996, before me personally came
_________________________ to me known, who, being by me duly sworn, did depose
and say that he has an address at ___________________________________________,
that he is the __________________ of WFP Tower D Co. G.P. Corp., the corporation
described in the foregoing instrument and which executed same as partner of WFP
TOWER D CO. L.P., a New York limited partnership; and that he signed his name
thereto by the order of the board of directors of said corporation.
__________________________
Notary Public
-31-
EXHIBIT A TO REIMBURSEMENT AGREEMENT
DESCRIPTION OF GROUND LEASE D
Agreement of Severance Lease for the premises known as Parcel D, Battery
Park City --Commercial Center, New York, New York, dated as of June 15, 1983,
made by the Battery Park City Authority, as landlord ("Landlord"), to and with
Olympia & York Battery Park Company, as tenant ("Tenant"), a memorandum of which
was recorded in the Office of the Register of the City of New York, New York
County (the "Register's Office"), on June 20, 1983 in Reel 696, at Page 507.
The interest of the tenant under said Severance Lease was assigned by that
certain Assignment and Assumption of Severance Lease dated as of October 7,
1983, made by Olympia & York Battery Park Company, as assignor, to and with
Olympia & York Tower D Company, as assignee, and recorded in the office of the
Register of the City of New York, New York County, on October 7, 1983 in Reel
724, at Page 1245, as amended by (i) an Unrecorded Agreement, made as of August
24, 1984, among Landlord, Tenant, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc. which Agreement
is referred to in the recorded memorandum described in clause (ii) below, (ii)
an Amendment of Severance Lease, made as of December 5, 1984, between Landlord
and Tenant, a memorandum of which was recorded in the Register's Office on April
1, 1985, in Reel 892, at Page 1222, (iii) an Unrecorded Agreement made as of
July 12, 1985, among Landlord, Tenant and Bankers Trust Company as Collateral
Agent, which Agreement is referred to in the recorded memorandum described in
clause (iv) below, (which agreement has been terminated according to the
recorded memorandum described in paragraph (vi) below, (iv) an Amendment of
Severance Lease, between Landlord and Tenant, made as of August 15, 1985, a
memorandum of which was recorded in the Register's Office on May 19, 1986, in
Reel 1065, Page 1567, (v) an Unrecorded Agreement made as of December 24, 1986,
among Landlord, Tenant, The Sumitomo Bank Limited New York Branch and Bankers
Trust Company as Collateral Agent, which Agreement is referred to in the
recorded memorandum described in clause (vi) below (which agreement has been
terminated according to the recorded memorandum described in clause (vi) below),
(vi) an Amendment of Severance Lease, made as of February 26, 1988, between
Landlord and Tenant, a memorandum of which was recorded in the Register's Office
on March 9, 1988, in Reel 1375, page 1520, and (vii) an Unrecorded Agreement,
made as of February 26, 1988, among Landlord, Tenant and The Sumitomo Bank
Limited New York Branch (which agreement is referred to in the recorded
memorandum described in clause (vi) above).
The interest of the tenant under said Severance Lease was assigned by that
certain Assignment and Assumption of Severance Lease, dated as of November 21,
1996, made by Olympia & York Tower D Company, as assignor, to and with, WFP
Tower D Co. L.P., which is intended to be recorded.
A-1
EXHIBIT B TO REIMBURSEMENT AGREEMENT
LIST OF UNINSURABLE CASUALTIES
1. Nuclear reaction or nuclear radiation, all whether controlled or
uncontrolled, and whether such loss be direct or indirect, proximate or
remote, or be in whole or in part caused by, contributed to, or aggravated
by the peril(s) insured against in the insurance policy obtained by Tenant
pursuant to Article 7 of the Lease.
2. Except as otherwise provided in Section 7.01.(a)(i) of the Lease, hostile
or warlike action in time of peace or war, including action in hindering,
combating, or defending against an actual, impending, or expected attack
(a) by any government or sovereign power, (de jure or de facto) or by
any authority maintaining or using military, naval or air forces;
(b) or by military, naval, or air forces;
(c) or by an agent of any such government, power authority, or forces,
3. Any weapon employing atomic fission.
4. Except as otherwise provided in Section 7.01 (a)(i) of the Lease,
rebellion, revolution, civil war, usurped power, or action taken by
governmental authority in hindering, combating, or defending against such
occurrence.
5. Seizure or destruction by order of public authority.
6. Inherent vice, termites and other insects, wet or dry rot, vermin and
contamination.
B-1
