Exhibit 10(xxxiii)(b)
AMENDED AND RESTATED
REIMBURSEMENT AGREEMENT
between
WFP TOWER B CO. L.P.
and
XXXXXXX XXXXX/WFC/L, INC.
Premises
Parcel B
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].......................................21
Article 3 - Assignment....................................................21
Article 4 - Notices.......................................................22
Article 5 - No Broker.....................................................26
Article 6 - Amendment.....................................................26
Article 7 - Termination...................................................28
Article 8 - Integration; Conflict with Other Agreements...................29
Article 9 - Miscellaneous.................................................30
Article 10 - Definitions...................................................33
Exhibit A - Description of Ground Lease B
Exhibit B - List of Uninsurable Casualties
Exhibit C - Form of Assignment and Assumption Agreement
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AMENDED AND RESTATED REIMBURSEMENT AGREEMENT, made as of November 21, 1996
and effective as of September 29, 1988, between WFP TOWER B CO. L.P.
("Landlord"), a New York limited partnership having an office at Xxx Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and XXXXXXX XXXXX/WFC/L, INC. ("Tenant"), a New
York corporation having an office at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(this "Agreement").
RECITALS
A. Landlord, the successor-in-interest to Olympia & York Tower B Company
("O&Y"), is the owner of the interest and estate of the tenant under that
certain lease ("Ground Lease B") described in Exhibit A annexed hereto and made
a part hereof, covering the land known as Parcel B ("Parcel B" or the "Parcel")
more particularly described in Ground Lease B, and the buildings and other
improvements now or hereafter erected thereon (such buildings and improvements
collectively, "Building B" or the "Building"). Parcel B 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. O&Y and Tenant entered into that certain Agreement of Lease dated as of
September 29, 1988, as amended by the First Amendment of Lease dated as of
December 14, 1988 and the Second Amendment of Lease dated as of the date hereof
(collectively, "Lease B" or the "Lease") whereby, among other things, O&Y
demised and leased to Tenant Parcel B and
Building B (except for certain excluded portions of such Building)
(collectively, the "Premises" or "Premises B"), and Tenant hired Premises B from
O&Y, all upon and subject to the terms, covenants and conditions set forth in
the Lease. O&Y'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 O&Y and Tenant, dated as of August 24, 1984, as amended by the First
Amendment to Building B Agreement to Lease and Reimbursement Agreement and
Second Amendment to Leasehold Improvements Agreement, dated as of July 12, 1985,
as further amended by the Third
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Amendment to Building B Agreement to Lease, Fourth Amendment to Leasehold
Improvements Agreement and Second Amendment to Reimbursement Agreement, dated
September 23, 1987, as amended and restated by an Amended and Restated Third
Amendment to Building B Agreement to Lease, Fourth Amendment to Leasehold
Improvements Agreement and Second Amendment to Reimbursement Agreement, dated as
of September 29, 1988, and by the Amended and Restated Second Amendment to
Reimbursement Agreement, dated as of September 29, 1988 (collectively, the
"Original Reimbursement Agreement"), which has been assigned by O&Y 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 I
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
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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 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 O&Y and
Tenant, 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)(ii), 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); provided,
however, that if Landlord is required to reimburse Tenant pursuant to this
clause (ii) with respect to latent defects of which Landlord is not given notice
before the end of the period (the "Warranty Period") that begins on the later to
occur of the date that Tenant (or any person claiming by, through or under
Tenant) commences occupancy of the Building or portion thereof in
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question for the conduct of its business or the date the defective item or
element is put into service in the Building for its intended use, but in no
event shall the Warranty Period begin more than twelve (12) months after the
later to occur of September 29, 1988 (or the date the Interim Rent commenced for
the portion(s) of the Building in question, if earlier) or the date the item or
element in question is available for use in such portion(s) of the Building, and
ends (i) two (2) years thereafter in the case of non-structural elements of the
Building (the parties acknowledging that this period has expired) and (ii) ten
(10) years thereafter in the case of structural elements or the roof of the
Building, then Landlord shall only be obligated hereunder with respect to
fifty-one percent (51%) of the amount that would otherwise be reimbursed to
Tenant;
(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 to pay Fixed Rents in a sufficient amount to cover
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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 B;
(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 B 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 B 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 B 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 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 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
instruc-
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tions 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)
September 29, 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 exercised 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 1.1.(a)(iv), (a)(vi) and
(a)(vii) in the case of the reimbursements
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referred 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 ten (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 B, the tenant under
O&Y Lease B 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 B 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 items(s)
in question and in a manner consistent with past practices of Xxxxxxx Xxxxx &
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 Xxxxxxx'x 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.
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(b) In connection with any reimbursement for amounts paid by Tenant
pursuant to Section 12.03(b) of Lease B, Tenant shall permit the tenant under
O&Y Lease B 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 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 B.
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 B
(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 $873,436,000 being made on the date hereof by Boatmen's National
Mortgage, Inc. to Landlord
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(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 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
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hereunder in connection with a bankruptcy of Landlord (provided that Secured
Lender in exercising such power of attorney shall take reasonable steps
necessary so 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 from
Landlord in contravention of the terms and conditions hereof and shall have no
right of subrogation against Secured Lender with respect to any amounts so
remitted, and (v) Tenant's right to payment 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 B, 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 Sec-
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tion 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 and in all other respects to the Loan,
and Tenant hereby agrees to reaffirm from time to time such subordination of its
rights (including, without limitation, on the date of the securitization of the
Loan) 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 the Zero Coupon Note,
as defined in the mortgage securing the Loan, and all financing expenses
(including, without limitation, fees and expenses of counsel to Landlord, the
prior lender and the
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new lender in connection therewith), which are not to be used or reserved for
building expenditures at Building B, including, without limitation, costs of
leasing, owning, operating, maintaining and improving, Building B 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 and provide such reserves or other security or credit support
reasonably satisfactory to Tenant so that all amounts which Tenant believes are
reasonably likely to be payable hereunder during the Original Term based on all
of the applicable facts and circumstances, including the fact that other parties
may be liable for such obligations (i.e., the Retail Tenant with respect to the
obligations of Landlord under Section 1.1.(a)(vi) hereof), will be paid when
due. Within ten (10) days after Landlord shall request the same, Tenant shall
deliver to Landlord and any proposed new lender specified by Landlord, a written
instrument executed by Tenant regarding characterization of any use of funds
from a refinancing referenced by Landlord in its request, whether reserves (or
other security) are required, and, if so, in what amount. Such instrument shall
be binding on Tenant. Other than making the payments of accrued amounts
referenced above and providing the reserves (or other security) referenced
above, there shall be no
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other restrictions on distributions by Landlord or on the use of refinancing
proceeds. Any dispute as to the amounts, if any, to be paid under this Section
1.8.(b) or whether reserves (or other security) are required or the amount or
nature thereof, shall be submitted to and resolved by arbitration in accordance
with Article 36 of the Lease. If Landlord, pending such arbitration, elects to
close on a proposed refinancing and pay Tenant such amounts and provide Tenant
with such reserves or other security as Tenant requires (although any of the
same is the subject of such arbitration) and Landlord is successful in such
arbitration, Tenant shall refund to Landlord any amounts determined in such
arbitration not to be due to Tenant by Landlord hereunder together with interest
thereon at the Prime Rate from the date paid by Landlord, Tenant shall return to
Landlord any reserves or other security not required hereunder as determined in
such arbitration and Tenant shall allow Landlord to substitute alternate
security, as may be determined in such arbitration to be permitted hereunder.
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.
(c) Landlord agrees that Landlord shall not sell or otherwise voluntarily
transfer without Tenant's consent Landlord's interest in Lease B to any Person
unless such transferee shall execute and deliver to Tenant an agreement
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substantially in the form annexed hereto as Exhibit C whereby the transferee
shall assume the obligations hereunder on the part of Landlord to be performed
or observed, including all accrued payment obligations, and, if such agreement
is not so delivered, any such purported sale or transfer shall be null and void
and of no force or effect; provided, however, that no such consent shall be
necessary with respect to an assignment to a transferee (a "Foreclosure
Transferee") in lieu of foreclosure or to a purchaser at a foreclosure sale. At
Landlord's request, Tenant shall deliver an acknowledgement at the closing that
it received such agreement, but Tenant's failure to deliver such acknowledgement
shall not affect the sale or the validity of the release as provided above. Upon
Landlord's delivery of such agreement, Landlord shall be released from all
liability arising under or in connection with this Agreement. In the event of a
voluntary transfer of the Property made without Tenant's consent, Landlord
agrees that any proceeds thereof, after any repayment of amounts owed to Secured
Lenders (including holders of the Loan and the Zero Coupon Note) and payment of
all expenses of sale or transfer, shall first be used to pay all accrued and
unpaid amounts due hereunder. This Section 1.8.(c) shall not apply to any
transfer of the type described in Section 8.3. Notwithstanding anything herein
contained to the contrary, a Foreclosure Transferee shall take Landlord's
interest in
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Lease B free and clear of Landlord's obligations hereunder and any lien or
security interest which may arise in connection therewith.
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
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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 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:
Xxxxxxx Xxxxx & Co., Inc.
World Financial Center-Tower B
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Director, Headquarters New York
Real Estate
and
Xxxxxxx Xxxxx & Co., Inc.
World Financial Center-Tower D
000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Safer
Corporate Law Department
with copies thereof to:
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Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. 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 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 B Co. L.P.
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
with copies thereof to:
(1) WFP Tower B Co. L.P.
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Managing Attorney
(2) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx, 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
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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 Xxxxxxx 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,
attorney's fees and expenses, arising out of any dealing 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, Xxxxxxx Realty Corporation in the case of the
indemnification by Tenant). Tenant shall pay any and all fees, commissions and
other charges of Xxxxxxx Realty Corporation.
ARTICLE 6
AMENDMENT
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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 B, 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 B), 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 B.
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 B 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.
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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 any other written
agreement between the parties dated on or prior to the date of execution 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 affect
-29-
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
-30-
(i) 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 agree 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
-31-
other of the 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 by
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
-32-
so, specifying each such default, and (iii) such other matters as the requesting
party may reasonably request.
9.9. Tenant acknowledges that WFP Tower B Co. L.P. is a legal entity
separate and distinct from any other Person (including, without limitation, the
general partner of WFP Tower B Co. L.P., the tenant under O&Y Lease B, World
Financial Properties, L.P. and any Affiliates of the foregoing). Tenant shall
not seek to substantively consolidate WFP Tower B 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 the Ground
Lease B and Parcel B, to the extent either such calculation is to be made under
Lease B, then the rights of Tenant and the obligations of Landlord hereunder
shall be taken into account in making such determination.
ARTICLE 10
DEFINITIONS
10.1. "Agreement": Defined in the heading hereof.
10.2. "Building," "Building B": Defined in Recital A.
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10.3. "Forbearance Agreement": Defined in Article 6.
10.4. "Foreclosure Transferee": Defined in Section 1.8.(c).
10.5. "Ground Lease B": Defined in Recital A.
10.6. "Interim Rent": Defined in Section 1.1.(b).
10.7. "Landlord": Defined in the heading of this Agreement.
10.8. "Lease," "Lease B": Defined in Recital B.
10.9. "LIA": Defined in Section 1.1.(a)(ii).
10.10. "Loan": Defined in Section 1.8.(a).
10.11. "Merrill": Defined in Section 1.4.(a).
10.12. "Original Reimbursement Agreement": Defined in Recital D.
10.13. "O&Y": Defined in Recital A.
10.14. "Parcel," "Parcel B": Defined in Recital A.
10.15. "Premises," "Premises B": Defined in Recital B.
10.16. "Project": Defined in Recital A.
10.17. "Tenant": Defined in the heading of this Agreement.
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 B CO. L.P.
By: WFP Tower B Co. G.P. Corp.,
general partner
By:_________________________________
Name:_________________________________
Title:_________________________________
XXXXXXX XXXXX/WFC/L, INC.
-34-
By:_________________________________
Name:_________________________________
Title:_________________________________
-00-
XXXXX XX XXX XXXX )
: ss:
COUNTY OF NEW YORK )
On this ___th 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 XXXXXXX XXXXX/WFC/L, INC., 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 ___th 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 B Co. G.P. Corp., the corporation described in the foregoing instrument
and which executed same as general partner of WFP TOWER B CO. L.P., a New York
limited partnership; and that he signed his name thereto by order of the board
of directors of said corporation.
_______________________________
Notary Public
-36-
EXHIBIT A TO REIMBURSEMENT AGREEMENT
DESCRIPTION OF GROUND LEASE B
Agreement of Severance Lease for the premises known as Parcel B, Battery
Park City -- Commercial Center, New York, New York, dated as of June 15, 1983,
made by the Battery Park City Authority, as Landlord, to and with Olympia & York
Battery Park Company, as Tenant, a memorandum of which was recorded in the
Office of the Register of the City of New York, New York County ("Register's
Office"), on June 20, 1983 in Reel 696, at Page 495, as assigned and assumed
pursuant to 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 B Company, as assignee, and recorded on October 7,
1983 in Reel 724, at Page 1258, as amended by (i) an Unrecorded Agreement, dated
as of August 24, 1984, among Xxxxxxx Xxxx Xxxx Xxxxxxxxx, Xxxxxxx & Xxxx Xxxxx X
Company and Xxxxxxx Xxxxx & Co., Inc. as referred to in the recorded memorandum
described in clause (ii) below, (ii) an Amendment of Severance Lease, dated as
of December 5, 1984, between Battery Park City Authority and Olympia & York
Tower B Company, a memorandum of which was recorded in the Register's Office on
April 1, 1985, in Reel 892, at Page 1204, (iii) an Unrecorded Agreement, dated
July 12, 1985, among Battery Park City Authority, Olympia & York Tower B Company
and Bankers Trust Company, as Collateral Agent as referred to in the recorded
memorandum described in clause (iv) below, (iv) an Amendment of Severance Lease,
dated as of August 15, 1985, between Battery Park City Authority and Olympia &
York Tower B Company, a memorandum of which was recorded in the Register's
Office on May 19, 1986, in Reel 1065, at Page 1548, (v) an Unrecorded Agreement,
dated as of January 30, 1987, by and among Battery Park City Authority, Olympia
& York Tower B Company and Bankers Trust Company, as Collateral Agent as
referred to in the recorded memorandum described in clause (ix) below, (vi) an
Unrecorded Agreement, dated as of September 23, 1987, among Battery Park City
Authority, Olympia & York Tower B Company, Bankers Trust Company, as Collateral
Agent, ML Guarantor and Xxxxxxx Xxxxx/WFC/L, Inc. as referred to in the recorded
memorandum described in clause (ix) below, (vii) an Unrecorded Agreement dated
December 1987 between Battery Park City Authority and Olympia & York Tower B
Company as referred to in the recorded memorandum described in clause (ix)
below, (viii) an Unrecorded Agreement dated June 30, 1988 between Battery Park
City Authority and Olympia & York Tower B Company as referred to in the recorded
memorandum described in clause (ix) below, (ix) an Amendment of Severance Lease,
A-1
dated as of July 14, 1988, between Battery Park City Authority and Olympia &
York Tower B Company, a memorandum of which was recorded in the Register's
Office on October 4, 1988 in Reel 1473, Page 2124, and (x) an Unrecorded Letter
Agreement dated December 14, 1988, between Bankers Trust Company as Xxxxxxxxxx
Xxxxx, Xxxxxxx & Xxxx Xxxxx X Company and Battery Park City Authority. 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 B Company, as assignor, to and with, WFP Tower B
Co. L.P., which is intended to be recorded.
A-2
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
EXHIBIT C TO REIMBURSEMENT AGREEMENT
Form of Assignment and Assumption Agreement
This Assignment and Assumption Agreement is made and entered into as of
_________, ____ by and between ___________________, a ______________________
("Assignor") having an address at ___________________________________ and
___________________, a ______________________ having an address at
____________________ ("Assignee").
W I T N E S S E T H :
WHEREAS, Assignor, as successor-in-interest to WFP Tower B Co. L.P., and
Xxxxxxx Xxxxx/WFC/L, Inc., a New York corporation ("Merrill") are parties to
that certain Amended and Restated Reimbursement Agreement, dated as of November
21, 1996 (the "Reimbursement Agreement"), a copy of which is attached hereto;
and
WHEREAS, Assignor is, simultaneously herewith, assigning Lease B (as
defined in the Reimbursement Agreement) to Assignee; and
WHEREAS, Assignor desires to transfer and assign to Assignee all of its
rights and interests in and all of its obligations under the Reimbursement
Agreement, and Assignee is willing to accept and assume all of said rights,
interests and obligations;
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor hereby assigns to Assignee all of Assignor's rights, title,
interests in and obligations under the Reimbursement
Agreement.
2. Assignee hereby accepts the foregoing assignment of the Reimbursement
Agreement and agrees with Assignor that, effective as of the date hereof,
Assignee unconditionally will, and hereby does, assume and shall pay for,
satisfy, perform and observe any and all duties, liabilities and
obligations under the Reimbursement Agreement (whether the same have
accrued before or will accrue after the date hereof), and agrees to abide
by and be bound by all of the terms and conditions of the Reimbursement
Agreement in the place and stead of Assignor.
3. The assignment by Assignor in Paragraph 1 and the acceptance and
assumption by Assignee in Paragraph 2
C-1
are made subject to all of the terms and conditions of the Reimbursement
Agreement.
4. Assignor represents and warrants to Assignee, and Assignee represents and
warrants to Assignor, that as of the date hereof:
(A) Such party has full power, authority and legal right to execute, deliver,
perform and observe the provisions of this Assignment.
(B) The execution, delivery and performance by such party of this Assignment
has been duly authorized.
(C) This Assignment constitutes the legal, valid and binding obligation of
such party, enforceable in accordance with its terms.
(D) No authorization, approval, consent or permission (governmental or
otherwise) of any court, agency, commission or other authority or entity
is required for the due execution, delivery, performance or observance by
such party of this Assignment which has not been obtained.
5. All Notices (as defined in the Reimbursement Agreement) to Assignee should
be served as provided in Article 4 of the Reimbursement Agreement to the
following address:
___________________________________
___________________________________
___________________________________
[to be filled in by Assignee]
6. This Assignment and Assumption Agreement may be separately executed in one
or more counterparts, all of which taken together shall constitute one
instrument.
7. This Assignment and Assumption Agreement shall be governed by the laws of
the State of New York.
8. This Assignment shall bind and inure to the benefit of the parties'
respective successors and assigns.
9. Merrill is an intended third party beneficiary of this Agreement and shall
have any rights or remedies available to Assignor by reason of this
Assignment.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
and Assumption Agreement as of the date first above written.
C-2
ASSIGNOR:
By:_______________________________
Name:_______________________________
Title:_______________________________
ASSIGNEE:
By:_______________________________
Name:_______________________________
Title:_______________________________
C-3
