58th STREET BAR COMPANY LLC,
AND HUDSON LEASECO LLC, collectively,
as Borrower,
and
THE INSTITUTIONS FROM TIME TO TIME PARTY HERETO,
as Lenders,
as Administrative Agent for Lenders,
as Lead Arranger and Bookrunner.
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ARTICLE I Definitions; Principles of Construction | 1 | |||
Section 1.1 Definitions | 1 | |||
Section 1.2 Principles of Construction | 32 | |||
ARTICLE II General Terms | 33 | |||
Section 2.1 Loan; Disbursement to Borrower | 33 | |||
Section 2.2 Interest Rate and Yield-Related Provisions | 37 | |||
Section 2.3 Payments | 44 | |||
Section 2.4 Conditions Precedent to Closing | 48 | |||
Section 2.5 Delayed Draw Term Loan Conditions Precedent | 53 | |||
ARTICLE III Cash Management | 54 | |||
Section 3.1 Cash Management | 54 | |||
ARTICLE IV Representations and Warranties | 65 | |||
Section 4.1 Borrower Representations | 65 | |||
ARTICLE V Borrower Covenants | 79 | |||
Section 5.1 Affirmative Covenants | 79 | |||
Section 5.2 Negative Covenants | 92 | |||
ARTICLE VI Insurance; Casualty; Condemnation; Restoration | 96 | |||
Section 6.1 Insurance Coverage Requirements | 96 | |||
Section 6.2 Condemnation and Insurance Proceeds | 102 | |||
ARTICLE VII Impositions, Other Charges, Liens and Other Items | 107 | |||
Section 7.1 Impositions and Other Charges | 107 | |||
Section 7.2 No Liens | 108 | |||
Section 7.3 Contest | 108 | |||
ARTICLE VIII Transfers and Leases | 109 | |||
Section 8.1 Restrictions on Transfers | 109 | |||
Section 8.2 Sale of Equipment | 109 | |||
Section 8.3 Immaterial Transfers and Easements, etc. | 110 | |||
Section 8.4 Transfers of Interests in Borrower | 110 | |||
Section 8.5 Loan Assumption | 111 | |||
Section 8.6 Notice Required; Legal Opinions | 111 | |||
Section 8.7 Leases | 111 | |||
ARTICLE IX Interest Rate Cap Agreement | 115 | |||
Section 9.1 Interest Rate Cap Agreement | 115 | |||
Section 9.2 Pledge and Collateral Assignment | 115 | |||
Section 9.3 Covenants | 116 |
(i)
(continued)
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Section 9.4 Representations and Warranties | 117 | |||
Section 9.5 Payments | 118 | |||
Section 9.6 Remedies | 118 | |||
Section 9.7 Sales of Rate Cap Collateral | 120 | |||
Section 9.8 Public Sales Not Possible | 121 | |||
Section 9.9 Receipt of Sale Proceeds | 121 | |||
Section 9.10 Extension Interest Rate Cap Agreement | 121 | |||
Section 9.11 Filing of Financing Statements Authorized | 121 | |||
ARTICLE X Maintenance of Property; Alterations | 121 | |||
Section 10.1 Maintenance of Property | 121 | |||
Section 10.2 Alterations and Expansions | 122 | |||
ARTICLE XI Books and Records, Financial Statements, Reports and Other Information | 125 | |||
Section 11.1 Books and Records | 125 | |||
Section 11.2 Financial Statements | 125 | |||
ARTICLE XII Environmental Matters | 129 | |||
Section 12.1 Representations | 129 | |||
Section 12.2 Covenant | 129 | |||
Section 12.3 Environmental Reports | 130 | |||
Section 12.4 Environmental Indemnification | 130 | |||
Section 12.5 Recourse Nature of Certain Indemnifications | 131 | |||
ARTICLE XIII Reserved | 132 | |||
ARTICLE XIV Administrative Agent | 132 | |||
Section 14.1 Appointment | 132 | |||
Section 14.2 Delegation of Duties | 132 | |||
Section 14.3 Exculpatory Provisions | 132 | |||
Section 14.4 Reliance by the Agents | 132 | |||
Section 14.5 Notice of Default | 133 | |||
Section 14.6 Non-Reliance on Agents and Other Lenders | 133 | |||
Section 14.7 Indemnification; Reimbursement of Protective Advances | 134 | |||
Section 14.8 Agents in Their Individual Capacity | 135 | |||
Section 14.9 Successor Administrative Agent | 135 | |||
Section 14.10 Limitations on Agents Liability | 135 | |||
Section 14.11 Approvals of Lenders | 136 | |||
ARTICLE XV Assignments and Participations | 136 | |||
Section 15.1 Assignments, Delegations and Pledges | 136 | |||
Section 15.2 Register; Effect of Assignment and Acceptance | 136 | |||
Section 15.3 Substitute Notes | 137 | |||
Section 15.4 Participations | 137 | |||
Section 15.5 Security Interest in Favor of Federal Reserve Bank | 138 | |||
Section 15.6 Redirection Notice | 138 |
(ii)
(continued)
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Section 15.7 Syndication | 138 | |||
Section 15.8 Pfandbrief Appraisal | 139 | |||
ARTICLE XVI Reserve Accounts | 139 | |||
Section 16.1 Tax Reserve Account | 139 | |||
Section 16.2 Insurance Reserve Account | 140 | |||
Section 16.3 Cash Sweep Reserve Account | 141 | |||
Section 16.4 Required Repairs Reserve Account | 141 | |||
Section 16.5 FF&E Reserve Account | 142 | |||
Section 16.6 Ground Rent Reserve Account | 143 | |||
ARTICLE XVII Defaults | 143 | |||
Section 17.1 Event of Default | 143 | |||
Section 17.2 Remedies | 146 | |||
Section 17.3 Remedies Cumulative; Waivers | 148 | |||
Section 17.4 Costs of Collection | 148 | |||
ARTICLE XVIII Special Provisions | 149 | |||
Section 18.1 Exculpation | 149 | |||
ARTICLE XIX Miscellaneous | 153 | |||
Section 19.1 Survival | 153 | |||
Section 19.2 Administrative Agent’s Discretion | 154 | |||
Section 19.3 Governing Law | 154 | |||
Section 19.4 No Assignment by Borrower | 156 | |||
Section 19.5 Modification | 156 | |||
Section 19.6 Modification, Waiver in Writing | 156 | |||
Section 19.7 Delay Not a Waiver | 156 | |||
Section 19.8 Notices | 157 | |||
Section 19.9 TRIAL BY JURY | 158 | |||
Section 19.10 Headings | 158 | |||
Section 19.11 Severability | 159 | |||
Section 19.12 Preferences | 159 | |||
Section 19.13 Waiver of Notice | 159 | |||
Section 19.14 Expenses; Indemnity; No Consequential Damages | 159 | |||
Section 19.15 Exhibits and Schedules Incorporated | 162 | |||
Section 19.16 Offsets, Counterclaims and Defenses | 162 | |||
Section 19.17 Liability of Assignees of Lenders | 162 | |||
Section 19.18 Sharing of Payments | 163 | |||
Section 19.19 Set-off | 163 | |||
Section 19.20 No Joint Venture or Partnership; No Third Party Beneficiaries | 163 | |||
Section 19.21 Confidentiality | 164 | |||
Section 19.22 Waiver of Marshalling of Assets | 164 | |||
Section 19.23 Waiver of Counterclaim and other Actions | 165 | |||
Section 19.24 Conflict; Construction of Documents; Reliance | 165 |
(iii)
(continued)
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Section 19.25 Prior Agreements | 165 | |||
Section 19.26 Reinstatement | 166 | |||
Section 19.27 Counterparts | 166 | |||
Section 19.28 Nature of Borrower Obligations | 166 |
EXHIBITS | ||||
Exhibit A | — | Title Insurance Requirements | ||
Exhibit B | — | Survey Requirements | ||
Exhibit C | — | Single Purpose Entity Provisions | ||
Exhibit D | — | Intentionally Omitted | ||
Exhibit E | — | Non-Consolidation Opinion Requirements | ||
Exhibit F | — | Counterparty Opinion Requirements | ||
Exhibit G | — | Form of Tenant Estoppel Letter | ||
Exhibit H | — | Borrower Organizational Structure | ||
Exhibit I | — | Interest Rate Cap Agreement Requirements | ||
Exhibit J | — | Form of Assignment and Acceptance Agreement | ||
Exhibit K | — | Form of Subordination, Non-Disturbance and Attornment Agreement | ||
Exhibit L | — | Form of Note | ||
Exhibit M | — | Counterparty Acknowledgment | ||
Exhibit N | — | Funding Notice | ||
Exhibit O | — | Form of Independent Director Certificate | ||
Exhibit P | — | Form of IP Security Agreement |
SCHEDULES | ||||
Schedule I | — | Litigation Schedule | ||
Schedule II | — | Labor Matters Schedule | ||
Schedule III | — | Rent Roll | ||
Schedule IV | — | Intentionally Omitted | ||
Schedule V | — | SRO Tenancies | ||
Schedule VI | — | Required Repairs | ||
Schedule VII | — | Percentage Share | ||
Schedule VIII | — | Ground Lease | ||
Schedule IX | — | IP Schedule |
(iv)
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ARTICLE XIV
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80 STATE STREET
ALBANY, NEW YORK 12207-2543
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200 Crescent Court, Suite 550
Dallas, Texas 75201
Attn: Justin Shull
Telephone: (214) 740-7906
Telecopy: (214) 740-7910
New York, New York 10005
Attn: George Reynolds
Telephone: (212) 250-2362
Telecopy: (212) 797-4496
New York, New York 10018
Attn: Richard Szymanski
Telephone: (212) 277-4188
Telecopy: (212) 277-4270
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Attention: Bruce Gilchrist, Esq.
Telephone: (202) 637-5686
Telecopy: (202) 637-5910
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BORROWER: | ||||||||
HENRY HUDSON HOLDINGS LLC, | ||||||||
a Delaware limited liability company, | ||||||||
By: | Henry Hudson Senior Mezz LLC, | |||||||
its managing member | ||||||||
By: | Morgans Group LLC, | |||||||
its managing member | ||||||||
By: | Morgans Hotel Group Co., | |||||||
its managing member | ||||||||
By: | /s/ Richard Szymanski | |||||||
Name: | Richard Szymanski | |||||||
Title: | Chief Financial Officer and Secretary | |||||||
HUDSON LEASECO LLC, | ||||||||
a New York limited liability company | ||||||||
By: | Hudson Managing Member LLC, | |||||||
its managing member | ||||||||
By: | Henry Hudson Holdings LLC, | |||||||
its managing member | ||||||||
By: | Henry Hudson Senior Mezz LLC, | |||||||
its managing member | ||||||||
By: | Morgans Group LLC, | |||||||
its managing member | ||||||||
By: | Morgans Hotel Group Co., | |||||||
its managing member | ||||||||
By: | /s/ Richard Szymanski | |||||||
Name: | Richard Szymanski | |||||||
Title: | Chief Financial Officer and Secretary |
58th STREET BAR COMPANY LLC, | ||||||||
a Delaware limited liability company | ||||||||
By: | Hudson Pledgor LLC, | |||||||
its managing member | ||||||||
By: | Henry Hudson Holdings LLC | |||||||
its managing member | ||||||||
By: | Henry Hudson Senior Mezz LLC, | |||||||
its managing member | ||||||||
By: | Morgans Group LLC, | |||||||
its managing member | ||||||||
By: | Morgans Hotel Group Co., | |||||||
its managing member | ||||||||
By: | /s/ Richard Szymanski | |||||||
Name: | Richard Szymanski | |||||||
Title: | Chief Financial Officer and Secretary |
ADMINISTRATIVE AGENT: | ||||||||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as | ||||||||
Administrative Agent | ||||||||
By: | /s/ George R. Reynolds | |||||||
Name: | George R. Reynolds | |||||||
Title: | Director | |||||||
By: | /s/ Alexander B. V. Johnson | |||||||
Name: | Alexander B. V. Johnson | |||||||
Title: | Managing Director |
LENDERS: | ||||||||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Lender | ||||||||
By: | /s/ George R. Reynolds | |||||||
Name: | George R. Reynolds | |||||||
Title: | Director | |||||||
By: | /s/ Alexander B. V. Johnson | |||||||
Name: | Alexander B. V. Johnson | |||||||
Title: | Managing Director |
EXHIBITS |
Exhibit A | — | Title Insurance Requirements | ||
Exhibit B | — | Survey Requirements | ||
Exhibit C | — | Single Purpose Entity Provisions | ||
Exhibit D | — | Intentionally Omitted | ||
Exhibit E | — | Non-Consolidation Opinion Requirements | ||
Exhibit F | — | Counterparty Opinion Requirements | ||
Exhibit G | — | Form of Tenant Estoppel Letter | ||
Exhibit H | — | Borrower Organizational Structure | ||
Exhibit I | — | Interest Rate Cap Agreement Requirements | ||
Exhibit J | — | Form of Assignment and Acceptance Agreement | ||
Exhibit K | — | Form of Subordination, Non-Disturbance and Attornment Agreement | ||
Exhibit L | — | Form of Note | ||
Exhibit M | — | Counterparty Acknowledgment | ||
Exhibit N | — | Form of Funding Notice | ||
Exhibit O | — | Form of Independent Director Certificate | ||
Exhibit P | — | Form of IP Security Agreement |
AND AFFIRMATIVE COVERAGES
Page 2
• | Restrictions, Encroachments, Minerals Endorsement ALTA Form 9 or equivalent. |
• | (If not available, the Title Policy must insure by way of affirmative coverage statements that there are no encroachments by any of the improvements onto easements, rights of way or other exceptions to streets or adjacent property, or insure against loss or damage resulting therefrom.) |
• | Environmental Protection Lien Endorsement. |
• | (The Title Policy may make an exception only for specific state statutes that provide for potential subsequent liens that could take priority over the lien securing the Loan.) |
• | Direct Access to Public Road Endorsement. |
• | Usury Endorsement. |
• | Land Same As Survey/Legal Description Endorsement. |
• | Subdivision Endorsement. |
• | Doing Business Endorsement. |
• | Deletion of Arbitration Endorsement. |
• | Separate Tax Lot Endorsement. |
• | Street Address Endorsement. |
• | Contiguity Endorsement. |
• | Variable Rate Endorsement. |
• | Mortgage Tax Endorsement. |
Page 3
• | Mortgage Recording Tax Endorsement. |
• | Mortgage Assignment Endorsement. |
• | Any of the following endorsements customary in the state in which the Property is located or as required by the nature of the transaction: |
Non-Imputation Endorsement
Blanket Un-located Easements Endorsement
Closure Endorsement
AGENT FOR THE LENDERS
SURVEY REQUIREMENTS
Page 2
• | �� | railroad tracks and sidings; | |
• | manholes, catch basins, valve vaults or other surface indications of subterranean uses; | ||
• | wire and cables (including their function) crossing the surveyed premises, all poles on or within ten feet of the surveyed premises, and the dimensions of all crosswires or overhangs affecting the surveyed premises; and | ||
• | utility company installations on the surveyed premises. |
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1. | An opinion of Delaware counsel that federal bankruptcy court would hold that Delaware law, and not federal law, governs the determination of what persons or entities have authority to file a voluntary bankruptcy petition on behalf of the limited liability company. | ||
2. | Opinions of Delaware counsel as follows: |
a. | The limited liability company agreement constitutes a legal, valid and binding agreement of its member, and is enforceable against such member, in accordance with its terms. |
Page 2
b. | In order for a voluntary bankruptcy petition to be filed on behalf of the Company, the unanimous consent of all of the independent managers/members is required and the provision requiring such unanimous consent in the limited liability company agreement constitutes a legal, valid and binding agreement of the member, enforceable against the member, in accordance with its terms. |
c. | The bankruptcy or dissolution of the limited liability company’s sole member will not, by itself, cause the limited liability company to be dissolved or its affairs to be wound up. |
d. | A judgment creditor of the member may not satisfy its claims against the member by asserting a claim against the assets of the limited liability company. |
e. | The limited liability company is a separate legal entity, and shall continue as such until the cancellation of the limited liability company certificate. |
(a) | Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation and has the organizational power and authority to execute and deliver, and to perform its obligations under the Interest Rate Cap Agreement and the Acknowledgment. |
(b) | The execution and delivery of the Interest Rate Cap Agreement and the Acknowledgment by Counterparty, and any other agreement which Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property. |
(c) | All consents, authorizations and approvals required for the execution and delivery by Counterparty of the Interest Rate Cap Agreement, the Acknowledgment and any other agreement which the Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any governmental authority or regulatory body is required for such execution, delivery or performance. |
(d) | The Interest Rate Cap Agreement, the Acknowledgment and any other agreement which Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by Counterparty and constitutes the legal, valid and binding obligation of Counterparty, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). |
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(a) | Interest Rate Cap Guarantor is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest Rate Cap Guaranty. |
(b) | The execution and delivery of the Interest Rate Cap Guaranty by Interest Rate Cap Guarantor, and any other agreement which Interest Rate Cap Guarantor has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property. |
(c) | All consents, authorizations and approvals required for the execution and delivery by Interest Rate Cap Guarantor of the Interest Rate Cap Guaranty, and any other agreement which Interest Rate Cap Guarantor has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any governmental authority or regulatory body is required for such execution, delivery or performance. |
(d) | The Interest Rate Cap Guaranty, and any other agreement which Interest Rate Cap Guarantor has executed and delivered pursuant thereto, has been duly executed and delivered by Interest Rate Cap Guarantor and constitutes the legal, valid and binding obligation of Interest Rate Cap Guarantor, enforceable against Interest Rate Cap Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). |
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(a) | Jurisdiction where Counterparty and/or Interest Rate Cap Guarantor, as applicable, is located will respect and give effect to the choice of law provisions of the Interest Rate Cap Agreement and the Acknowledgment. |
(b) | A judgment obtained in the courts of the State of New York is enforceable in the jurisdiction where Counterparty and/or Interest Rate Cap Guarantor, as applicable, is located. |
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Very truly yours, [INSERT NAME OF TENANT] | ||||
By: | ||||
Title: | ||||
to Form of Tenant Estoppel Letter
[Provided Separately]
• | The form of cap agreement should be the 1992 ISDA Agreement (Multicurrency Cross Border or Local Currency Single Jurisdiction) subject to the 2000 Definitions. | ||
• | Once the cap premium is paid by Borrower, it cannot default. (Paragraph 4 of the May 1989 ISDA Addendum to Schedule to Interest Rate and Currency Exchange Agreement or similar language must be incorporated by reference). | ||
• | “Cross Default” provision of Section 5(a)(vi) of the ISDA Master Agreement will not apply. | ||
• | Grace and cure periods in Section 5 of the ISDA Master Agreement will either (i) not apply or (ii) if applicable, any grace or cure periods must expire in time to ensure the availability of cap payments by cap provider on a timely basis for distribution to the holders of the rated securities. | ||
• | “Credit Event Upon Merger” provisions of Section 5(b)(iv) of the ISDA Master Agreement will not apply. | ||
• | “Automatic Early Termination” provision in Section 6(a) of the ISDA Master Agreement will not apply. | ||
• | Termination Events under Sections 5(b)(ii) and 5(b)(iii) of the ISDA Master Agreement either (i) will only constitute termination events exercisable by Borrower against cap provider or (ii) if exercisable by both parties, at the time of any event triggering a termination event under Sections 5(b)(ii) and/or 5(b)(iii), cap provider must either (a) transfer the cap to a replacement cap provider acceptable to Administrative Agent at cap provider’s sole cost and expense, or (b) continue to perform its obligations under the cap agreement including, without limitation, the obligation to unconditionally “gross up” in the event that a withholding tax is imposed on payments being made by the cap provider. | ||
• | Borrower shall be precluded from payment of any out of pocket expenses required under Section 11 of the ISDA Master Agreement and incurred by cap provider related to the enforcement and protection of cap provider’s rights under the cap agreement. | ||
• | Market Quotation and Second Method will be used for the purpose of computing amounts payable on early termination with a provision for loss if Market Quotation is not available. | ||
• | The parties shall be deemed to have no Affiliates for purposes of the ISDA Master Agreement. | ||
• | “Specified Entities” will not apply for purposes of Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and 5(b)(iv) of the ISDA Master Agreement. | ||
• | Transaction will be governed by New York law. | ||
• | For the purposes of Section 6(e) of the ISDA Master Agreement, set off and counterclaim will not apply and all payments by cap provider shall be made without set off or counterclaim. | ||
• | The definition of LIBOR will be USD LIBOR BBA and must match the definition of LIBOR in the loan agreement. |
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• | The definition of Business Day must match the definition of Business Day in the loan agreement. | ||
• | LIBOR must be determined on the LIBOR Determination Date. | ||
• | Payments must be made by the cap provider on or prior to the applicable Payment Date in respect of a period corresponding to the applicable Interest Period. | ||
• | The Termination Date of the cap must be no earlier than the last day of the Interest Period in which the Maturity Date under the loan agreement occurs. | ||
• | The Day Count Fraction in the cap must match that contained in the loan agreement. | ||
• | The Notional Amount in the cap must [equal $135,000,000][match the principal amount of the loan as of the date of the loan agreement]. | ||
• | US Dollars are selected as the Termination Currency under the cap. | ||
• | Section 2(c)(ii) of the ISDA Master Agreement will apply to the Transaction. | ||
• | Cap provider and Borrower will represent that it is not a multi branch party. | ||
• | Cap provider will covenant that it will not petition Borrower into bankruptcy (or join in any such petition) for 365 days after all outstanding rated securities have been paid in full. | ||
• | If the ISDA Master Agreement (Multicurrency Cross Border)(“Cross Border Agreement”) is utilized, additional scheduled items and provisions to address “indemnifiable taxes” and other related issues present in cross border transactions must be incorporated: |
• | Section 2(d)(i)(4) of the Cross Border Agreement must be amended to require the cap provider to unconditionally “gross up” in the event that a withholding tax is imposed on payments being made by the cap provider. |
• | The definition of “indemnifiable tax” must cover any and all withholding tax. |
• | Section 2(d)(i)(4) of the Cross Border Agreement will be deleted such that cap provider is not excused from having to “gross up” due to Borrower’s breach of a tax representation or failure to notify cap provider of a breach of a tax representation and (ii) Borrower makes no tax representations in the cap agreement or schedule. |
• | Section 2(d)(ii) of the Cross Border Agreement must be amended to provide that there is no obligation by Borrower to make payments to the cap provider for any payments made by the cap provider without deduction for taxes (for which there is no obligation to gross up). |
• | Section 4(e) of the Cross Border Agreement must be amended to provide that there are no payment obligations by Borrower to cap provider for any indemnification resulting from stamp registration or other documentary tax levied by Borrower’s taxing authority on the cap provider. |
1. | Assignor: | _____ | ||
2. | Assignee: | _____ | ||
3. | Loan Agreement: | Loan and Security Agreement, dated as of August _____ 2011 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) among HENRY HUDSON HOLDINGS LLC, a Delaware limited liability company (“Owner”), 58th STREET BAR COMPANY LLC, a Delaware limited liability company (“Bar Lessee”), and HUDSON LEASECO LLC, a New York limited liability company (“Operating Lessee”; Operating Lessee, Bar Lessee and Owner, together with their respective successors and assigns, collectively “Borrower”), the various financial institutions as are or may become parties thereto, and Deutsche Bank Trust Company Americas, as Administrative Agent. |
1 | This form of Lender Assignment Agreement should be used by Lenders for an assignment to a single Assignee or to funds managed by the same or related investment managers. |
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3. Assigned Interest: | ||||
Percentage interest assigned: | % | |||
Aggregate outstanding principal amount of the Loan assigned: | $ | |||
Outstanding Delayed Draw Term Loan Commitments assigned: | $ | |||
Principal amount of Note payable to Assignee: | $ | |||
Principal amount of Note payable to Assignor: | $ | |||
Effective Date (if other than date of acceptance by Lender): |
Payment Instructions:
Attention: | ||||||
Reference: | ||||||
Address for Notices: | ||||||
Relationship Contact: |
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ASSIGNOR | ASSIGNEE2 | |||||||||
[NAME OF ASSIGNOR] | [NAME OF ASSIGNEE] | |||||||||
By: | By: | |||||||||
Title: | Title: |
DEUTSCHE BANK TRUST COMPANY AMERICAS,
By: | ||||
Title: | ||||
By: | ||||
Title: |
2 | Add additional signature blocks, as needed, if this Form is being used by funds managed by the same or related investment managers. | |
3 | Insert only if assignment is being made to an Eligible Assignee that is not an existing Lender, an Affiliate of an existing Lender or an Approved Fund. |
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AND HUDSON LEASECO LLC
LOAN AGREEMENT
STANDARD TERMS AND CONDITIONS
FOR
LENDER ASSIGNMENT AGREEMENT
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NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Tenant
the Lenders
County: | [ ] | |
Section: | [ ] | |
Block: | [ ] | |
Lot: | [ ] | |
Premises: | ||
Dated: as of , _____ |
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: Leila Rachlin, Esq.
1111779-2203
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NON-DISTURBANCE AND ATTORNMENT AGREEMENT
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent on behalf of the Lenders, a New York banking corporation | ||||
By: | ||||
Name: | ||||
Title: |
By: | ||||
Name: | ||||
Title: |
[TENANT] | ||||
By: | ||||
Name: | ||||
Title: |
AGREED AND CONSENTED TO: LANDLORD: [ ] | ||||
By: | ||||
Name: | ||||
Title: |
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STATE OF NEW YORK | ) | |
) ss. | ||
COUNTY OF NEW YORK | ) |
[Notary Seal] | My commission expires: |
STATE OF NEW YORK | ) | |
) ss. | ||
COUNTY OF NEW YORK | ) |
[Notary Seal] | My commission expires: |
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STATE OF NEW YORK | ) | |
) ss. | ||
COUNTY OF NEW YORK | ) |
[Notary Seal] | My commission expires: |
STATE OF NEW YORK | ) | |
) ss. | ||
COUNTY OF NEW YORK | ) |
[Notary Seal] | My commission expires: |
to Exhibit K
PROMISSORY NOTE
$115,000,000.00 | New York, New York | |
August 12, 2011 |
HENRY HUDSON HOLDINGS LLC, | ||||||
a Delaware limited liability company, | ||||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||||
By: | Morgans Group LLC, its managing member | |||||
By: | Morgans Hotel Group Co., its managing member | |||||
By: | ||||||
Title: | ||||||
HUDSON LEASECO LLC, | ||||||
a New York limited liability company | ||||||
By: | Hudson Managing Member LLC, its managing member | |||||
By: | Henry Hudson Holdings LLC, its managing member | |||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||||
By: | Morgans Group LLC, its managing member | |||||
By: | Morgans Hotel Group Co., its managing member | |||||
By: | ||||||
Title: |
58th STREET BAR COMPANY LLC, | ||||||
a Delaware limited liability company | ||||||
By: | Hudson Pledgor LLC, its managing member | |||||
By: | Henry Hudson Holdings LLC its managing member | |||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||||
By: | Morgans Group LLC, its managing member | |||||
By: | Morgans Hotel Group Co., its managing member | |||||
By: | ||||||
Title: |
STATE OF NEW YORK | ) | |||
) ss.: | ||||
COUNTY OF NEW YORK | ) |
DEUTSCHE BANK TRUST COMPANY AMERICAS | ||||||
By: | ||||||
Title: | ||||||
By: | ||||||
Title: |
STATE OF NEW YORK | ) | |||
) ss.: | ||||
COUNTY OF NEW YORK | ) |
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ACKNOWLEDGEMENT
Name: | Hudson Hotel, New York, NY f/b/o DeutscheBank Trust Company Americas, as Administrative Agent Collection Account | |||||
Bank: | JP Morgan Chase 270 Park Avenue New York, New York | |||||
Account No.: | 114-917779 | |||||
ABA No, | 021000021 |
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do Deutsche Bank Securities, Inc. 200 Crescent Court, Suite 550 Dallas, Texas 75201 Attn: Justin Shull Telephone: (214) 740-7906 Telecopy: (214) 740-7910 with a copy to it at: 60 Wall Street New York, New York 10005 Attn: George Reynolds Telephone: (212) 250-2362 Telecopy: (212) 797-4496 |
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SMBC CAPITAL MARKETS, INC. | ||||||
By: | ||||||
Title: | ||||||
By: | ||||||
Title: |
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CONSENTED TO BY: | ||||||
HENRY HUDSON HOLDINGS LLC, | ||||||
a Delaware limited liability company, | ||||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||||
By: | Morgans Group LLC, its managing member | |||||
By: | Morgans Hotel Group Co., its managing member | |||||
By: | ||||||
Title: |
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HUDSON LEASECO LLC, | ||||||
a Delaware New York limited liability company | ||||||
By: | Hudson Managing Member LLC, its managing member | |||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||||
By: | Morgans Group LLC, its managing member | |||||
By: | Morgans Hotel Group Co., its managing member | |||||
By: | ||||||
Title: | ||||||
58th STREET BAR COMPANY LLC, | ||||||
a Delaware limited liability company | ||||||
By: | Hudson Managing Member LLC, its managing member | |||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||||
By: | Morgans Group LLC, its managing member | |||||
By: | Morgans Hotel Group Co., its managing member | |||||
By: | ||||||
Title: |
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[Attached Hereto]
Page 1
1. Term Loans On the Closing Date | $ | [___,___,___ | ||
2. Delayed Draw Term Loans | $ | [___,___,___ |
1
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2
HENRY HUDSON HOLDINGS LLC | ||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||
By: | Morgans Group LLC, its managing member | |||
By: | Morgans Hotel Group Co., its managing member | |||
By: | ||||
Title: | ||||
58th STREET BAR COMPANY LLC | ||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||
By: | Morgans Group LLC, its managing member | |||
By: | Morgans Hotel Group Co., its managing member | |||
By: | ||||
Title: |
3
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HUDSON LEASECO LLC | ||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||
By: | Morgans Group LLC, its managing member | |||
By: | Morgans Hotel Group Co., its managing member | |||
By: | ||||
Title: |
4
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5
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INDEPENDENT MANAGER: | ||||||
By: | ||||||
Title: | ||||||
By: | ||||||
Title: |
Page 1
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2
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3
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4
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ASSIGNORS: | ||||||
HENRY HUDSON HOLDINGS LLC, | ||||||
a Delaware limited liability company, | ||||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||||
By: | Morgans Group LLC, its managing member | |||||
By: | Morgans Hotel Group Co., its managing member | |||||
By: | ||||||
Title: | ||||||
HUDSON LEASECO LLC, | ||||||
a Delaware limited liability company | ||||||
By: | Hudson Managing Member LLC, its managing member | |||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||||
By: | Morgans Group LLC, its managing member | |||||
By: | Morgans Hotel Group Co., its managing member | |||||
By: | ||||||
Title: |
6
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58th STREET BAR COMPANY LLC, | ||||||
a Delaware limited liability company | ||||||
By: | Hudson Managing Member LLC, its managing member | |||||
By: | Henry Hudson Senior Mezz LLC, its managing member | |||||
By: | Morgans Group LLC, its managing member | |||||
By: | Morgans Hotel Group Co., its managing member | |||||
By: | ||||||
Title: |
7
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ASSIGNEE: | ||||||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as | ||||||
Administrative Agent, a New York banking corporation | ||||||
By: | ||||||
Title: | ||||||
By: | ||||||
Title: |
8
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STATE OF NEW YORK | ) | |||
COUNTY OF NEW YORK | ) |
Signature: | ||||||
[Notary Seal] | My commission expires: | |||
STATE OF NEW YORK | ) | |||
COUNTY OF NEW YORK | ) |
Signature: | ||||||
[Notary Seal] | My commission expires: | |||
9
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STATE OF NEW YORK | ) | |||
COUNTY OF NEW YORK | ) |
Signature: | ||||||
[Notary Seal] | My commission expires: | |||
10
to
IP SECURITY AGREEMENT
to
IP SECURITY AGREEMENT
to
IP SECURITY AGREEMENT
to
IP SECURITY AGREEMENT
to
IP SECURITY AGREEMENT
1. | Thomas Pavese v. Hudson Hotel,et al.(N.Y. Sup. Ct. Docket No. 1116550-08) | |
2. | Morgans Hotel Group et al., v. John Doe Co. d/b/a Hudson Terrace,et al.(10-cv-5335- 1(MW (S.D.N.Y.)) | |
3. | Mr. Philippe Starck has initiated arbitration proceedings in the London Court of International Arbitration regarding an exclusive service agreement that he entered into with Residual Hotel Interest LLC (formerly known as Morgans Hotel Group LLC) in February 1998 regarding the design of certain hotels now owned by us. We are not a party to these proceedings at this time. To our knowledge, they have not continued to pursue this arbitration. |
1. | Agreement dated February 2011 by and between the New York Hotel & Motel Trades Council, AFL-CIO and Morgans Hotel Group |
2. | Voluntary Settlement Agreement dated November 11, 2010 by and between the New York Hotel & Motel Trades Council, AFL-CIO and the Hudson Hotel |
3. | Agreement dated October 2010 by and between the New York Hotel & Motel Trades Council, AFL-CIO and Hudson Hotel |
4. | Agreement dated September 2010 by and between the Morgans Hotel Group Management, LLC, d/b/a Hudson Hotel on its own behalf and on behalf of the Hudson Hotel and the New York Hotel & Motel Trades Council, AFL-CIO |
5. | Agreement by and between the Morgans Hotel Group, on behalf of the Hudson Hotel and the New York Hotel & Motel Trades Council, AFL-CIO (May 2010) |
6. | Agreement dated May 10, 2010 by and between the New York Hotel & Motel Trades Council, AFL-CIO and the Hudson Hotel. |
7. | Settlement Agreement dated February 9, 2010 by and between the New York Hotel & Motel Trades Council, AFL-CIO and the Hudson Hotel |
8. | Agreement dated September 2010 by and between Hudson Hotel and the New York Hotel & Motel Trades Council, AFL-CIO |
9. | Agreement dated January 2008 by and between the New York Hotel & Motel Trades Council, AFL-CIO and the Hudson Hotel. |
10. | Agreement dated April 25, 2008 be and between the Hudson Hotel and the New York Hotel & Motel Trades Council, AFL-CIO |
11. | Collective Bargaining Agreement, for the period of July 1, 2006 through June 30, 2012, by and between Hotel Association of New York City, Inc. and the New York Hotel & Motel Trades Council, AFL-CIO |
12. | Letter Agreement dated May 28, 2004 between International Union of Operating Engineers Local Union No. 94, 94A, 94B |
13. | Concessionaire Agreement by and between the New York Hotel and Motel Trades Council, AFL-CIO and Ian Schrager Hotels, Inc. dated November 9, 2000 |
CURRENT | MISC. | |||||||||||||||
PROPERTY/ | BASE | ADDITIONAL | PERCENTAGE | LEASE | TENANT | |||||||||||
LANDLORD | TENANT | SPACE | RENT | RENT | RENT | EXPIRATION | EXTENSION | RIGHTS | ||||||||
Henry Hudson Holdings LLC 356 W 58th street NY 11377 | Hudson Leaseco LLC | Whole building including 10th floor and ground floor retail space. | $45,000,000 + CPI Adjuster annually | Tenant to pay all taxes and assessments. | N/A | December 318, 2035 | N/A | N/A | ||||||||
Henry Hudson Holdings LLC 356 W 58th street NY 11377 | 58th Street Bar Company LLC | Bars (including Hudson Bar, Hudson Hall Library Bar and Private Park) | $1,200.00 annually. | N/A | N/A | Ten year anniversary of date of Lease. | Tenant has two options to extend for additional five year terms. | N/A |
SRO TENANCIES
1169 | $ | 501.11 | Monthly | 2032 | $ | 124.35 | weekly | 2150 | $ | 96.82 | Weekly | |||||||||||||||||||||
1443 | $ | 372.44 | Monthly | 2034 | $ | 429.60 | Monthly | 2155 | $ | 83.47 | Weekly | |||||||||||||||||||||
1516 | $ | 96.81 | Weekly | 2039 | $ | 402.57 | Monthly | 2157 | $ | 419.47 | Monthly | |||||||||||||||||||||
1546 | $ | 418.79 | Monthly | 2040 | $ | 570.66 | Monthly | 2205 | $ | 484.88 | Monthly | |||||||||||||||||||||
1632 | $ | 112.18 | Weekly | 2045 | $ | 502.26 | Monthly | 2206 | $ | 538.19 | Monthly | |||||||||||||||||||||
1722 | $ | 277.36 | Monthly | 2046 | $ | 416.47 | Monthly | 2207 | $ | 419.46 | Monthly | |||||||||||||||||||||
1753 | $ | 490.18 | Monthly | 2050 | $ | 96.81 | Weekly | 2211 | $ | 404.88 | Monthly | |||||||||||||||||||||
1756 | $ | 536.28 | Monthly | 2102 | $ | 88.31 | Weekly | 2212 | $ | 415.32 | Monthly | |||||||||||||||||||||
1812 | $ | 419.48 | Monthly | 2103 | $ | 393.02 | Monthly | 2214 | $ | 609.62 | Monthly | |||||||||||||||||||||
1839 | $ | 375.26 | Monthly | 2106 | $ | 419.95 | Monthly | 2227 | $ | 242.58 | Monthly | |||||||||||||||||||||
1846 | $ | 86.81 | Weekly | 2107 | $ | 130.62 | Weekly | 2229 | $ | 484.88 | Monthly | |||||||||||||||||||||
1856 | $ | 501.11 | Monthly | 2112 | $ | 419.45 | Monthly | 2231 | $ | 484.34 | Monthly | |||||||||||||||||||||
1916 | $ | 396.69 | Monthly | 2114 | $ | 543.12 | Monthly | 2232 | $ | 454.74 | Monthly | |||||||||||||||||||||
2005 | $ | 431.53 | Monthly | 2115 | $ | 90.71 | Weekly | 2235 | $ | 90.71 | Weekly | |||||||||||||||||||||
2007 | $ | 416.47 | Monthly | 2117 | $ | 393.02 | Monthly | 2236 | $ | 96.81 | Weekly | |||||||||||||||||||||
2016 | $ | 544.04 | Monthly | 2127 | $ | 453.41 | Monthly | 2239 | $ | 402.57 | Monthly | |||||||||||||||||||||
2017 | $ | 96.81 | Monthly | 2133 | $ | 701.67 | Monthly | 2240 | $ | 419.96 | Monthly | |||||||||||||||||||||
2022 | $ | 356.36 | Monthly | 2134 | $ | 467.48 | Monthly | 2244 | $ | 506.89 | Monthly | |||||||||||||||||||||
2023 | $ | 393.02 | Monthly | 2135 | $ | 183.00 | Monthly | 2245 | $ | 919.72 | Monthly | |||||||||||||||||||||
2025 | $ | 419.46 | Monthly | 2138 | $ | 484.88 | Monthly | 2252 | $ | 97.40 | Weekly | |||||||||||||||||||||
2027 | $ | 416.47 | Monthly | 2139 | $ | 340.37 | Monthly | 2255 | $ | 475.23 | Monthly | |||||||||||||||||||||
2030 | $ | 89.57 | Weekly | 2145 | $ | 255.34 | Monthly | 2253 | $ | 457.06 | Monthly | |||||||||||||||||||||
2031 | $ | 422.27 | Monthly | 2146 | $ | 69.73 | Weekly | 2257 | $ | 90.71 | Weekly |
REQUIRED REPAIRS
1. | Store Unit — Lease dated January 1, 1999 between Adrienne Schatz (a/Ida Adrienne Wechsler), an individual and Cheryl Hirsch, an individual, collectively, as landlord, and Henry Hudson Holdings LLC, as tenant (as the same may be amended or modified from time to time in accordance with the terms hereof) | |
2. | Tenth Floor Unit — Lease dated February 11, 1999 between Irving Schatz, as landlord, and Henry Hudson Holdings, LLC, successor-in-interest to Ian Schrager Hotels LLC, as tenant (as the same may be amended or modified from time to time in accordance with the terms hereof) |
1. | Hotel Management Agreement, dated as of June 23, 2011, by and between Hudson Leaseco LLC, a New York limited liability company and Morgans Hotel Group Management LLC, a Delaware limited liability company (as the same may be amended or modified from time to time in accordance with the terms hereof) |