Execution Copy
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CREDIT AGREEMENT
(this “ Amendment ”) dated as of August 11,
2009, by and among SL GREEN OPERATING PARTNERSHIP, L.P., a limited
partnership formed under the laws of the State of Delaware (the
“ Borrower ”), SL GREEN REALTY CORP., a
corporation formed under the laws of the State of Maryland (the
“ Parent ”), WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent (the “ Agent ”), Wells
Fargo Securities, LLC and Banc of America Securities, LLC, each as
Joint Lead Arrangers for purposes of this Amendment (the “
Joint Lead Arrangers ”), and each of the financial
institutions signatory hereto (the “ Required Lenders
”).
WHEREAS, the Requisite Lenders and certain other
financial institutions (who were “ Lenders ”
under the Existing Credit Agreement) made available to the Borrower
a revolving credit facility, including a letter of credit
subfacility and a swingline subfacility, on the terms and
conditions contained in that certain Amended and Restated Credit
Agreement dated as of June 28, 2007 (as amended and in effect
immediately prior to the date hereof, the “ Existing
Credit Agreement ”; and, as amended by this Amendment,
the “ Credit Agreement ”) by and among the
Borrower, the Parent, such Lenders, certain other financial
institutions, the Agent and the other parties thereto;
WHEREAS, the Borrower desires to repurchase a
portion of the outstanding Loans and Commitments of the Lenders
through an Unrestricted Subsidiary (as hereinafter defined) through
one or more modified Dutch auctions (the “ Repurchases
”);
WHEREAS, in order to induce the Agent and the
Required Lenders (a) to permit the Unrestricted Subsidiary to
become a “Lender” under the Existing Credit Agreement
and (b) to agree to amend certain terms of the Existing Credit
Agreement to permit the Repurchases, the Borrower and the
Unrestricted Subsidiary will agree, among other things, (i) to
subordinate the Loans acquired by the Unrestricted Subsidiary such
that no principal shall be paid to the Unrestricted Subsidiary
until the repayment in full of the outstanding Loans, Letter of
Credit Liabilities and other Obligations owing to the other Lenders
and the termination of all Commitments of such other Lenders, (ii)
to waive any right to receive any interest or fees on the Loans
acquired by the Unrestricted Subsidiary, (iii) to waive all rights
the Unrestricted Subsidiary may have to cast any votes or give any
consent as a Lender under the Credit Agreement or to participate in
any way in the administration of the Credit Agreement or the other
Loan Documents, (iv) that the Loans acquired by the Unrestricted
Subsidiary will be extinguished upon the occurrence of an Event of
Default and (v) to waive any rights to enforce the Loans acquired
by the Unrestricted Subsidiary and to be treated as a subordinate
and separate class of creditor in any bankruptcy or other
insolvency proceeding involving the Borrower; and
WHEREAS, the Borrower, the Agent and the
Required Lenders desire to amend certain terms of the Existing
Credit Agreement on the terms and conditions contained
herein;
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto agree that
the Existing Credit Agreement and the other Loan Documents are
hereby amended as follows:
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Defined
Terms . Capitalized terms used in this
Amendment and not defined herein shall have the meanings provided
in the Existing Credit Agreement.
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Eligible
Assignee . The
definition of “Eligible Assignee” set forth in Section
1.1 of the Existing Credit Agreement is hereby deleted in its
entirety and replaced with the following:
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“‘
Eligible Assignee ’ means (a) a Lender, (b) an
affiliate of a Lender, (c) an Approved Fund, (d) subject to the
limitations set forth in Section 12.5(i), the Unrestricted
Subsidiary and (e) any other Person (other than a natural person)
approved by (i) the Agent and (ii) unless a Default or Event
of Default exists, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided , that
notwithstanding the foregoing, “Eligible Assignee”
shall not include the Borrower or any of the Borrower’s
Affiliates or Subsidiaries except in accordance with clause (d) of
this definition.”
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First
Amendment . The following definition is hereby
added to Section 1.1 of the Existing Credit Agreement in
appropriate alphabetical order:
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“‘
First Amendment ’ means that certain Amendment No. 1
to Amended and Restated Credit Agreement, dated as of August 11,
2009, which amends this Agreement.”
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Loan
Party . The
definition of “Loan Party” set forth in Section 1.1 of
the Existing Credit Agreement is hereby amended by adding the
following sentence to the end of such definition:
“Notwithstanding anything to the contrary contained in this
Agreement, in no event shall the Unrestricted Subsidiary be deemed
to be a Loan Party.”
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Offer
Document . The
following definition is hereby added to Section 1.1 of the Existing
Credit Agreement in appropriate alphabetical order:
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“‘
Offer Document’ means a Notice of an Offer to Purchase
by the Unrestricted Subsidiary, together with all attachments
thereto, substantially in the form of Exhibit T attached
hereto.
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Subsidiary . The definition of
“Subsidiary” set forth in Section 1.1 of the Existing
Credit Agreement is hereby amended by adding the following sentence
to the end of such definition: “Notwithstanding
anything to the contrary contained in this Agreement, in no event
shall the Unrestricted Subsidiary be deemed to be a Subsidiary
except for purposes of Sections 8.1 and 8.2.”
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Unconsolidated Affiliate . The definition of
“Unconsolidated Affiliate” set forth in Section 1.1 of
the Existing Credit Agreement is hereby amended by adding the
following sentence to the end of such
definition: “Notwithstanding anything to the
contrary
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contained in
this Agreement, in no event shall the Unrestricted Subsidiary be
deemed to be an Unconsolidated Affiliate.”
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Unrestricted
Subsidiary . The following definition is hereby
added to Section 1.1 of the Existing Credit Agreement in
appropriate alphabetical order:
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“‘
Unrestricted Subsidiary ’ means either (i) SLG
Acquisition LLC, a Delaware limited liability company or (ii) any
Affiliate of the Borrower in which SLG Acquisition LLC, and no
other Affiliate of the Borrower or any other Person, owns any
Equity Interest, and in either case which has obtained or acquired
an interest in any Loan, Commitment or portion thereof from a
Lender pursuant to an Offer Document and the terms of this
Agreement.”
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Unrestricted
Subsidiary Assignment Agreement . The following definition is hereby
added to Section 1.1 of the Existing Credit Agreement in
appropriate alphabetical order:
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“
Unrestricted Subsidiary Assignment Agreement ’
means, with respect to any assignment to the
Unrestricted Subsidiary pursuant to this Agreement, an Unrestricted
Subsidiary Assignment and Assumption Agreement substantially in the
form of Exhibit S attached hereto.
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Unrestricted
Subsidiary Loan . The following definition is hereby
added to Section 1.1 of the Existing Credit Agreement in
appropriate alphabetical order:
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“
Unrestricted Subsidiary Assignment Agreement ’
means, with respect to any assignment to the
Unrestricted Subsidiary pursuant to this Agreement, an Unrestricted
Subsidiary Assignment and Assumption Agreement substantially in the
form of Exhibit S attached hereto.
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Section 6.1(s)
of the Existing Credit Agreement is hereby amended by adding the
following after the word “Affiliate” in line 3 of such
Section: “other than the purchase of Unrestricted Subsidiary
Loans, if applicable, and any transaction related to such
Unrestricted Subsidiary Loans, in each case, that is permitted by
this Agreement.”
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Section 9.11 of
the Existing Credit Agreement is hereby amended by adding the
following sentence to the end of such
Section: “Nothing in this Section shall be deemed
to prohibit the Unrestricted Subsidiary from (i) acquiring any
Unrestricted Subsidiary Loan so long as such acquisition is
permitted by this Agreement or (ii) paying or funding any amounts
relating to such Unrestricted Subsidiary Loan to a Loan Party so
long as such payment or funding is permitted by this
Agreement.”
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Defaulting
Lenders . Section 3.11(b) of the Existing
Credit Agreement is hereby amended by adding the following sentence
to the end of such section: “In no event shall the
Unrestricted Subsidiary be deemed a Defaulting Lender for the
purposes of this clause (b).”
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Financial
Covenants; Certain Permitted Investments . Solely to the extent consistent
with GAAP, no Unrestricted Subsidiary Loan shall constitute (i)
Indebtedness of the Borrower for the purposes of (x) the financial
covenants set forth in Section 9.1 of the Credit Agreement or (y)
the definition of “Applicable Margin” or “Senior
Indebtedness” or “Senior Debt”, each as used in
the definition of “Applicable Margin”, or (ii) an
Investment for the purposes of Section 9.4 of the Credit
Agreement.
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Investments . Section 9.5 of the Existing Credit
Agreement is hereby amended by replacing the period at the end of
Section 9.5(f) with “; and”, and by adding the
following as clause (g):
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“(g) Investments
in an amount not to exceed $600,000,000 in the aggregate in the
Unrestricted Subsidiary, to be used for the purpose of funding the
Unrestricted Subsidiary’s purchase of Unrestricted Subsidiary
Loans or portions thereof and any other payments of amounts
relating to such Unrestricted Subsidiary Loans as contemplated by
this Agreement and permitted hereunder and under each applicable
Unrestricted Subsidiary Assignment Agreement; provided that
such Investments are not funded (i) from the proceeds of any Loans
hereunder, (ii) from the proceeds of any loans to, or indebtedness
incurred by, the Unrestricted Subsidiary or (iii) directly from the
proceeds of any other loans to, or indebtedness incurred by, the
Borrower or the Parent that would be recourse to the Borrower or
the Parent.”
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Assignments
by Lenders; Unrestricted Subsidiary .
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The following
is hereby added as Section 12.5(b)(i)(C) of the Existing Credit
Agreement:
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“(C) Clauses
(A) and (B) of this subsection (i) shall not apply to any
assignment to the Unrestricted Subsidiary permitted by this
Agreement.”
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Section
12.5(b)(iii)(B) of the Existing Credit Agreement is hereby amended
by adding the following to the end of such Section: “or the
Unrestricted Subsidiary”.
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Section
12.5(b)(iv) of the Existing Credit Agreement is hereby amended by
adding the words “or the Unrestricted Subsidiary” after
the words “if it is not a Lender”.
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Section
12.5(b)(v) of the Existing Credit Agreement is hereby amended by
adding the following to the end of such Section: “other than
to the Unrestricted Subsidiary”.
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The following
is hereby added as Section 12.5(i) of the Existing Credit
Agreement:
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“(i)
Unrestricted Subsidiary . Notwithstanding
anything to the contrary contained herein, the purchase of any
portion of any Loans or Commitments by the Unrestricted Subsidiary,
and the Unrestricted Subsidiary’s status as a
“Lender” for all purposes under this Agreement or any
other Loan Document, shall be subject to the following
provisions:
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Voting
Rights; Communication . For purposes of any proposed
amendment, consent, waiver or other modification hereunder or under
any other Loan Document, or any other vote, consent, request,
demand, authorization or direction hereunder (including, without
limitation, any vote, consent, request, demand, authorization or
direction with respect to any of the matters set forth in Section
12.6) or under any other Loan Document, the Unrestricted Subsidiary
shall be deemed at all times to be a Defaulting Lender (solely with
respect to the Unrestricted Subsidiary’s right to vote on
matters described herein), and the Unrestricted Subsidiary shall
not have any right to participate in the administration of the
Loans, this Agreement or the other Loan Documents. The
Unrestricted Subsidiary shall not be permitted, entitled or have
any rights to (x) attend or participate in any formal or informal
meetings of the other Lenders, (y) receive or participate in any
communications between or among the Agent and/or the other Lenders
or (z) receive, or rely upon, any information, whether written or
oral, disseminated during, or relating to, any such meetings or
communications, or receive any reports, analyses, opinions or other
work product prepared by any consultant, agent or attorney for the
Agent or any other Lender, and the Unrestricted Subsidiary’s
sole entitlement to receive any information is limited exclusively
to information prepared by the Borrower and made available to the
Agent and the other Lenders; provided , that this clause (i)
shall not in any way limit the Unrestricted Subsidiary’s
ability or right to receive or rely upon information that is
available to the public.
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Extinguishment of Unrestricted Subsidiary Loan
upon an Event of Default . Immediately upon the occurrence of
an Event of Default or a default under any of the provisions set
forth on Annex 2 to each Unrestricted Subsidiary Assignment
Agreement, the outstanding principal amount of all Unrestricted
Subsidiary Loans shall be immediately and without further action
extinguished and retired (an “ Unrestricted Subsidiary
Loan Retirement ”) and the Unrestricted Subsidiary shall
thereafter not have any further rights as a Lender under the Loan
Documents with respect to any Unrestricted Subsidiary Loans that
are the subject of an Unrestricted Subsidiary Loan Retirement (the
“ Retired Loans ”), subject to the
following:
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all Commitments
and Letter of Credit Liabilities associated with Retired Loans and
all obligations of the Unrestricted Subsidiary in connection with
such Retired Loans shall remain in full force and effect after an
Unrestricted Subsidiary Loan Retirement; provided , that no
subsequent funding made by the Unrestricted Subsidiary pursuant to
such Commitments and Letter of Credit Liabilities shall be deemed
to be a Loan for the purposes of this Agreement and any such
subsequent funding and/or Obligation relating to such funding shall
instead be deemed to be immediately extinguished and
retired;
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from and after
the date of any Unrestricted Subsidiary Loan Retirement and subject
to the terms of clause (i) of Section 12.5(i), solely for purposes
of calculating all Commitments, Letter of Credit Liabilities and
Commitment Percentages of the Unrestricted Subsidiary and the other
Lenders only, and for purposes of calculating the allocation of any
prepayments of Revolving Loans, the principal amount of all Retired
Loans shall be deemed to be outstanding; and
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no Unrestricted
Subsidiary Loan Retirement shall increase, decrease or otherwise
affect the Commitment Percentage or participation interest in any
Letter of Credit or any Swingline Loan of the Unrestricted
Subsidiary or any other Lender as they exist immediately prior to
the applicable Unrestricted Subsidiary Loan Retirement (with
respect to the Unrestricted Subsidiary and each other Lender, its
“ Retirement Date Commitment Percentage ”) and,
from and after the date of any Unrestricted Subsidiary Loan
Retirement, (i) the Commitment Percentage of the Unrestricted
Subsidiary shall equal the Retirement Date Commitment Percentage of
the Unrestricted Subsidiary on the date immediately prior to the
applicable Unrestricted Subsidiary Loan Retirement and (ii) the
aggregate Commitment Percentage of the other Lenders shall equal
the aggregate Retirement Date Commitment Percentage of such other
Lenders on the date immediately prior to the applicable
Unrestricted Subsidiary Loan Retirement.
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Subordination . All Unrestricted Subsidiary Loans
shall immediately and automatically become fully and completely
junior and subordinate in both payment and priority to the Loans or
portions thereof and all other Obligations held by the other
Lenders. The Unrestricted Subsidiary shall not receive,
and neither the Borrower nor any other Loan Party shall make, any
payment in cash or otherwise (including principal, interest and
fees) on account of any Unrestricted Subsidiary Loan until all
outstanding Loans and Obligations owed to Agent and the other
Lenders have been repaid in full and all Commitments (other than
the Commitment of the Unrestricted Subsidiary), and this Agreement
(other than with respect to the Unrestricted Subsidiary), have all
been terminated in accordance with the terms hereof, and any
payments received by the Unrestricted Subsidiary in contravention
of the foregoing shall be held in trust for the Agent and the
Lenders and delivered to the Agent promptly upon receipt;
provided, however , that the Borrower may, from time to
time, make “Deemed Repayments” on Unrestricted
Subsidiary Loans, as defined in and in accordance with clause (vi)
below. The Unrestricted Subsidiary waives any rights to
a pro-rata share or any other share of any payment of any amount
under this Agreement or any other Loan Document to which it may
otherwise be entitled and further waives any rights it may have
under Sections 3.2 and 3.3. The Unrestricted Subsidiary
further agrees that it shall not exercise any right of set-off or
recoupment it may have hereunder or under Applicable
Law.
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Funding of
Unrestricted Subsidiary Loans; Net Funding. All Revolving Loans shall be made
pursuant to Section 2.1; provided, however, subject to
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clause (v)
below, (1) all fundings of Revolving Loans by Lenders under the
Credit Agreement after the date of the First Amendment shall be net
of the pro rata share of such Revolving Loans that is required to
be funded by the Unrestricted Subsidiary and (2) the Unrestricted
Subsidiary shall be permitted to fund such pro rata share of each
Revolving Loan directly to the Borrower. The
Unrestricted Subsidiary shall not have the right to make or offer
to make any Bid Rate Loans. In no event shall any Lender
be required to make any Revolving Loan in excess of its
Commitment.
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Funding of
Swingline Loans and Letters of Credit . (a) Prior to or simultaneously with
the Borrower delivering any Notice of Swingline Borrowing under
Section 2.3 or the issuance of a Letter of Credit requested by the
Borrower under Section 2.4, in each case subsequent to the
Unrestricted Subsidiary acquiring an Unrestricted Subsidiary Loan,
and (b) with respect to any Swingline Loan and/or any Letter of
Credit outstanding on or prior to the date the Unrestricted
Subsidiary acquires an Unrestricted Subsidiary Loan, the
Unrestricted Subsidiary shall deposit with Agent all amounts that
the Unrestricted Subsidiary may be required to fund as a Lender
under such Sections as determined by the Agent in its reasonable
discretion. On the date that any Swingline Loan is
funded, or if a drawing pursuant to any Letter of Credit occurs, as
applicable, the Agent is authorized to use the monies deposited
pursuant to this clause (v) to fund the Unrestricted
Subsidiary’s share of such Swingline Loan or drawing, or to
make payment to the Agent in accordance with Section 2.4, as
applicable and on such date the Unrestricted Subsidiary shall be
deemed to have made Revolving Loans to the Borrower in an amount
equal to the amount applied by the Agent pursuant to this
sentence. Notwithstanding anything to the contrary
contained in any Loan Document, Lenders other than the Unrestricted
Subsidiary shall not in any event be liable in any way for the
Unrestricted Subsidiary’s failure to fund amounts that it is
required to fund as a Lender under the Loan
Documents. To the extent that any interest or other
amounts shall accrue on the amounts deposited pursuant to the first
sentence of this clause (v), they shall accrue for the benefit of
and shall be paid to the Unrestricted Subsidiary. The
Unrestricted Subsidiary shall pay to the Agent from time to time
such fees as the Agent normally charges for similar services in
connection with the Agent's administration of the account into
which such amounts are deposited.
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Optional and
Mandatory Prepayments and Repayments; Application
. Any payment or
repayment of the principal of Revolving Loans (including any deemed
repayments made to the Unrestricted Subsidiary) made by the
Borrower shall be applied in accordance with Section
3.2. In calculating the application of such payments and
taking into account the agreement of the Unrestricted Subsidiary to
subordinate its receipt of payments on the Unrestricted Subsidiary
Loans, the aggregate amount of any payment or repayment of the
principal amount of Revolving Loans made by the Borrower shall
consist of (x) a cash component equal to the full amount paid by
the Borrower to be distributed to the Lenders (other than the
Unrestricted Subsidiary) on account of their respective Revolving
Loans (the “Cash Repayment”) and (y) a deemed payment
or repayment of principal of the Revolving Loans (each, a
“Deemed Repayment”) held by the Unrestricted
Subsidiary.
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Each Deemed
Repayment shall be in an amount equal to (A) the applicable Cash
Repayment, multiplied by (B) a fraction, the numerator of which is
the Unrestricted Subsidiary's Commitment Percentage and the
denominator of which is the aggregate Commitment Percentage of the
other Lenders. Notwithstanding anything to the contrary
set forth above, if immediately prior to giving effect to any such
payment or prepayment in respect of any Revolving Loans, the
outstanding principal amount of Revolving Loans shall not be held
by the Lenders (including the Unrestricted Subsidiary) pro rata in
accordance with their Commitments in effect at the time such
Revolving Loans were made, then such payment or repayment shall be
applied to the Revolving Loans of the Lenders (other than the
Unrestricted Subsidiary) in such manner as shall result, as nearly
as practicable, in the outstanding principal amounts of the
Revolving Loans being held by such Lenders pro rata in accordance
with their respective Commitments; provided, however, the
Unrestricted Subsidiary shall only receive Deemed Repayments and
shall not receive any payments in cash until all amounts owing to
the other Lenders have been paid in full and their Commitments have
been terminated in accordance with the terms of this
Agreement.
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Unrestricted
Subsidiary Purchase Procedure . The Unrestricted Subsidiary shall
not be permitted to purchase any portion of any Loan or Commitment
from a Lender unless (1) the Unrestricted Subsidiary shall have
complied with the purchase procedures described on Exhibit R
attached hereto and made a part hereof and (2) no Event of Default
or any default (following the expiration of any applicable notice
and cure period) of any of the covenants and agreements set forth
in Annex 2 to each Unrestricted Subsidiary Assignment Agreement
then exists or would result from the consummation of any such
purchase. The Unrestricted Subsidiary shall not be
permitted to acquire any participations in any Loan or Commitment
pursuant to Section 12.5(d). The Unrestricted Subsidiary
shall be subject to the covenants and agreements set forth on Annex
2 to each Unrestricted Subsidiary Assignment Agreement.
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Bankruptcy
Matters . Upon
the occurrence of any of the events described in Sections 10.1(f)
or 10.1(g) (each such event a “ Proceeding ”),
(1) the Unrestricted Subsidiary shall not have any enforcement
rights relating to any Unrestricted Subsidiary Loan, (2) the
Unrestricted Subsidiary shall be treated as a separate class of
creditors for all purposes under, and during the course of, such
Proceeding, subordinate to and separate and apart from Agent and
the other Lenders and (3) the Unrestricted Subsidiary shall not
vote on any proposed plan of reorganization in any Proceeding and
shall not oppose any sale or disposition of any assets of the
Borrower that is supported by the Requisite Lenders and shall not
support any sale of disposition of any assets of the Borrower that
is opposed by the Requisite Lenders, and the Unrestricted
Subsidiary shall be deemed to have either consented or withheld
consent in accordance with this clause (3) under Section 363 of the
Bankruptcy Code of 1978, as amended.
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No Resale By
Unrestricted Subsidiary . The Unrestricted Subsidiary shall
not be permitted to sell, assign or otherwise transfer (whether by
participation or
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otherwise) any
portion of any Unrestricted Subsidiary Loans held by the
Unrestricted Subsidiary or any interest therein.
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Interest . No Unrestricted Subsidiary Loan
shall accrue interest.
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Compensation . The Unrestricted Subsidiary shall
not be entitled to any compensation or any other payments pursuant
to Sections 3.12, 4.1, 4.4 or 12.9.
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Restriction
on the Sale or Pledge of Equity Interests, etc. of Unrestricted
Subsidiary . The Borrower shall not, and shall
not permit any of its Subsidiaries to, sell, assign or otherwise
dispose of, or pledge or grant any Lien on, any Equity Interests of
the Unrestricted Subsidiary.
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Total Return
Swaps . The
Borrower shall only be a counterparty, and shall only permit the
Unrestricted Subsidiary or any Affiliate of the Borrower to be a
counterparty, to any pledge, assignment or transfer of the interest
of any Lender, fully or in any part, in any Loan, Commitment or
portion thereof via any agreement, financial instrument or other
assignment that replicates loan payments under the Credit Agreement
and/or provides for a transfer or assumption of any portion of
economic, legal or other risk of any such loan payments, if such
Lender agrees that:
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such Lender
shall deliver written notice (which notice shall include a
disclosure of all Persons that are party to such transaction) of
such pledge, assignment or transfer to Agent for dissemination on
or prior to the date that such transaction is effectuated;
and
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such Lender
shall be deemed to be, and shall be treated as if it was, an
Unrestricted Subsidiary (notwithstanding the definition thereof)
solely with respect to the Loan or Commitment so pledged, assigned
or transferred, and such pledged, assigned or transferred Loan or
Commitment shall be deemed to be, and shall be treated as if it
was, an Unrestricted Subsidiary Loan (notwithstanding the
definition thereof).
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If the
Borrower, the Unrestricted Subsidiary or any Affiliate of the
Borrower shall become a counterparty to any such pledge, assignment
or transfer in contravention of this Section 7, the same shall
result in an immediate Event of Default.
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Exhibits . The Existing Credit Agreement is
hereby amended by adding thereto Exhibits R, S and T in the forms
of Exhibits R, S and T, respectively, to this Amendment.
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Conditions
Precedent . The effectiveness of this Amendment
is subject to receipt by the Agent of each of the following or
satisfaction (or waiver by the Requisite Lenders) of each of the
following, each in form and substance satisfactory to the
Agent:
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A counterpart
of this Amendment duly executed by the Borrower and each of the
Requisite Lenders;
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A Guarantor
Acknowledgement duly executed by each Guarantor in the form
attached hereto as Exhibit A; and
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Evidence that
all fees and expenses payable to the Joint Lead Arrangers and the
Lenders in connection with this Amendment have been
paid.
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Representations . Each of the Borrower and the Parent
represents and warrants to the Agent and the Lenders
that:
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Authorization . Each of the Borrower and the Parent
has the right and power, and has taken all necessary action to
authorize it, to execute and deliver this Amendment and to perform
its obligations hereunder and under the Credit Agreement in
accordance with their respective terms. This Amendment
has been duly executed and delivered by a duly authorized officer
of each of the Borrower and the Parent and each of this Amendment
and the Credit Agreement is a legal, valid and binding obligation
of the Borrower and the Parent enforceable against each of them in
accordance with its respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors rights generally and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability.
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Compliance
with Laws, etc . The execution and delivery by each
of the Borrower and the Parent of this Amendment and the
performance by each of the Borrower and the Parent of their
obligations under this Amendment and the Credit Agreement in
accordance with their respective terms, do not and will not, by the
passage of time, the giving of notice or otherwise: (i)
require any Government Approvals or violate any Applicable Laws
(including Environmental Laws) relating to the Borrower, the Parent
or any other Loan Party; (ii) conflict with, result in a breach of
or constitute a default under the organizational documents of the
Borrower, the Parent or any other Loan Party, or any indenture,
agreement or other instrument to which the Borrower or any other
Loan Party is a party or by which it or any of its respective
properties may be bound; and (iii) result in or require the
creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Borrower, the
Parent or any other Loan Party.
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No
Default . No
Default or Event of Default has occurred and is continuing as of
the date hereof or will exist immediately after giving effect to
this Amendment.
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Reaffirmation of Representations by Borrower and
Parent . Each
of the Borrower and the Parent hereby represents and warrants that
the representations and warranties made by each of the Borrower and
the Parent to the Agent and the Lenders in the Credit Agreement and
the other Loan Documents to which it is a party are true and
correct in all material respects on and as of the
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date hereof to
the same extent as though made on and as of such date, except to
the extent that such representations and warranties specifically
relate to an earlier date.
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Document
References . All references to (i) the
“Credit Agreement” in each Loan Document shall be
deemed to be a reference to the Existing Credit Agreement as
amended by this Amendment; and (ii) any of the Loan Documents
referenced in any other Loan Document shall be deemed to be a
reference to such Loan Document as amended by the terms of this
Amendment.
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Full Force
and Effect . Except as amended by this
Amendment, the Existing Credit Agreement and each of the other Loan
Documents shall continue to remain in full force and
effect. The amendments contained herein shall be deemed
to have prospective application only, unless otherwise specifically
stated herein.
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Headings . Each of the captions contained in
this Amendment are for the convenience of reference only and shall
not define or limit the provisions hereof.
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Governing
Law . THE
PROVISIONS OF THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, DETERMINED WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, AND ANY APPLICABLE LAW
OF THE UNITED STATES.
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Counterparts . This Amendment may be executed in
one or more counterparts, each of which shall constitute an
original and all of which when taken together shall constitute one
binding agreement.
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Severability . The provisions of this Amendment
are severable, and if any one clause or provision hereof shall be
held invalid or unenforceable in whole or in part, then such
invalidity or unenforceability shall affect only such clause or
provision, or part thereof, and not any other clause or provision
of this Amendment.
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Expenses . The Borrower shall reimburse the
Agent for all reasonable costs and expenses (including reasonable
attorneys’ fees) incurred by the Agent in connection with the
preparation, negotiation and execution of this Amendment and the
other agreements and documents executed and delivered in connection
herewith.
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Benefits . This Amendment shall be binding
upon and shall inure to the benefit of the parties hereto, the
Unrestricted Subsidiary, and each of their respective successors
and permitted assigns.
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[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have
caused this Amendment No. 1 to Amended and Restated Credit
Agreement to be executed and delivered by their authorized officers
all as of the day and year first above written
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SL GREEN
OPERATING PARTNERSHIP, L.P.
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By:
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/s/ Gregory F. Hughes
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Name:
Gregory F. Hughes
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Title:
Chief Operating Officer and Chief Financial Officer
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SL GREEN REALTY
CORP.
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By:
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/s/ Gregory F. Hughes
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Name:
Gregory F. Hughes
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Title:
Chief Operating Officer and Chief Financial Officer
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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WACHOVIA BANK , NATIONAL ASSOCIATION, as Agent,
as a Lender and as Swingline Lender
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By:
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/s/ William F. Carmody
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Name: William
F. Carmody
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Title: Managing
Director
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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KEYBANK
NATIONAL ASSOCIATION
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By:
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/s/ Meredith H.
Houseworth
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Name: Meredith
H. Houseworth
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Title: Vice
President
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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ING REAL ESTATE
FINANCE (USA) LLC
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By:
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/s/ Michael E. Shields
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Name: Michael
E. Shields
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Title: Senior
Director
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By:
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/s/ Karen L. Ramos
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Name: Karen L.
Ramos
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Title: Vice
President
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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BANK OF
AMERICA, N.A.
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By:
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/s/ Stephen B. Carlson
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Name: Stephen
B. Carlson
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Title: Vice
President
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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DEUTSCHE BANK
TRUST COMPANY AMERICAS.
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By:
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/s/ James Rolison
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Name: James
Rolison
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Title: Managing
Director
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By:
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/s/ George R. Reynolds
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Name: George R. Reynolds
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Title:
Director
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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JPMORGAN CHASE
BANK, NA.
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By:
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/s/ Mohammad S. Hasan
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Name: Mohammad
S. Hasan
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Title:
Associate
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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THE BANK OF
NOVA SCOTIA.
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By:
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/s/ George Sherman
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Name: George
Sherman
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Title:
Director
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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FORTIS BANK
SA/NV, NEW YORK BRANCH
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By:
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/s/ Jack Au
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Name: Jack
Au
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Title:
Director
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By:
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/s/ Barry K. Chung
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Name: Barry K.
Chung
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Title:
Director
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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LANDESBANK
HESSEN-THURINGEN GIROZENTRALE.
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By:
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/s/ Robert W. Becker
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Name: Robert W. Becker
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Title: Senior
Vice President, Real Estate Finance
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By:
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/s/ Gianna Giola
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Name: Gianna Giola
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Title: Real
Estate Finance
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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LEHMAN BROTHERS
COMMERCIAL BANK
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By:
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/s/ Gary Murray
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Name: Gary
Murray
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Title: Chief
Credit Officer
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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BANK OF AMERICA,
N.A., successor by merger to MERRILL LYNCH BANK USA
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By:
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/s/ Stephen B. Carlson
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Name: Stephen B. Carlson
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Title: Vice
President
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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MORGAN STANLEY
BANK, N.A.
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By:
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/s/ Melissa James
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Name: Melissa James
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Title:
Authorized Signatory
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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BANK OF CHINA,
NEW YORK BRANCH
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By:
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/s/ William W. Smith
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Name: William W. Smith
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Title: Chief
Lending Officer
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD
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By:
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/s/ James T. Taylor
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Name: James T. Taylor
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Title: Vice President
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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CHANG HWA COMMERCIAL BANK, LTD., NEW YORK
BRANCH
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By:
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/s/ Eric Y.S. Tsai
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Name: Eric
Y.S. Tsai
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Title: Vice
President & General Manager
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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EMIGRANT REALTY
FINANCE LLC
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By:
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/s/ Jeffrey A. Warner
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Name: Jeffrey A. Warner
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Title: Managing
Director
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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FIRST
COMMERCIAL BANK, NEW YORK AGENCY
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By:
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/s/ May Y.M. Hsiao
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Name: May
Y.M. Hsiao
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Title:
Assistant General Manager
3 August 2009
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[Signatures Continued on Next
Page]
[Signature Page to Amendment No. 1
to Amended Credit Agreement
with SL Green Operating Partnership,
L.P.]
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UNION BANK OF
CALIFORNIA N.A.
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By:
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/s/ Jack Kissane
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Name: Jack
Kissane
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Title: Vice
President
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[S
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